Orissa

Rayagada

CC/363/2016

Smt. Jasnita Sabar - Complainant(s)

Versus

The Branch Manager, SBI - Opp.Party(s)

Self

06 Oct 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.363 / 2016.                                 Date.      6  .     10  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Smt. Jasnita Sabar, W/O: Subash Sabar,  Daughter of Sri Bisina Sabar, At:Puleda village Jaltar, PS:Puttasingi,  presently residing at Puleda,   Dist:Rayagada  (Odisha)Pin No. 765 022.                                                                        …. Complainant.

Versus.

1.The   Branch  Manager, State  Bank  of India, Marathiguda Branch, Po:Gunupur, Dist:Rayagada  (Odisha),Pin No. 765 022.         

2.The Branch Manager, Indian Bank, Gunupur,                   .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P No.1:- Set  Exparte.

For the O.P. No.2:- Sri K.Ch.G.S.Kumandan, Advocate, Rayagada.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non credit  a sum of  Rs.19,835/- which was fraudulently  debited from the S.B. account No.20346273556   for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.1 neither entering in to appear before the forum nor filed their  written version inspite of more than  18 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.  Observing lapses of around 2 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.1. The action of the O.P No.1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.1 was  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

On being noticed the O.P  No.2  appeared through their learned counsel and filed written version refuting allegation made against them.  The O.P No.2    taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No.2  . Hence the O.P No.  2    prays the forum to dismiss the case against  them  to meet the ends of justice.

 

We therefore constrained to  proceed to dispose of the case, on its merit.  Heard from the complainant and the learned counsel for the O.P. No.2.   We perused the complaint petition and the document filed by the complainant.

                                                Findings.

          Undisputedly  the  complainant  is a S.B. account holder with  the O.P(bank) bearing S.B. account No.  20346273556    having provided with the facility of A.T.M (copies of the S.B. pass  book  first page  is in the file  which  is marked as Annexure-I).   The complainant  used  to deposit money  in the said account and also used to withdraw the same at the time of his need. 

          The main grievance of the complainant was that  for the period from 01.10.2016  to 17.10.2016  a sum of Rs.19,835/-   was fraudulently  with drawn from S.B. account No.  20346273556      (copies of the  fraudulently drawn  is in the file  which is marked as Annexure-2).  Inspite of repeated contact with the  O.Ps  they   have not credited the same   in the above S.B. account. Hence this C.C,case.

During the exparte  hearing the complainant examined himself and proved the  deposit of  money   in the  above S.B. account and fraudulently  withdrawn  from his S.B. account..    The complainant also filed   front page passbook  copy and copies of   fraudulently  withdrawn  details which  are  marked as Annexure-I and Annexure-2.   The complainant also argued  due to non credit   of the above money he  suffered a lot of financial trouble  and mental agony. The complainant prays the forum as the  O.Ps have   not heard any  grievance of the complainant till date   so the  O.Ps  be  directed to credit  a sum of  Rs.19,835/-  in the above S.B. account .

After carefully examining the evidence on record, we find no cogent reason  to disbelieve or discard the evidence already adduced by the complainant. The documentary evidence  tendered by the complainant clearly tends support and absolute corroboration   to  the evidence.   Further the O.Ps have not  filed any  C.C T.V. footage  of such  withdrawn,  the  details of the persons who had  withdrawn the money  fraudulently from the S.B. account of the complainant without  his knowledge.

In absence of any rebuttal materials from the side  of   O.Ps  there is no reason to disbelieve the evidence put forth  by the  complainant  before the forum  whose evidence  suffers from no infirmity. The evidence adduced by the complainant  clearly leads us to arrive at a just conclusion that there is not only deficiency  in service  but also negligence  on the part of the O.Ps  in not   crediting the amounts a sum of Rs. 19,835/-  to the complainants  S.B. account   towards fraudulently withdrawn from S.B. account in shape of ATM card    as per the  provisions laid down under section- 14 of the  C.P. Act for which the complaint  should entitled to the adequately compensated.

On careful analysis   of the evidence on record both oral and documentary, we are clearly of the opinion  that  inspite of doing the needful, the O.Ps are failed to redress the grievances of the complaint which amounts to  deficiency in service  as a result the complainant was constrained  to file this complaint before the forum claiming the relief as sought for.  In that view  of the matter the O.Ps  jointly and severally liable.

On perusal of the record  this forum found  the complainant had opened  a S.B. account  No. 20346273556     on Dt.25.8.2016  with the O.P.(bank)  and was operating  the said account having provided  with the facility of ATM.   On Dt. 01.10.2016  there was a  cash balance a sum of Rs.19,835/- in the above S.B. account. There after  the complainant had not made any  bank transaction either deposit or withdrawal   in the above S.B. account. But on different dates from 01.10.2016  to 17.10.2016 the said money was fraudulently withdrawn,  but when the claim is placed for   credit  in the S.B. account  with the bank  towards fraudulently withdrawn  as per pass book  they  are avoiding  the same and as  such  it is a deficiency of service and they have never intended to extend  such benefit to the consumers and with false representation they are continuing bank. 

