BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 07^TH DAY OF JUNE 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the Ops to pay Rs.1,10,000/- being the advance amount paid by the complainant with interest at 18% p.a.,
2. Direct the Ops to pay Rs.50,000/- as damages for the mental and physical sufferings.
3. Direct the Ops to pay Rs.15,000/- towards legal expenses.
4. To pass such other orders and grant such other reliefs.

2. The case set up by the complainant in brief is as under:-

It is the case of the complainant that he is the customer of the OP bank and he is a S.B. account holder bearing No.10374525371.  The complainant is a customer of OP1 for more than 20 years and he is using for depositing the amount and withdrawing the amount.  The complainant is also provided the service for ATM and the OP was collecting the service charges of ATM.

3. It is the specific grievance of the complainant, on 05.05.2019, 06.05.2019 and 07.05.2019 without the complainant knowledge some unknown person had withdrawn a total amount of Rs.1,10,000/-.  Immediately the complainant approached the OP1 and intimated and he has given complaint before the OP1.  After enquiry the OP1 had advised the complainant to lodge the complaint before Cyber Crime. As per the instruction of the Ops, the complainant had lodged the complaint on 13.05.2019 before the cyber police and the said police had registered the FIR against unknown person.
4. It is further case of the complainant that, after register the case the police had not traced the accused or not recovered the amount withdrawn from the complainant account as on the above dates. In this regard the complainant had lodged the complaint before the police and approached them on several times and requested to return the amount of Rs.1,10,000/- due to Ops negligence defective service but the Ops assured that the amount will be given back and informed him to wait for some days.  As per the assurance the complainant had waited for some time and again approached the Ops.  They had given one or the other reason to the complainant.  The complainant had also given complaint before the bank Ombudsmen but they rejected the complaint. At last the complainant had issued a notice to OP on 01.02.2022 through his counsel calling upon them to return the amount of Rs.1,10,000/- within 15 days. The OP1 had received the notice but he has neither denied nor complied or tendered the amount in cash or sent any demand draft to the complainant.  Aggrieved by the negligence and defective service of the OP the complainant had filed this complaint.
5. In response to the notice, OP1 appeared and OP2 placed exparte.  OP1 fails to file the version.
6. The complainant has filed his affidavit evidence and relies on 07 documents.  OP has not filed any evidence.
7. Heard the arguments of advocate for the complainant and OP1.  OP1 has filed written arguments. Perused the written arguments.
8. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9.     Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

10.    Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence of complainant, and written arguments of OP1 and documents filed by the complainant.

11.     It is the grievance of the compliant that he is the customer of the OP1 bank for more than 20 years having S.B.A/c No.10374525371.  He was provided with ATM service and the OP used to collect the service charges of ATM from the complainant.

12.     It is the main grievance of the complainant that on 05.05.2019 and on 06.05.2019 and 07.05.2019 some unknown person had withdrawn a total amount of Rs.1,10,000/- from the complainant account without the knowledge of the complainant.  Immediately he approached the Op1 and gave a complaint before OP1. As per the advise of the OP1 he has also lodged complaint before cyber police on 13.05.2019 and they have registered the complaint but they failed to trace the accused or to recover the amount withdrawn from the complainant’s account on the above said dates.

13.     It is the specific contention taken by the complainant that these unauthorized transaction took place due to the Ops negligence defective service.  The OP has also assured that amount will be given back and they have advised the complainant to wait for some days. But the Ops failed to return the amount. At last the complainant has issued a notice through his counsel on 01.02.2022 for return of the amount. The OP neither replied nor complied the request of the complainant.

14.     The complainant has also approached the Banking Ombudsmen and the complaint of the complainant was also rejected by the Ombudsmen.

15.     In support of his contention the complainant has relied on 07 documents. Document No.1 copy of the closure of complaint issued by RBI, Document No.2 is the copy of the complaint dated 24.06.2019, Document No.3 is the copy of the complaint dated 17.06.2019, document No.4 is the copy of FIR, Document No.5 is the legal notice and document No. 6 and 7 are the postal receipts and postal acknowledgements.

16.     The OP1 has also filed his written arguments and taken the contention that as per the RBI circular reference DBR No.Leg.BC.78/09.07.005/2017-18 dated 06.07.2017 that they are not liable to pay the amount.

17.     As per RBI policy, the complainant is not eligible for refund. Inspite of that the OP bank had refunded Rs.20,000/- to the complainant for the first unauthorized transaction dated 05.05.2019 by deducting the limited liability sum of Rs.10,000/- from the total amount of Rs.30,000/- out of goodwill. Inspite of that the complainant has preferred this frivolous complaint and they are not liable to pay the amount.

18.     In support of their contention they have produced the copy of the above referred RBI circular, which reads as follows;

As per the RBI circular reference DBR.No.Leg.BC.78/09.07.005/2017-18 dated 06.07.2017, this cause of action falls under the limited liability where it is clearly mentioned that;

b)  limited liability of a consumer

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, he customer will bear the entire loss until he reports the unauthorised transaction t the bank  Any loss occurring after the reporting of the unauthorized transaction shall be borne by the bank.

19.     We have gone through the RBI circular and also the order passed by the Banking Ombudsmen.

20.     It is clear from the order passed by the Ombudsmen that the messages for all the transactions have been generated and delivered immediately by the bank without any delay.  As per the terms of the RBI circular, the burden of proving customer liability in case of unauthorized electronic banking transactions shall lie on the bank and the bank has failed to do so.  It is further stated in the order of the banking Ombudsmen that the complainant has stated that the transaction took place using his old debit card which was submitted long back to the bank.  The complainant has failed to provide the date of submission or any written letter made with the bank while submitting the card.  The complainant has received the messages for all the transaction without any delay but failed to block his card immediately which could have avoided further loss.  The transactions dated 05.05.2019 took place at around 8.25 am and the transaction dated 06.05.2019 took place around at 9.20 am i.e., after 25 hours. The banking ombudsmen further observed that the complainant customer has to bare the loss to the tune of transactions dated 06.05.2019 and 07.05.2019 as he had made a delay in approaching the bank.  For the transactions dated 05.05.2019 the customer has approached the bank on 06^th working day (07.05.2019 being the holiday).  The banking ombudsmen had ordered the bank to reverse the amount as per para 7(ii) of circular on customer protection limiting liability of customers in authorized electronic banking transactions dated 06.07.2017. On the above reasons the complaint of the complainant was closed under clause 13A of the Banking Ombudsmen scheme 2006.

21.     It is also clear from the very documents and the RBI circular and the order passed by the Banking Ombudsmen in any transaction not done by the account holder i.e., the fraudulent transaction the account holder must approach the bank call centre within 24 hours to block the card and the complaint must be lunched within 48 hours. In this complaint the complainant has registered the complaint on 13.05.2019 and hence there is a delay by the complainant in approaching the bank. The complainant has not taken any steps to block the card immediately since 05.05.2019 till 13.05.2019 and that has resulted in successive transactions. There is no negligence or any defect on the part of the OP.  The complainant is only liable for his loss. Even though the unauthorized transactions was done by some unauthorized reasons the OP bank has refunded Rs.20,000/- to the complainant for the unauthorized transaction dated 05.05.2019 by deducting the limited liability sum of Rs.10,000/- from the total of Rs.30,000/- out of goodwill. Under these circumstances the complainant has failed to establish that the unauthorized transaction took place due to the Ops negligence, defective service.  Hence the complainant is not entitle for any relief.  Therefore we answer point No.1 and 2 in the Negative.

22.    Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No cost.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 07^TH day of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL