DATE OF DISPOSAL:06.05.2024.

PER:  SRI SATISH KUMAR PANIGRAHI, PRESIDENT

The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps.) and for redressal of her  grievance before this Commission.

The complainant is working as a teacher in Helen Killer Red Cross School for deaf situated at Ambapua, Berhampur, Dist: Ganjam and accordingly operated the Savings Bank Account No: 30959101303 on the Stated Bank of India, Ambapua Branch O.P.No.1. While the said S.B. account is intact, the complainant received message to her mobile with regard to withdrawal of money from the aforesaid account on 15.08.2017 but being busy could not verify the contents of the messages. On 15.08.2017 at about 10.02 A.M. the complainant got unknown phone calls to mobile phone by one male person stating himself an bank employee making query about the account number, adhar number etc. which was not attended. Similarly on the same day there were 28 phone calls from the same telephone number making query regarding ATM number, Adhar Number of State Bank of India treating himself as an employee of the said bank but it was never attended and no reply was given. On 16.08.2017, the complainant found the messages and could know that an amount of Rs.34,496/- has been withdrawn on 15.08.2017 as per details furnished here under:

Dt.15.08.2017     SBI PG                                   Rs.9,999.00

Dt.15.08.2017     SBI PG                                   Rs.7,999.00

Dt.15.08.2017     OTHPG AIRTEL Money      Rs.4,999.00

 Dt.15.08.2017    OTHPG AIRTEL Money      Rs.3,999.00

Dt.15.08.2017     SBI PG                                   Rs.7,000.00

Dt.15.08.2017     SBI PG                                   Rs.    500.00

Thereafter, the complainant immediately rushed to the O.P.No.1 on 17.08.2017 and submitted the complaint duly acknowledged. The complainant also met to the O.P.No.2 and submitted the details who in turn endorsed details of withdrawals from the accounts. The complainant filed F.I.R. before the Police Station, Gopalpur-on-sea on 01.09.2017 requesting for early investigation. Though the complainant filed the complaint before the O.P.No.1 and requested to O.P.No.2 for refund of money amounting to Rs.34,496/- no action has been initiated. The complainant is a “Consumer” and Opposite Parties render “service” in terms of the provisions of the C.P.Act, 1986. All that has been taken regarding withdrawal of money from the account of the complainant is due to carelessness service on part of the opposites parties and the O.Ps are the part of the episode as afore stated and for deficiencies of services of the O.Ps the complainant suffered from harassment causing mental agony since the money transferred without knowledge of the complainant is hard earned money as a teacher as it is because a salary account. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to credit Rs.34,496/- alongwith interest in the SB Account No: 30959101303, compensation of Rs.15,000/- and litigation cost of Rs.5000/- in the best interest of justice.

            3. The O.P.No.1 filed written version through his advocate. It is stated that this O.P.No.1 is the Branch Manager of the Bank and in his official capacity is representing the O.P.No.2 and filing this written version on behalf of both the O.Ps. As the complainant is having his account with O.P.No.1 and the subject matter of this case is not within the scope and purview of O.P.No.2 and have no direct role/business with this dispute and this case is not maintainable against the O.P.No.2 due to mis-joinder of parties. The allegations made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations, which are not specifically admitted herein. The complainant is having a saving bank account with ATM card facilities, being operated through this O.P.No.1. On 15.08.2017 through a series of transactions amounts were withdrawn from here account at various point of sales for purchasing by using internet banking facilities. For transaction through internet banking physical use of pin and card is not required. For each transaction through internet banking a onetime password is generated and transmitted to the registered mobile number. Thereafter, by using the said password alongwith card number transactions are successfully carried out. In the instants case the complainant/account holder has disclosed her card number and one time password repeatedly which facilitated/resulted in successful operation of the account by debiting the amount from her account.  Thereafter, as admitted by the complainant on 17.08.2017, the account was blocked. The State Bank of India is the largest public sector bank of the nation having wide ATM network throughout the country. It issues the ATM card subject to certain terms and conditions and the applicant/account holder has to enter into a contract accepting the same by signing on the application form. The ATM card was issued to the complainant on her accepting the terms and conditions for ATM cards for all its customers. The customers should take adequate precaution to protect their own interest and money while operating their ATM cards with the existing facilities/systems. In view of the above, this O.P. is neither liable to return the amount withdrawn from the account of the complainant, nor responsible to pay compensation of Rs.15,000/-, litigation expenses Rs.5000/- and interests thereon for financial loss, mental agony and physical harassment and cost etc. as claimed. The O.P. has also provided all necessary information and extended full cooperation to the complainant. Hence, there is no deficiency in service. The complainant by suppressing the fact relating intimation of OTP to the unknown person, has filed this complaint petition and all the allegation made in rests of the paras, are false, fabricated and based upon a concocted story for filing this complaint petition and it is nothing but distortion of facts aimed at diverting the attention of this Forum and gain sympathy by covering the own latches and lacuna of the complainant. This case involves complex question of facts, evidence and law. As an FIR filed by the complainant is under investigation before the Police station, Gopoalpur. Hence this Hon’ble Forum has no jurisdiction to admit the case and try the same and the matter can be properly adjudicated in the civil and criminal court. The State Bank Of India is not liable to pay anything or responsible for the alleged misuse of the ATM card and internet banking, as per the terms and conditions of the contract entered as the time of issue of the ATM card and internet facility. Hence the O.Ps prayed to dismiss the case with exemplary cost.

