Orissa

Rayagada

CC/140/2018

Sri Sriram Gantayat - Complainant(s)

Versus

The Branch Manager, Axis Bank - Opp.Party(s)

Self

29 Apr 2019

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, RAYAGADA.

STATE: ODISHA.

 C.C.Case No. 140/2018                                     Date.       29   .4. 2019.

Present:

 

 DR ASWINI KUMAR MOHAPATRA ,    PRESIDENT.

MR.GADADHAR SAHU ,                         MEMBER.

MRS.PADMALAYA MISHRA,                 MEMBER.

 

Sri  Sriram Gantayat, aged 32 years,S/o Sri Rabindra Gantayat,

At –Hatipathar Road, Raniguda Farm,

P.O./P.S./Dist,-Rayagada-(Odisha)   ……………….COMPLAINANT

 

Versus

 

01.Branch Manager, Axis Bank Ltd.,Madhusudan Nagar, New Colony,PO/PS/Dist- Rayagada-765001. Odisha.

 

02. Vice President. Axis Bank Ltd.

Bhubaneswar Circle Office, Plot No. - 1, Ground Floor, Nandi Ghosh Estates,

Bapuji Nagar, Bhubaneswar, Pin No. 751009.

 

03. Managing Director, Axis Bank Ltd.

Trishul 3rd Floor Opp Samartheshwar Temple ,Law Garden Ellisbridge

Ahmedabad ,Gujrat,PIN-  380006( India)                                              …OPP PARTIES. 

 

Counsels for the Parties

For the Complainant-  Sri S.K.Satapathy, Rayagada.

For the O.Ps:-Sri  K.Ch.G.S.Kumandan,  Advocate,Rayagada.    

-

J u d g e m e n t

           The factual matrix of the case as per the complainant that the Complainant has one account in the O.P.1 branch bearing No. 408010100074078 and was issued with one debit card bearing No. 4688089000118676,   and while the ATM debit card with the Complainant himself and ATM pin not disclosed to anybody, on Dt.07.10.2018 at 4.33 AM got a message to his mobile No. 9821437720 that, his account is debited with Rs.40,000/- On seeing the message, the O.P.1 is called and the debit card blocked. The complainant reported in writing the incident on Dt.08.10.2018 at the O.P.1 Branch, and filed an FIR in the local police station on the same day i.e.

on dt.08.10.2018  which is recorded as PS Case No. 202/2018 u/s 419 of IPC r/w Sec 66 ( c) & (d) of ITA-2000, and the case is under investigation. It is submitted that though there were  Cyber Crime Investigation Cell, headed by top cops of respective region, and the bank could have resorted to their help to probe into the case, but in the instant case, the OP.s did not think it proper to concede the grievance to the cyber cell to redress the matters and for the fault of O.P. bank, the complainant suffered loss, financially and for the loss of money he is subjected to infliction of mental injury and hardships for which the O.P. bank  should make good to restore the money and prays the complaint be allowed with cost and compensation.

02.     The Complainant has filed the copy of FIR and diary note of Police station,Rayagada along with the report filed before the O.P.1.

03.     Considered.

04.     The O.P. entered their appearance to contend that, the O.P.No.2 and No. 3 has no role in the subject matter of allegation in the complaint, hence their name shall be expunged from the cause title. Further they added that, the Complainant is an educated person, and that, unless he has disclosed the PIN or Password, it would not be possible for somebody else to withdraw money from his bank account. Hence, the allegation is false, and that, the investigation by the bank is continuing.

05.     Except this evasive submissions the O.P.s neither supplied the details of their investigation or transactions or any proof contradict to the allegations in the complaint.

06.     On perusal of records it is ascertained that in the instant complaint there is prima facie merit to adjudicate the complaint under the C.P.Act, hence, the forum consigned notices to the OP.s with complaint copy seeking the version of the O.P. on the complaint with adequate evidence to redress over the dispute between the parties. But in the instant case after receipt of notice the OP.s does not substantiate to apparent their action on the whole transaction. The OP.s neither step up to the grievances of the complainant nor taken any coercive action to redress over the matters. There is a Cyber Crime Investigation Cell, headed by top cops to investigate over these matters, but the OP.s does not think it proper to concede the grievance to the cyber cell for necessary redressal. The action of OP.s shows infirmity to manage public money which makes insolvent to the innocent account holders. The intentions of OP.s is to evade hard earn amounts of the complainant. The OP.s bank being a largest institutions and a large part of economy of the country has been regulated by them, shall show leniency to their customer/account holders by way of services.

07.     In this connection we relied the decision of “Hon’ble National Commission, New Delhi, held in the case between Bhadra N. Dalal Vs Bank of India reported in (2012) CJ 177 (NC) where in the Hon’ble Commission has pointed out its important comments that, “Bank is responsible for any fraudulent withdrawal from ATM”.

.08.    Further more, there are certain guidelines from the R.B.I. to maintain security on the electronic fraud cases and also the procedure of the redressal of the customer grievances to neither of which the O.P. Bank has not complied with in the instant case. There are ram pager of A.T.M. phising cases all over the world and cloning of the A.T.M. cards by the delinquents, and possibility of such phising or cloning debit cards for such fraudulent withdrawals can not be ruled out. There is a possibility that key loggers could have used at some ATM centers to capture the card data, here banks need be ensure that there security has not failed. And where there are two different versions of a certain allegations can be made out, the one in favour of the victims is universally accepted.

