DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/111 of 4.6.2015

                                      Decided on:        31.5.2016

1.      Salim S/o Late Sh.Sunder Singh S/o Sh.Fateh Singh, permanent resident of House No.B-1/4301, Backside of Punjab National Bank, Old Kachaihiri Road, Masjid Colony, Rajpura, Tehsil Rajpura, District Patiala .

2.      Sabri, aged about 66 years widow of Late Sh.Sunder Singh R/o H.No.B-1/4301, Masjid Colony, Old Court Road, Rajpura, District Patiala.

3.      Nasima, wife of Sh.Suleman, R/o H.No.1786/9, Mohalla Gobindpura, Mani Majra, UT, Chandigarh.

4.      Nasrina W/o Sh.Tarsem Khan R/o H.No.1133, Mohalla Gobindpura, Mani Majra, UT, Chandigarh.

                                                                           ………...Complainants

Versus

1.      State Bank of Patiala through its Managing Director, Head Office, The Mall, Patiala.

2.      State Bank of Patiala, IOC(Indian Oil Corporation) Branch, through its Branch Manager, Near Railway Station, Patiala.

                                                                                       …………….OPs

Complaint under Section 12 of the

                                      Consumer Protection Act.

                                       QUORUM

                                      Sh. A.P.S.Rajput, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainants: Sh.Naveen Trehan, Advocate

For Ops:                       Sh.Hemant Nanda, Advocate

                                         ORDER

A.P.S.Rajput, PRESIDENT

1. Complainant Salim S/o Late Sh.Sunder Singh S/o Sh.Fateh Singh resident of House No.B-1/4301, Backside of Punjab National Bank, Old Kachaihiri Road, Masjid Colony, Rajpura has filed this complaint against the opposite parties (hereinafter referred to as the Ops) under Section 12 of the Consumer Protection Act,1986(for short the Act).The brief facts of the complaint are as under:
2. It is the case of the complainant that his father Sh.Sunder Singh, unfortunately who died on 20.8.2013, was having bank account No.55005465805 with Op no.2 and  retired as Inspector from the Dairy Development Department at Patiala. The pension of the father of the complainant was being credited in the above said bank a/c number, maintained with Op no.2.
3. It is averred in the complaint that the father of the complainant being the patient of heart, sugar and kidney had underwent dialysis at Ivy Hospital, Sector 71, Mohali on 22.6.2013 and the payment of Rs.2400/- was made by swapping his ATM cum debit card at the said hospital. The father of the complainant again got himself checked up on 24.6.2013.After taking the treatment, the father of the complainant approached Op no.1 on 4.7.2013 for getting his bank account pass book up dated. It is averred that after getting the pass book up dated, the father of the complainant was surprised to know that on 23.6.2013 an amount of Rs.10,000 + Rs.10,000 + Rs.10,000 + Rs.10,000/- + Rs.6 was withdrawn illegally and unauthorized from Vijaya Bank and further an amount of Rs.10,017 + Rs.10,017 + Rs.10,017 + Rs.10,017 was withdrawn from Canara Bank ATM, at Trivandrum on the same day and Rs.6/- were withdrawn from IHNCT ATM, Kovalan. It is further averred that again on 24.6.2013  an amount of Rs. 5217/-, Rs.10,107/- + Rs.10,107 + Rs.9917/- was withdrawn from Canara Bank ATM at Trivandrum. It is further averred that in this way on 23.6.2013 a total sum of Rs.80,000/- was withdrawn in a day from the ATM whereas, as per RBI/SBOP rules/regulations not more than Rs.40,000/- can be withdrawn in a day through ATM cum debit card, which is clearly the violation of rules and regulations of the Bank as well as RBI. It is averred that the father of the complainant had underwent treatment for the period from 22.6.2013 to 3.7.2013 and as such it was not possible for the father of the complainant to go to Trivandrum and to use his ATM card on 23.6.2013.
4. It is averred that vide letter dated 5.7.2013, the father of the complainant brought the matter to the notice of Op no.2 but the Op instead of taking suitable steps in the matter, demanded copy of the FIR by issuing letter No.32 dated 31.7.2013. It is further averred that from the entries got made in the bank pass book, it is transpired that the Op bank has illegally charged Rs.112/- and Rs.112/- towards ATM maintenance charges, whereas the bank must have blocked the ATM after 5.7.2013.It is averred that no CCTV footage of the ATM(s) were provided to the complainant despite the requests made by the father of the complainant in this regard.
5. It is further the case of the complainant that his father also made complaint before Banking Ombudsman, Chandigarh regarding the illegal/unauthorized withdrawal of the amount, which was closed under Section 13(c) of the Banking Ombudsman Scheme,2006 vide letter dated 30.12.2013 and advised the father of the complainant to take recourse of legal action for the redress of  his grievance  but unfortunately his father expired on 20.8.2013.
6. It is averred in the complaint that thereafter the complainant approached the General Manager (R.N.W.)(IT),Head Office, Patiala of the OP- Bank through letter dated 9.9.2013. The Op Bank sent a casual reply dated 28.3.2014 stating that the transactions were successful. No sincere efforts were made by the Op Bank. It is further averred that the OP Bank failed to comply with the Code of Bank’s Commitment to Customers ( CBCC) issued in January,2014 and also failed to follow the guidelines laid down by RBI vide circular dated 1.7.2013 RBI/2013-14/60 DBOD No. FSD. BC.  4/24.01.011/2013-14. It is averred that the Bank has no legal authority to debit the amount of Rs.1,15,248/- to the account of the deceased father of the complainant and is liable to credit the same in the account of the complainant. The complainant also got sent a legal notice dated 3.5.2014 upon the Ops. The Ops sent the reply to the legal notice dated 23.5.2014. The complainant rebutted the same vide letter dated 23.5.2014. A claim petition dated 13.8.2014 was also filed by the complainant before the Permanent Lok Adalat which was decided on 20.4.2015 with a liberty to the complainant to approach the appropriate Forum for redressal of his grievance. The Ops failed to remit the amount which was withdrawn from the Bank account of the father of the complainant unauthorized .Thus there is unfair trade practice and deficiency in service on the part of the Ops.  Hence this complaint with a prayer for a direction to the Ops to credit the amount of Rs.1,15,248/- alongwith interest @9% per annum from the date of withdrawal till realization to the account of the deceased father of the complainant, Rs.50,000/- as compensation for the harassment , mental agony and pain and Rs.15000/- as costs of the litigation.