           

 Admittedly the complainant is a customer of the O.P. and he is   having the facility of operating the account with A.T.M. facility and as such the  said benefit is given by the bank for valulable  consideration and to give efficient service  to the customers through out  the day any where in India. Hence the said service provided by the O.Ps is a service  as  defined   under the C.P. Act  and the complainant is a consumer of such service       This is not at all  possible and the O.P is to prove by showing   CCTV  footage or by other mode  of investigation to identify the  culprit  who  had  withdrawn  this money, but  endeavor of the O.Ps utterly failed  to prove the same.  This sort of negligence on the part of  the  O.Ps  nothing  else but clear  amounts to deficiency in service.

 

During proceeding, the forum directed the O.P. to furnish C.C. T.V. footage of relevant time when withdrawals have been taken place through ATM counter  at Gunupur  to  take  help of the complainant  to identify the person involved in the withdrawals.  The O.Ps failed to  furnish  the CCTV footage  of said  ATM counter. It is true that   for the  period  from 01.10. 2016  to 17.10.2016  a sum of Rs.19,835/- has been withdrawn fraudulent from ATM  of O.P.  and due to want of CCTV footage of relevant ATM  machine,  it was  not possible   to  identify the person involved in such  withdrawals.  For non supply of      CCTV footage  on the part of the O.Ps  amounts  deficiency  in service. We observed there was no security  in the ATM counter, some one took its advantage and tampered/manipulated the ATM card of the complainant  and falsely withdrawn the amount from the account of the complainant and now a days this  possible  many instances are experiencing by  this forum in some such type cases. This  is happened only for the fault of the O.Ps, if the O.Ps would have provided proper  security at the  ATM counter the incident would not have happened. In the present case  the O.Ps have also not produced the footage of CC TV  of the disputed transaction to substantiate their  case which is available with them.  Hence, it is believed that someone has tempered the ATM card of the  complainant  and able to withdraw Rs.19,935/- or it can also presumed that due to defect in the  ATM machine  the amount has been debited from the account of the complainant to which the O.P. bank is liable to  refund/ credit to the account of the complainant and they can not escape from their liabilities simply by saying that “the  complainant  has not been able to keep his ATM card and its secret code  properly without being misued  by some body else in drawing the amount from his account”.  The O.P. bank has  issued  ATM card for providing  better facility to their customer and to lesser their work load but they forget the side effect  by not providing  adequate security  and  C.C  camera in the counter  this type of   incidents are happening for which the customers like complainant  suffers  a lot.  Hence in view of the aforesaid  facts and circumstances of the case, we hold the action of the O.P bank  negligent & are deficient for which in view of justice as contemplated  they are bound  to credit  the amount  in to the account of the complainant.

            For better appreciation this forum  relied citation  the 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”.

.               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 page 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.

                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. Observing the exigencies of the case we allow the complaint petition filed by the complainant against the OP.s.  

                Sec 43 (A) of IT 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.

                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……

                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

                In the spate of the cases of fraudulent ATM transactions and card cloning in the proceeding years, bank ombudsman of RBI has redressed almost all the grievances with refund of the lost money to clients. “Although the bank's usual stand had been that the money cannot be withdrawn without compromising the security of card and PIN details, in view of the overwhelming circumstantial evidence suggesting that the withdrawals from ATMs were of fraudulent nature, awards were issued in all cases and banks were advised to pay the complainants the amounts fraudulently withdrawn", the Ombudsman said. (Annual report of the Banking Ombudsman scheme 2010-2011, published by R.B.I.) This should come to the aid of consumers in similar circumstances.

Ombudsman (RBI Central, Chandigarh) says that in 26 cases, the banks have already been directed to refund fully their clients, suffered from ATM frauds. In our view there is serious deficiency in service on the part of the opposite parties and the complainant sustained mental tension and financial losses for their deliberate negligence

                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.

                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.

Not responding to the grievance of a genuine consumer amounts to deficiency in service and in that line we hold that the OPs  are  liable.

            Hence to meet  the  ends  of  justice,  the following   order is  passed.

                                                           

ORDER.

In resultant the complaint petition is allowed  in  part  on exparte against the O.Ps on contest.

The  O.P No.1 (SBI)  ordered   to refund/credit Rs.19,835/- to the S.B.account No. 20346273556   of the  complainant with usual bank  interest   from the date of  respective withdrawal   till realization. The O.P No.1 (SBI)  further  directed    to pay  Rs.1,000/- towards  litigation expenses.

The O.P. No.2 (Indian Bank) is directed to refer the matter to the O.P. No.1 for early compliance.

            We therefore issued a “Cease and Desist” order against the O.Ps. directing  him to stop such a practice  forthwith and not to repeat in future.  

            However the bank is at liberty to proceed with probing into the fraudulent withdrawals with complaints filed with the Cyber Crime Investigating Agency at their own end and take proper action against the real culprits.

            The O.Ps are ordered to comply the above directions within 30 days from the date of receipt of this order. Service the copies of the order to the parties free of  cost.

Dictated and corrected by me

Pronounced on this           6th    . day of   October,, 2018.

 

MEMBER.                                MEMBER.                                                        PRESIDENT.