09.              The Sec. 43(A) of I.T. Act -2008 says, where a body corporate possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns controls or operates, is negligent in implementing and maintain reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.

10.     Phishing is the internet age crime, born out of the technological advances in internet age. “Phishing” is a newer form of social engineering. Typically, Phishing is a form of social engineering, characterized by attempts to fraudulently acquire sensitive information, such as passwords, usernames, login IDs, ATM PINs and credit card details, by masquerading as a trustworthy person or business in an apparently official electronic communication, such as an email or an instant message. The phishing attacks will then direct the recipient to a web page (mirror webpage) so exactly designed to look as a impersonated organization’s (often bank & financial institution) own website and then they cleverly harvest the user’s personal information, often leaving the victim unaware of the attack.

11.     Against the backdrop of the above developments, RBI constituted a Committee in May 2010 under the Chairmanship of Shri M. Damodaran - Ex Chairman, SEBI to look into the banking services rendered to retail small customers and pensioners, structure and efficacy of the grievance redressal mechanism and to suggest measures for expeditious resolution of complaints. The Committee submitted its final report on July 4, 2011.The important recommendation of the committee reads as thus……

12.       Zero Liability against Loss in ATM and Online Transactions: There should be a 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 consumers to feel safe about electronic transactions. In all the above scenarios, an immediate temporary credit, pending investigation, should be afforded.

13.     The digitization of the financial sector is having unintended, but unavoidable consequences - cyber frauds and ransomware attacks. To assuage the fears of depositors, the Reserve Bank of India (RBI), in its annual report for 2017-18, highlighted the framework for containing the spread of unauthorized transactions and limiting the liability of customers.

14.     The prevailing norms categorize customers’ exposure to frauds into two categories - zero liability and fixed liability. Customers can rest assured if the fault is on the part of the bank. Even if the breach can be traced to deficiencies existing in the system, and not on banks, the customers will not have to bear a loss.

15.     According to the RBI’s liability norms, the amount of money constituting the unauthorized transaction has to be transferred to the customer’s account inside 10 working days from the date of notification. Investigations undertaken by the bank’s board are instructed to establish liability within 90 days of the breach being flagged.

16.     From the above transactions, it seems that, the OP.s despite service of notice did not cared to file their counter or any other documents on one pretext or the other and depriving the complainant to his legitimate claim which is nothing but arbitrary, highhanded and illegal, hence we found that the OP.s are in deficient in service, as defined under Sec.2 (i) (g) & (o) of the C.P.Act. Therefore the case of the complainant has been established by cogent, oral and documentary evidences. Due to inaction on the part of the OP.s the complainant seriously inflicted to mental agony & financial harassment and there by the complainant is entitled to compensation too, and in the result the complaint succeeds.

17.     The Honble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Sri Thomas Ninan vs Axis Bank Ltd on 7 August, 2017(Appeal No. A/14/755) held, xxxx we hold in the facts and circumstances of the case that the forum was not justified in not holding the Axis Bank liable to restore and refund the Salary Savings money with the bank account of the Complainant account holder and take prompt steps to recover the A/14/755 same from the culprits by lodging prompt criminal proceedings. In Criminal trial also Section 357 of the Criminal procedure Code can upon application by the aggrieved party enable any criminal Court to compensate appropriately at the conclusion of the Criminal trial apart from other remedies according to prevalent law to trace and recover the money wrongly transferred. Internet Banking is a facility made available from the Bank on payment of service charges.”

19.     It further held, “We refer Circular of Reserve Bank of India bearing DBR.No.Leg.BC.78/09.07.005/2017-18 dated 06/07/2017 regarding limiting liability of customers in unauthorised electronic banking transaction. The shift in the policy of the Reserve Bank of India fixing zero liability upon the Bank customer in case of sending funds by internet transfers through other Banks, that too without alerting the Customer by E-mails or SMS alerts must be adhered to by the nationalized and recognized Banks doing banking business in India.”

20..    In the instant case we feel there is serious deficiency in service on the part of the OP.s by not rendering proper service through investigation on the allegation to obtain the truth. The complainant is also harassed a lot incurring his hard earn money.

21.     The learned counsel apperaring for the O.P.1 argued that, there is no cause of action arising against the  O.P.No. 2 and O.P.No. 3 hence, they shall be expunged from the array of the present cause title. However, the forum holds that, as the O.P.No. 2 and No. 3 have failed to instruct their branch i.e. the O.P.1 how to handle the situation like present, hence the malfeasance and negligence can be attributed collaterally and even severally, and no warrant to expunge them from the cause title arise.

          The complaint is allowed against all the OPs  with cost.

 

 

O  R  D  E  R

i)        The opposite parties are  here by severally and collaterally directed to credit the alleged amount Rs.40,000/- (Rupees Forty Thousand) with present saving account interest in to the account of the complainant, inter alia, to pay Rs.3,000/-(Rupees Three Thousand) towards cost of    litigation to the complainant.

ii)       All the awarded amounts shall be paid to the complainant within 45 days from the date of receipt of   this order, failing which the amounts will carry 12% interest p.a. till its realization.

         

Dictated and corrected  by me.

Pronounced in the open forum on this the        29 ^th day of   April, 2019.

 

          MEMBER                     MEMBER                     PRESIDENT,

                                                                                 DCDRF,RAYAGADA