Date of filing: 29.02.2016                                                              Date of disposal: 09.01.2018

Complainant: Sukanta Chowdhury, S/o. Lt. Madhusudhan Chowdhury, resident of

                          Shyamraypara, Kalna, P.O. & P.S.-Kalna, Dist.-Burdwan, Pin-713409.

-VERSUS-

Opposite Party: 1. State bank of India, Kalna Branch, represented by its Branch Manager,

                                   having its office at Bhaduripara, Kalna, P.O. & P.S.-Kalna, Dist.-Burdwan,

                                   Pin-713409.

                              2. State Bank of India, Burdwan Main Branch, represented by its Zonal

                                   Manager, having its office at Court Compound, Kachhari Road, Town,

                                   P.O., P.S. & Dist.-Burdwan, Pin-713101.

Present: Hon’ble President: Smt.Jayanti Maitra(Ray).

   Hon’ble Member:  Miss Nivedita Ghosh.

  Hon’ble Member :  Dr. Tapan Kr. Tripathy.

Appeared for the Complainant                      : Ld. Advocate, Suvro Chakraborty.

Appeared for the Opposite Party No.1 & 2 :  Ld. Advocate, Soham Som.

JUDGEMENT

This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to refund of Rs. 95,590/-, to pay Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.50,000/- as litigation cost to the complainant.

The complainant’s case in short is that he has a joint account with his mother in the O.P. Bank bearing account No.11169735975.  After issuing of ATM card by the O.P. No.1 the complainant on 13.11.2014 submitted a written representation before the O.P. No.1 by requesting them to provide SMS alert service facility.  The complainant updates his pass book on 21.7.2015 when the total credit balance was of Rs.2,08,186.27/-.  On 03.08.2015 the complainant went to an ATM of United Bank of India for balance enquiry the complainant came to learn that available balance in his account is Rs.87,403.73/-.  By knowing the fact the complainant became surprised and he tried to withdraw money through that ATM but he failed.  Lastly, at about 08.28 P.M.  the ATM machine provide a receipt by mentioning “ Sorry for Inconvenience. No fund available”.

On 3.8.2015 the complainant got a phone call from a mobile being No.9643542880 where make claiming himself as Bank Manager and informed the complainant that his account became blocked.  Thereafter the complainant rushed to the O.P. Bank on 4.8.2015 for update his pass book and learn that from 22.7.2015 to 27.7.2015 someone has withdrawn one after another amount from his account.  It is pertinent to mention that in respect of those transaction no SMS has been received by the complainant from the O.P. Bank.

On 5.8.2015 the complainant lodged a GDE before the Kalna P.S. being No.200/2015.  The complainant also submitted a written representation before the O.P. Bank on  5.8.2015 but O.P. No.1 did not take any step.  Thereafter the complainant made an application before the Banking Ombudsman on 16.8.2015.  In reply of the said letter the O.P. No.1 vide their letter dated 29.8.2015 informed that they investigate the matter and they will inform about the investigation report shortly.  Thereafter on 26.10.2015 the O.P. bank handed over a letter dated 1.9.2015 from which it is came to learn that the transactions are  CNP (Card Not Present) type of transaction and the O.P. Bank sent OTP (One Time Password) to the miscreant for every CNP  transaction.  In this context it is important that for CNP transaction the ATM card number and the security code number is required and those numbers are only within the knowledge of the complainant and the Bank Authority.  Moreover no such one time password was provided in the mobile number of the complainant which is registered before the O.P. No.1.  The O.P. admitted in their letter dated 01.09.2015 that they sent OTP to the transaction maker but they did not bother to sent a single SMS to the complainant against such transaction.  On the other hand in said letter the O.P. stated that they will refund the amount if possible but till date no satisfactory result has been received.  The O.P. Bank only for shifting their liability have mentioned some clarification and/or allegations in their letter.