7. On notice the Ops appeared and filed the written version having taken the preliminary objections interalia  that the complainant is not a consumer within the meaning of the Act. That the complaint is bad for non joinder of necessary parties. On merits, it is admitted that late Sh.Sunder Singh was having Bank account with Op no.2. It is stated that the complainant has not produced any record to the Bank enabling him to act on behalf of Sh.Sunder Singh as an only legal heir. It is further submitted that the Bank has an established system, that as and when any withdrawal is made through the ATM, an SMS to that fact is sent on the registered mobile number of the customer. It is denied that late Sh.Sunder Singh knowledge about the entries dated 23.6.2013 and 24.6.2013.No amount can be withdrawn through ATM without the use of password of the debit/credit card holder  and it is the duty of the customer to keep the ATM card in his possession carefully. It is admitted that the cash was withdrawn through the ATMs of Vijaya Bank and Canara Bank in Trivandrum and Kovalan. It is stated that as per Banking technology , ATM can be used anywhere in India and Bank is not bound to take clarification from the customer regarding the operation of ATM outside the place and there is no liability of the Bank regarding the withdrawal of the ATM as the customer hold his ATM card and PIN with him. It is submitted that the Ops take all the measures required to protect the money of customers as per the guidelines of the RBI. The receipt of the letter of the complainant and the reply of the same is admitted by the Ops. It is further submitted that as and when the transactions made, are un-successful and account debited, the bank is liable to compensate the customer of the loss, but where the entry is successful and account debited, the Bank cannot be made liable/responsible for the loss caused to the customer. It is alleged that the entry regarding payment of complainant from ATM was successful and record was provided to the complainant. The receipt of the legal notice and the reply of the same is admitted by the Ops. It is alleged that there is no deficiency of service on the part of the Ops. All other averments made in the complaint have also been denied and it is prayed to dismiss the complaint.
8. In order to prove his case, the complainant tendered in evidence Ex.CA his sworn affidavit alongwith the documents Exs.C1 to C-25 and his counsel closed the evidence.
9. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Sudama Prasad, Manager , IOC branch, SBOP alongwith the documents Exs.OP1 to Ex.OP2 and closed the evidence.
10. The ld. counsel for the complainant has submitted that the OPs committed deficiency of service by not crediting the amount withdrawn   through the ATMs of Vijaya Bank and Canara Bank in Trivandrum and Kovalan amounting to Rs.1,15,248/-.He also submitted that at that time, the father of the complainant was undergoing treatment in Mohali as it is evident from the medical record Ex.C-2(colly).The ld. counsel stated that as per the Code of Bank’s Commitment to Customers i.e Ex.C-17 the OPs were bound to credit the amount in the account of the complainant’s father as it was unauthorized withdrawal. The ld. counsel pleaded that the Reserve Bank of India constituted a committee                (through) a Board Memorandum, former Chairman, SEBI( Securities and Exchange Board of India) to look into the customer service aspects. The said committee submitted its report dated 03 August, 2011 to the RBI. The full report submitted by the said committee under the chairmanship of Shri M. Damodaran is available on website of the Reserve Bank of India www.rbi.org.in. The Committee has deliberated on the issues of customer liability relating to technology banking in its report in Chapter 4 under the head ‘Compensation’ at page 72 of the report, in a manual scenario in a similar transaction. For example, cheques lost by customers but passed by a bank on account of frauds, do not deprive the customer of his rights, even in cases where he fails to confirm the bank of lost cheques. Therefore, frauds involving cloned card, un-authorized online transactions, ATM transactions not done by the customer etc. cannot be valid transactions as they are not authorized by the customers. Instead of the bank putting the onus on the customer to prove that he has not done the transaction or caused it to happen, the onus should be on the bank to prove that the customer has done the transaction. The committee made the recommendation in Chapter 3 in para 03.03.01 under the head internet banking at page 72 that, there should be as secure total protection policy/zero liability against loss for any customer induced transaction utilizing technology through ATMs/Pos/online banking etc. A customer should not be made to be out of funds when any loss is suffered  on account of Net/ATM banking transactions. All the rules in respect of internet banking should be so designed as to encourage consumer to feel safe about electronic transactions. In all the above scenarios, an immediate temporary credit, pending investigation, should be so designed as to encourage consumers to feel safe about electronic transactions. In all the scenarios, an immediate temporary credit, pending investigation, should be afforded. It was also recommended by the committee in its report at Page 74 that, the banks should have dynamic scoring models with inbuilt processes and controls to trigger transactions which are not normal so that even if the identity is stolen, the fraudster should not be in a position to succeed in his attempts. Study of customer transaction behavioral patterns and stopping irregular transaction should be part of the above process. It was recommended by the said committee in its report under the head “Compensation’ at page 74 that, the international best practices regarding cash not delivered at ATMs withdrawal through cloned cards, credit card debits not authorized by customers, internet banking frauds etc., should be followed and the customer should be afforded a temporary credit immediately after taking a suitable undertaking. It was also recommended by said committee in para 77 of the head ATM/Debit/Credit Card transactions that, ATM cameras should be so placed as to take a clear picture of the person doing the ATM operations and whenever a complaint on ATM withdrawal is received, the bank should ensure to preserve the CCTV recordings till the grievance is fully redressed. The recommendations of the Damodaran Committee constituted by the Reserve Bank of India Serve as guidelines to all banks with regard to all matters concerning banking transactions to provide secured, better services to its customers and to redress to complaints of the customers”. .The ld. counsel in order to support his contentions relied on the judgment of this Forum dated 21.01.2015,in case titled as Jagat Singh Vs Canara Bank. 
11. On the other hand, the ld. counsel for the Ops No. 1 & 2 has denied the liability of the OPs with regard to the amount withdrawn through the ATMs of Vijaya Bank and Canara Bank in Trivandrum and Kovalan. The ld. counsel stated that the OPs are liable to credit the amount, if the same had been done through online transactions and that too, where the loss had been intimated within the appropriate period. He further stated that in the case, in hand the transactions took place through the ATMs of Vijaya Bank and Canara Bank in Trivandrum and Kovalan. He also stated that the said transactions can only happen by inserting the ATM card into the ATM machine and then by entering the right password. The ld. counsel pleaded that the complainant was required to get the matter investigated and if the Police authorities were not ready to help the complainant, then he was required to approach the appropriate court of law. The ld. counsel also pleaded that as per the version of complainant the ATM machine was tempered, the complainant was suppose to contact the Vijay Bank and Canara Bank to whom the said ATM machines belonged. The ld. counsel argued that in the present case the OPs cannot be held liable as the ATM’s were of two different Banks from where, the transactions took place. The ld. counsel also argued that there is a possibility that the complainant cloned the ATM card and gave ATM pin to someone else to withdraw the amount, as the both the ATMs are located in the Kerala.  The ld. counsel relied on the  case law titled as State Bank of India Vs K.K.Bhalla 2011(3)CLT 256(NC) wherein it was observed in para no.9,“We are not convinced by this reasoning of either the District Forum or the State Commission, particularly, in view of the fact that merely because the CCTV was not working on those dates and its footage was thus not available, does not mean that the money could be withdrawn fraudulently without using the ATM card and the PIN number.In case the ATM card had been stolen or the PIN number had become known to persons other than ATM card holder then the CCTV coverage could have helped in identifying the persons who had fraudulently used the card. In the instant case it is not  disputed that the  ATM card or PIN remained in the self-custody/knowledge of the Respondent. In view  of elaborate procedure evolved by the Petitioner/Bank to ensure that without the ATM Card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorized person from an ATM, we find it difficult to accept the Respondent’s  contention. No doubt there have been cases of fraudulent withdrawals as stated by the State Commission but the circumstances of those cases may not be the same as in this case and in all probability, these fraudulent withdrawals occurred either because the ATM Card or the PIN number fell in wrong hands”.
12. After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments as well as the written submissions, we are of the opinion that in the present case the point for consideration is; whether the OPs  reimburse a sum of Rs.1,15,248/- withdrawn by unauthorized manner from  ATMs belonging to Vijaya Bank and Canara Bank .   It is a admitted fact, that the amount of Rs.1,15,248/- was withdrawn from ATMs of Vijaya Bank and Canara Bank in Trivandrum and Kovalan and the complainant did not array  them as party. It is established from medical record that at the time of transactions, the father of the complainant was undergoing treatment at Chandigarh and Mohali. The complainant has also not placed on record the original or copy of the said ATM card in order to establish the said card was in the possession of the deceased father of complainant. No satisfactory reason has been pleaded by the complainant regarding any complaint or communication with the Vijaya Bank and Canara Bank. The complainant has also failed to establish whether his father had availed the SMS service for intimidation of withdrawal on the registered mobile. The judgment relied upon by the ld. counsel for the complainant relates with transactions made through internet utilizing  the details of the ATM card and the case in hand relates to withdrawal of cash from ATMs of two different Banks i.e ATMs of Vijaya Bank and Canara Bank on the same day. Thus in our opinion the said judgment is not applicable to the facts of the present case. Moreover the case law citied by the ld. counsel for the OPs is by the Hon’ble National Commission and on similar facts.
13. In our opinion the ATM machines used for unauthorized transaction was not the ATM of the OPs. The same were of two different Banks. Thus the CCTV footage would also be available with the said two Banks and the said ATMs were installed in Kerala State. It is not the case of the complainant that after intimation of the unauthorized transactions the OPs-Bank failed to reimburse the alleged amount. The Code of Bank’s Commitment to Customers, relied upon by the complainant is not applicable to the facts of the present case. Thus we find force in the submissions of the ld. counsel for the OPs and the case law  titled as; State Bank of India Vs K.K.Bhalla(Supra)
14. Accordingly in view, of our aforesaid discussion, we find that the OPs have not committed any deficiency of service. We feel that the complainant requires to lead voluminous evidence, in order to establish his case, as there are complicated questions involved. However the complainant is at liberty to approach the appropriate court, in case he feels appropriate. The present complaint is hereby dismissed being denuded. Parties to bear their own cost.     
15. The arguments on the complaint were heard on  24.5.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:31.5.2016

               Sonia Bansal           Neelam Gupta                        A.P.S.Rajput

        Member                Member                                  President