            4. On the date of hearing the advocate for the complainant and O.P.No.1 are present. The Commission heard argument from both sides at length and perused the complaint petition, written version, written argument and documents available in the case record.

            On evaluation of available documents in the lis i.e., bank statement and Annexure 4, the opposite parties admitted that transactions carried out at point of sales which are situated at Mumbai.

      It is apparent from the record that, on the material date, the complainant was serving at School at Berhampur by participating in observation of Independence Day. The transactions as per Annexue – 4 are carried out by unauthorized person who has permission to use SBIPG technology through internet banking. The said transactions are disclosed that the transactions were made between two Business Person/Merchants of Mumbai. In accordance to “2. Information Technology – D. Channels and Operations [source of information:- bank.sbi/corporate/AR2021/assets/PDF/English/11-4.2-Information 20% Technology.pdf]:- (1) Payment Aggregator and Payment Gateway (e-pay & PG) – your bank works both as Payment Aggregator and Payment gateway which is a unique PCIDSS certified secured platform for facilitating seamless e-commerce transactions between businesses, merchants, and financial institutions for various kinds of payment modes. The platform is provided through payment aggregator (SBI e-pay) and payment Gateway (SBIPG). In the instant case, the stranger has used SBIPG for four transactions as per Annexure – 4. From the above report of SBI, the customer who have debit card holder cannot use such payment gateway (SBIPG) generally. And the complainant in the present case is not a Merchant but a salaried. And as per Annexure – 4, said unauthorized person has used the SBIPG for purchase of product through POS through internet banking of the opposite party. Similarly the unauthorized person has used the ‘OTHPG’ of SBI for certain transactions on the same day through internet banking. Hence the transactions were successful. The op-bank admitted in its written version that as per ATM card terms and conditions – in absence of PIN and ATM card the unauthorized person cannot access the ATM services. To debit the designated account, it needs to access the ATM services, by withdrawals/transfer effected when ATM card using physically and enter the PIN. In the present case when transactions were taken place, the complainant was in school participating in observation of Independence Day of India. But the op bank did not file any corroborative document regarding use of ATM card in the case. The complainant for further safety of its money in the bank reported the matter to the Police Station at Gopalpur-on-Sea, Dist: Ganjam which was registered as PS Case No.;0078/Dated:01.09.2017 of Gopalpur PS and informed to the OP bank. The complainant has deposited the amount with OP-bank for her future savings and secured the money and for the purpose, the op is charging annual maintenance charges from the complainant. But in the instant case, the op bank failed to provide safety and security to the savings bank account of the complainant in any manner and means. Hence it is the basic duty of the op – bank is to make the good of loss sustained by the complainant since 15^th August 2017. It speaks that, the unauthorised person have taken advantages of weak software systems used by the op bank but in other side, the bank charging Annually maintenance charges from the complainant. For such successful transactions, the bank did not taken any steps regarding how the unauthorised person withdrawal the amount unauthorisedly from the high security custody of the OPs. The money deposited with OPs by the complainant for safety purpose as well as easy carry and transfer but the OPs failed to substantiate their role in the case regarding safety of the money. The law is well settled in catena of cases wherein Hon’ble SC held that, the money were given to bank for safety purpose but in the event of unauthorized withdrawal, the bank is liable to make it good again. The RBI also have issued guidelines on limiting liability of unauthorized electronic banking transaction vide RBI /2017-18 /15 DBR.NO.LEG.BC.78 /09.07.005 /2017-18, July 6, 2017 in reference to RBI Circular DBOD.LEG.BC.86 /09.07.007 /2001-02 dated April 8, 2002 regarding reversal of erroneous debits arising from fraudulent or other transactions. The SBI-Ops have also approved and following the said circular (supra) of the RBI for limiting liability of unauthorized electronic banking transactions in the following events –

