Haryana

Ambala

CC/11/2022

Ved Raj - Complainant(s)

Versus

State Bank of India - Opp.Party(s)

In Person

02 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	11 of 2022
Date of Institution	:	05.01.2022
Date of decision	:	02.11.2023

Ved Raj S/O Amar Nath, Resident of Village & PO-Laha, Tehsil- Naraingarh, Distt-Ambala (Haryana).

          ……. Complainant.

Versus

1. State Bank of India through Sh. M.K. Mall C/o Reserve Bank of India, 4^th Floor, Sector 17, Chandigarh.

IInd Address:

General Manager, State Bank of India, Local Head Office, Sector-17-A, Chandigarh.

2.  Zonal Manager, SBI Local Head Office, Sector-17A, Chandigarh-160017. (Through its Zonal Manager).

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Mohd. Naim, Advocate, counsel for the complainant.

                    Shri Anish Kumar Sharma, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(a) To refund the amount Rs.80,000/-, in the account of the complainant.

(b)To pay Rs.20,000/- as compensation for mental agony and harassments.

(c) To pay Rs.5,000/- as cost of litigation.

Or

Grant any other relief which this Hon’ble Commission may   deems fit.

2.           Brief facts of the case are that the complainant is an Ex-serviceman and is having his Saving Bank account bearing No-11088485174 with OP No.1. On 01.07.2020, a sum of Rs.40,000/- was withdrawn from the above account of complainant. Similarly on 02.07.2020 a sum of Rs.20,000/- and on 03.07.2020 a sum of Rs.20,000/- was also withdrawn from the above mentioned account of the complainant, and in this way a total sum of Rs.80,000/- has been withdrawn from the account of complainant  from his account held with OP No.1. However, the complainant has not withdrawn this amount of Rs.80,000/- and the same has been withdrawn by some un-known person from his account. On 06.07.2020, when the complainant went to the Branch of OP No.1 for withdrawal of amount from his account, only then he came to know that Rs.80,000/- had already been unauthorizedly withdrawn from his account.  On 30.07.2020, he lodged complaint No- 13221055072000060 dated 30-7-2020 with Police Station, Naraingarh qua the above illegal deduction of Rs.80,000/- from his account by someone playing Fraud upon him. In the month of Sep 2020 the complainant received reply of his application which was moved to OP No.1 but no satisfactory reply was received. The complainant sent two other complaints to the SBI higher authorities vide complaint No-202122007012326 and 202122007020120, but still no reply has been received till date. By not refunding the amount aforesaid, which has been fraudulently withdrawn from the account of the complainant, the OPs have committed deficiency in service and adopted unfair trade practice. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that the present complaint is not maintainable; the complaint is totally a misuse of process of law etc. On merits, it has been stated that if any unlawful withdrawal has been made from the account of complainant, then he should have immediately blocked his bank account, which is very easy process but the complainant himself had not blocked his bank account from 30.6.2020 to 3.7.2020, whereas the transactions were made from his bank account from 30.6.2020 to 3.7.2020. It seems that the complainant himself had withdrawn the said amount from his bank account, as he has confirmed that SMS were received on his registered mobile. Even as per report from Bulk SMS site, SMS alerts were delivered to the complainant on real time basis. On 6.7.2020, the complainant had reported the matter to OP No.1 vide his complaint, which was thoroughly investigated and investigation report was received on 22.10.2020 in which it is clearly mentioned that no lapse is observed on the part of any official of home branch of customer. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of complainant as Annexure C-1/A alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Divakar, Manager, State Bank of India, Agricultural Development Branch, Naraingarh, District Ambala as Annexure OP-A/1 alongwith documents as Annexure OP-1 to OP-5 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the complainant and learned counsel for the OPs and have also carefully gone through the case file
6.           Learned counsel for the complainant submitted that an amount of Rs.80000/- has been fraudulently withdrawn from the account of the complainant, for the period from 01.07.2020 to 03.07.2020, without his knowledge. On 06.07.2020, the complainant went to the Branch and came to know about the unauthorized transactions done in his account and reported the matter to the OPs, they failed to take any action and also did not credit the said amount in his account, by ignoring the notification dated 06.07.2017 of the Reserve Bank of India (Notification taken on record and marked as ‘A’). The said act of the OPs amounts to deficiency in providing service, negligence and adoption of unfair trade practice. In support of his contention, the learned counsel for the complainant has placed reliance on the judgment dated 21.12.2020, passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of HDFC Bank Limited Vs. Jesna Jose. 
7.           On the contrary, the learned counsel for the OPs submitted that since it was found that there was no lapse on the part of any staff of the OPs and on the other hand, the complainant had failed to block his account when he came to know about the said transactions, therefore, the request of the complainant claiming refund of the amount in dispute was rightly rejected by the OPs.
8.            It is evident from the record that the claim of the complainant with regard to refund of his amount of Rs.80,000/- fraudulently withdrawn from his account, was rejected by the OPs on the basis of the report dated 22.10.2020, Annexure OP-4 having been issued by Ms.Ankita Jaswal, Investigation Officer,  wherein it has been opined that “…No staff lapses is observed on the part of any official of home branch of customer...”. However, from the contents of this report it is clearly coming out in para no.9 thereof that the OPs have not obtained any CCTV footage from the ATM Linked with their Branch for the period in which the said transactions took place. In our considered opinion the CCTV footage could be said to be a material evidence to come to the conclusion as to who has actually withdrawn the amount in dispute from the account of the complainant but the OPs failed to obtain the same for the reasons best known to them. It is significant to mention here that the OPs have failed to prove anything wherefrom it could be revealed that the ATM card details/credentials of the Bank viz, Card No.CVV, OTP etc were compromised by the complainant, using which the fraudster has performed the said unauthorized transactions.
9.           However, this fact cannot be ignored that someone had hacked the account/ATM credentials of the complainant, which resulted into fraudulent withdrawal of his amount of Rs.80000/-, the OPs therefore cannot wriggle out of their liability towards customers casted upon them by RBI for safekeeping of the Banking Systems and maintaining checks and balances in the same. In the case of Punjab National Bank and Anr. V Leader Valves II (2020) CPJ 92 (NC), the Hon’ble National  Commission while addressing the question of liability of a Bank in case of unauthorized and fraudulent electronic banking transactions, has observed as under:

"11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer."

Similar observations were made by the Hon’ble National Commission in HDFC Bank Limited vs Jesna Jose, (Supra).

10.           In the RBI circular bearing No. DBR.No.Leg.BC.78/09.07.005/2017-18 dated 6th July 2017, issued by the Reserve Bank of India to all banks, it is stated as under: -

Limited Liability of a Customer

(a) Zero Liability of a Customer

"6. A customer's entitlement to zero liability shall arise where the unauthorised transaction occurs in the following events:

Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).

Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.

(b) Limited Liability of a Customer

                   7.A Customer shall be liable for the loss occurring due to unauthorized transactions in the following cases:

                   (i) In cases where the loss is due to negligence by a customer, such as  where he has shared the payment credentials, the customer will bear the entire loss until he reports the unauthorized transaction to the  bank. Any loss occurring after the reporting of the authorized transaction shall be borne by the Bank.

                   (ii) In cases where the responsibility for the unauthorized lies neither  with the bank nor with the customer, but lies elsewhere in the system and when there is a delay (of four to seven working days after receiving the communication from the bank) on the part of the customer in notifying the bank of such a transaction, the per transaction liability of the customer shall be limited to the transaction    value or the amount mentioned in Table 1, whichever is lower.

11.           From the statement of account Annexure C-1, it is clear that on 01.07.2020 an amount of Rs.40,000/- was deducted from the account of the complainant. As per the complainant, said amount of Rs.40,000/- was deducted from his account on 01.07.2020 fraudulently and he informed the OPs on 06.07.2020. Since the complainant had informed about the transaction done on 01.07.2020, to the Bank on 06.07.2020 i.e after three working days but within seven working days from the date of deduction of amount of Rs.40,000/-, therefore, as per Clause 7 (ii) of the notification, referred to above, the bank is liable to pay the amount of Rs.10,000/-, to the complainant. From the statement of account it is also evident that on 02.07.2020, the amount of Rs.20,000/-, was deducted and on 03.07.2020, the amount of Rs.20,000/- was deducted. As the complainant had informed the Bank about the said transactions on 06.07.2020 i.e within three working days, from the date of deduction of said amount, therefore, as per Clause 6 (ii) of the aforesaid notification, bank is liable to pay the said amount of Rs.40,000/-, to the complainant. As per the notification of the RBI, the OPs are thus liable to pay in total Rs.50,000/- (Rs.10,000/- + Rs.40,000/-) to the complainant. They are also liable to pay compensation for the mental agony and physical harassment suffered by the complainant alongwith litigation expenses.
12.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-
    1. To pay the amount Rs.50,000/-, to the complainant.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.  

The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 8% per annum for the period of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 02.11.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President