For safeguard the complainant transfer the remaining balance of Rs.1,10,015/- to his another account on 14.8.2015.  On 11.12.2015 the complainant received a letter from the O.P. Bank along with a copy of letter dated 1.9.2015.  Thereafter the complainant sent another letter to the Banking Ombudsman on 27.10.2015 requesting them to take proper step for refunding the money into his account but till date no reply has been received.  About SMS alert the O.P. Bank stated that as the first holder of the account is the mother of the complainant so no massage alert has been sent to the mobile number of the complainant.  Finding no other alternative the complainant filed this case before this Forum for relief as stated above.  

The O.P. No.1 & 2 jointly contested this case by filing written version denying all the material allegation as alleged by the complainant.  These O.P. stated that the complainant is a customer of O.P. No.1 and according to the prayer of the complainant the O.P. No.1 issued a ATM/Debit card to the complainant bearing No.622018001060001400.  The complainant used his ATM/Debit Card by issuing four digit identification number (confidential number) to make online marketing from 22.7.2015 to 27.7.2015,  which is clearly reflected from the transaction details dated 1.9.2015 supplied by the AGM (ATM-OPS) and the said paper is already filled by the complainant.  The O.Ps. have verified the records and found that the online transaction of the complainant on the said dates were successful.  ATM/ Debit Card can only be used if the customer inputs his four digit identification number which is selected by the customer and no one can operate without putting four digit identification number.  In the interest of security, the customer is advised to retain this PIN in his memory.  The reverse of the ATM/Debit Card has a magnetic strip contain the card holder’s details.  This card can be used to gain entry into ATM enclosure by swiping it in the access lodge and for online purchasing by using the card details and the confidential four digit identification number supported by the order of Revision Petition No.3182/2008 dated 7.4.2011 of NCDRC.

The O.P. No.1further submits that the petitioner customer operated the ATM cum Debit card so many times for online marketing and according to the statement of account and the transaction details of the said ATM cum Debit card, all the transaction of the complainant were successful but the complainant has intentionally suppressed the real fact and trying to obtain undue gain by claiming Rs.95,590/- as refund and Rs.50,000/- as compensation for tension and mental agony and harassment and Rs.50,000/- as litigation cost.  The O.Ps. sent each and every transaction massage to the complainant which is clearly reflected from the letter of the complainant dated 5.8.2015 and 16.8.2015 and the transaction massages of the said account of the complainant from 22.7.2015 to 27.7.2015 were also sent to the complainant.  Not only that the complainant also  unable to prove that he has not received said massages, because complainant has not make the party to his mobile network service provider to prove that there is no network problem of his mobile network service provider and the O.P. has not sent any massage to the complainant regarding the transaction.  The complainant has requested verbally over phone ‘to hold his account because some miscreants wants to hack his account’ and according to his verbal request this O.P. hold the account of the complainant.  Thereafter the complainant debit the amount of Rs.1,10,015/- from his SB account by withdrawing the hold.

That O.P. also stated that O.P. collected the transaction details vide TXN dated 22.7.2015 to 27.7.2015 in connection with S.B. Account number of the complainant vide No.1169735975 from the ATM switch centre which is already submitted by the complainant vide Annexure-6 and from the said transaction it is clear that the complainant has done the online marketing by his ATM-cum Debit card from his account and the said online marketing transaction are successful and in the said transaction details it is clearly mentioned that the safe custody of the ATM card and pin is the primary responsibility of the card holder and the bank cannot be held responsible for the same.  Any ATM transaction cannot be successful in absence of both card and pin details.  Though it is not the responsibility of the bank to investigate about the online marketing of the complainant but for the sake of the borrower as well as the complainant O.P. investigate about the online marketing transaction with the merchants and ATM switch centre to stop transaction and get refunds if possible which is clearly mentioned in the transaction details in Annexure-6.  The OTP was sent to the mobile of the complainant on the said date from the State Bank of India call centre, which is already disclosed by the O.P.  Hence, this case and prayed for dismissed the instant case with cost.

DECISION WITH REASON

            To prove his case the complainant has submitted his evidence where he stated all this fact as per the complaint petition and prays as per prayer of his petition.

            O.P. did not adduce any evidence but filed written version supported by affidavit.  During hearing of this case the petition prayed  for supplying information from register of the list of SMS or massages received by his mobile No.9434512524 between 21.7.2015 to 28.7.2015 and O.P. in reply  stated that OTP was sent to the mobile of the complainant on the same date from the SBI Call Centre and it is very much disclosed by the O.Ps. in their written version and they have no further documents to produce in this regard.  Both sides submitted their arguments in details. 

            Complainant’s case is that he received a phone call from a mobile No.9643542880 by somebody claiming himself as Bank Manager who informed the complainant that his account became blocked.  However, the complainant did not disclose anything whether he supplied his ATM details and the fraudulent Pin number to any stranger or to that person in response to the above mentioned phone call.  However, it is the responsibility of the customer for his safety that ATM details and Pin number should not be disclosed to anybody.  It is not the responsibility of the Bank.  However, the O.P. investigated about the online marketing transaction with the merchant and ATM Switch Centre be stopped further transactions and get refund if possible.   Annexure-6, is supplied by the O.P. before this Forum  for this reason.  The ATM transaction of the complainant will never be successful in absence of ATM Card and Pin details.  All the transactions were successful and money was debuted from the account of the complainant.   O.P. has no deficiency and negligence in this regard.  O.P. also cited the order of Hon’ble NCDRC in Revision Petition No.3182/2008 dated 7.4.2011 wherein Hon’ble NCDRC hold that ‘without the ATM Card and knowledge of the Pin number, it is not possible for money to be withdrawn by any unauthorized person from an ATM and any fraudulent withdrawals may occur either  because the ATM Card or the Pin number fell in wrong hands’.   Therefore, safety and security of the ATM Card and Pin number is the responsibility of the card holder and the bank cannot be held liable for any such misuse or wrong handling of the ATM Card.  Petitioner admitted that he received SMS alert where from he came to know  for every such purchase from his account from 22.7.2015 to 27.7.2015 which he also admitted in his letters dated 5.8.2015 and 16.8.2015.  He admitted such transaction and receiving of massage in his mobile number.  However this Forum tried to collect details of the call list or massage list from 21.7.2015 to 28.7.2015 and BSNL Authority was directed accordingly.  But unfortunately BSNL sent letter dated 28.6.2017 addressed to this Forum that they cannot provide CDR of last one year and data available from 1.7.2016 to 23.6.2017 only.  They are unable to provide the list of SMS or message for the period from 21.7.2015 to 28.7.2015 in respect of Mobile No.9434512524 of the complainant.   From the evidence on record as well as documents filed by the O.Ps. it appears to this Forum  that complainant somehow disclosed his details of ATM Card and Pin number to some unauthorized person and suffering a loss of Rs.95,590/- from his account.  It is also clear soon thereafter that he on 14.8.2015 transfer the remaining balance of Rs.1,10,015/- to his another account from the said account for his safe guard.  The same was compiled by the O.P. on request of the complainant.  This Forum do not find any deficient and negligent act  on the part of the O.P. and from the judgment of the Hon’ble National Commission in Revision Petition it is clear that it is responsibility of the complainant to keep his ATM Card details and Pin number in safety and not to disclose the details of ATM Card and Pin number.  Even he is advised to keep his pin number in his memory.

            In the light of the observation of our discussion we find that petition is not entitled to get any relief in this case and O.P. is neither negligent nor deficient in providing the service causing any loss of Rs.95,590/- as alleged.  We do not find any unfair trade practice and harassment by the O.Ps.  Hence, the consumer complaint case fails.   C.F. paid is sufficient.  Hence, it is

Ordered

that the case be and the same  is dismissed on contest against the O.Ps. without any cost.

Let the copies of this order be supplied to the parties free of cost.

                                                                                                         Jayanti Maitra (Ray)

             Dictated and corrected by me.                                                          President       

                                                                                                                    D.C.D.R.F., Burdwan

                   Jayanti Maitra (Ray)                  

                           President

                   D.C.D.R.F., Burdwan

              (Nivedita Ghosh)                                                              (Dr. Tapan Kr. Tripathy)

                    Member                                                                             Member    

            D.C.D.R.F., Burdwan                                                            D.C.D.R.F., Burdwan