1. It covers face to face/ proximity payment transactions (transactions which require the physical payment instrument such as a card or mobile phone to be present at the point of transaction e.g., ATM, POS, etc.).
2. Zero liability of a customer – a customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:

1. XXX…XXX…XXX.
2. 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.

3. Reversal timeline for zero liability/limited liability of customer –

On being notified by the customer, the bank shall credit (shadow reversal) the amount involved in the unauthorized electronic transaction to the customer’s account within 10 working days from the date of such notification by the customer. Banks may also at their discretion decide to waive off any customer liability in case of unauthorized electronic banking transactions even in cases of customer negligence. The credit shall be value dated to be as of the date of the unauthorized transaction.

4. Bank shall ensure that –

1. A complaint is resolved and liability of the customer, if any, established within such time, as may be, specified in the bank’s board approved policy, but not exceeding 90 days from the date of receipt of the complainant and the customer is compensated as zero liability of a customer, limited liability of a consumer, overall liability and reversal timeline.
2. Where it is unable to resolve the complainant on determine the customer liability, if any, within 90 days, the compensation as prescribed is paid to the customer; and
3. In case of debit card of bank account, the customer does not suffer loss of interest and in case of credit card, the customer does not bear any additional burden of interest.

5. Burden of Proof – the burden of proving customer liability in case of unauthorized electronic banking transactions shall lie on the bank.

Hence in accordance to the above circulars, the op bank is failed to prove the case and liable to reverse the amount which was debited from the SB account of the Complainant with interest from the date of debit of amount.

In the instant case, the complainant has informed about the unauthorized transactions carried out in her SB Salary Account on 17.08.2017 as per Annexue – 3 i.e., within three days from the material date of unauthorized withdrawals and which was acknowledged by the opposite party bank. In such event the op bank as per above guideline, should credit shadow reversal the amount involved in the unauthorized electronic transaction to the customer’s account within ten (10) working days from the date of such notification by the complainant/customer. In the instant case, the op bank has not taken any such steps as mentioned in the guidelines. It terms as deficiency in services. Further the bank as per above guidelines, may also at their discretion decide to waive off any customer liability in case of unauthorized electronic banking transactions even in case of customer negligence. But in the present case, there was no such negligence as attributed in the guidelines on the part of the customer/complainant. If the bank is unable to resolve the complaint determine the customer liability, if any, within 90 days, the compensation as prescribed is paid to the customer. When op bank failed to resolve the issue within 90 days, but in the constraint the complainant filed the present complaint and the op bank is liable to pay adequate compensation to the complainant.

In accordance to the above own guidelines, the burden of providing customer liability in case of unauthorized electronic banking transactions shall lie on the bank. Hence the op bank is liable to reverse the debited amount with interest to the complainant.

In view of the principles of law laid down by the Kerala High Court in Tony Enterprises v. Rabi vide WP (C) 28823/2017 reported in Indiakanoon.org/doc/73091604 and Cherian Karippaparampil v. RBI on unauthorized transactions and debit of amount from the bank account of a customer. And the Commission relied upon the citations of Hon’ble NCDRC held in Vidyawanti v. SBI vide RP No.:4868 of 2012; and Hon’ble Kerala High Court held in SBI v. P.V.Geroge, 2019 SCC online Ker 447; and Hon’ble NCDRC held in PNB v. Leader Valves II, 2020 CPJ 92 (NC); and Hon’ble NCDRC held in HDFC v. Jesna Jose, RP No.:3333 of 2013; and The RBI Circular no. – RBI DBR.No.Leg.BC.78/09.07.005/2017-18 dated 06.07.2017allowed the complaint.

The commission considering the above context and principle of laws, the complaint allowed  partly on contest against the op no.1 and dismissed against op no.2. The op no.1 is directed to reverse the amount a sum of Rs.34496/- along with compensation @ Rs.100/- per day from the date of debit 15.08.2017 together with Rs.5000/- towards litigation cost within 45 days from the date of receipt of the order. In the event of non-compliance of the above order by the opposite party no.1, the entire dues shall carry interest @ 12%p.a from the date of filling of the case i.e., Dated:09.10.2017 till the actual date of realization is made by the opposite party no.1. And the complainant is at liberty to realize the entire dues with interest as above from the opposite parties in accordance to the Consumer Protection Act, 2019.

This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 06.05.2024