Haryana

Panchkula

CC/395/2021

TARSEM KUMAR MAHAJAN. - Complainant(s)

Versus

THE BRANCH MANAGER,STATE BANK OF INDIA. - Opp.Party(s)

IN PERSON.

23 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	395 of 2021
Date of Institution	:	24.09.2021
Date of Decision	:	23.01.2024

 

 

Tarsem  Kumar Mahajan age(63) son of Sh. Ram Lal Mahajan, resident of #702,  GH-84, Sector-20, Panchkula-134009.

 

                                                                           ….Complainant

 

Versus

1.     The Branch Manager State Bank of India, Shakti Bhawan branch, Sector-6, Panchkula(Branch Code-51244)

2.     State Bank of India, through its Chairman, SBI, State Bank Bhawan, Madam Cama Road, Mumbai-400021

                                                                                                                                                                                                ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person.   

                        Sh.Sachin Goyal, Advocate for OPs No.1 & 2.

 

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are, that the complainant, being having a saving account no.55041995261 with OP No.1, was issued a debit classic card bearing no. 5211 1200 1029 2951, wherein a maximum amount of Rs.20,000/- could be withdrawn in one day. It is averred that the complainant got SMS on 05.08.2021 on his mobile number for updating the KYC from mobile no.98366-81320 at 11:15 am and mobile no.89006 00168 at 10:37 a.m. After reading the message at about 01:00 noon, he(the complainant) clicked on the link for updating the KYC. It is stated that the mobile of the complainant got hanged up immediately after clicking of the link by him and thereafter nothing was visible on the screen of the mobile. The complainant, thereafter, switched off his mobile and again started. It is stated that, after the switching on the mobile, he found several messages were received qua OTP/ transactions, the details whereof is given as under:-

i.      OTP 650979                        Time 13:05

ii.      Transaction no.195793         Time 13:06

iii.     Transaction no.796599         Time 13:07

iv.     OTP 646180                        Time 13:09

v.     OTP 809511                        Time 13:10

 

        On checking the account online on his mobile, it was found that 3 (three) numbers of transactions had been made wherein a sum of Rs.64,999/- was unauthorizedly withdrawn from the saving account of the complainant. The details of the transactions are given as under:-

1. 05.08.2021     Rs.24,999.00 to transfer inbimps.P2A
2. 05.08.2021     Rs.20,000.00 Atm WDL ATM cash 131373 Garfa                   Main Road Kolkata
3. 05.08.2021     Rs.20,000.00 ATM WDL ATM cash 131373 Garfa                   Main Road Kolkata

 

It is averred that the complainant approached the OP No.1 bank immediately and moved an application requesting for blocking of his debit card as well as saving account and also requested to take action for recovery of the unauthorized withdrawn amount from his account. It is stated that the matter was reported to Cybercrime Police Station, Sector-5, MDC, Panchkula on 05.08.2021 itself. Thereafter, an another application was submitted with OP No.1 on 07.08.2021 qua taking action against the fraudster, who had withdrawn a sum of Rs.64,999/- from his saving account no.55041995261. It is stated that the maximum limit of withdrawal of amount on his debit card was Rs.20,000/- whereas a sum of Rs.20,000/- each was withdrawn vide two separate transactions within 2/3 minutes, which clearly proves that SBI online software system had failed. It is stated that the Ops are responsible for failure of their software system, which had caused a loss of Rs.64,999/- to the complainant. It is stated that the complainant had lodged several complaints with OPs telephonically as well as on toll free numbers but to no avail. It is stated that, on the day of withdrawal on 05.08.2021, the complainant was at his house and did not visit any bank for any withdrawal of amount and that he contacted madam Ishani Gupta, Branch Manager of OP No.1(bank) telephonically and informed her at about 2:00 P.M. about the said fraudulent transactions. At about 02:15P.M., the complainant visited the OP No.1 in person and moved an application qua unauthorized withdrawal from his mobile number by the fraudster. Due to the act and conduct, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.Upon notice, the OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections that the complainant is estopped to file the present complaint by his own act and conduct; he has not approached the Commission with clean hands as he has suppressed the true and material facts. It is submitted that an FIR was lodged in Cyber Crime Police Station, Sector-5, MDC, Panchkula against unknown persons about committing of the fraud but the complainant has not disclosed the status of the said FIR.

                On merits, it is submitted that the fraud, if any, had occurred only due to the act and conduct of the complainant and the Ops are not liable for any withdrawal of amount from the saving account of the complainant on 05.08.2021. It is submitted that the OPs don’t ask any person for updating his KYC through messages. The complainant had sent his KYC or OTP to the unknown person. It is submitted that the OPs have no role in the transactions as the OPs never ask the KYC or send any OTP for updating the KYC or updating the PAN. The OP’s bank has evolved an elaborate procedure to ensure that no amount could be withdrawn from the ATM without using the ATM card and without inserting the relevant PIN numbers. It is submitted that the ATM card as well as PIN numbers was in the personal custody and knowledge of the complainant, hence, the OPs are not liable or responsible for withdrawal of Rs.64,999/-. It is denied that online software system of the SBI had failed. The withdrawal of Rs.64,999/-, if any, from the saving account of the complainant was due to the own negligence of the complainant as neither the bank demanded any KYC through SMS for updating  the PAN nor suspended  any account for want of PAN or sent any OTP for YONO transactions. Thus, there was no deficiency in service on the part of the OPs No.1 & 2; hence, the present complaint is liable to be dismissed.  

3.To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R-A and closed the evidence.

                On 16.11.2022, the complainant has submitted his additional affidavit, which is taken on record as Mark ‘A’.

 4.We have heard the complainant and the learned counsel for the OPs No.1 & 2 and gone through the record available on file including the written arguments filed by the complainant and OPs and minutely and carefully.

5.The sole controversy between the parties, in the present complaint, relates to the allegedly unauthorized withdrawal of amount of Rs.64,999/-(Rs.24,999+20,000+20,000) on 05.08.2021, vide three separate transactions, from the saving bank account no. 55041995261 of the complainant.

6.As per version of the complainant, the aforesaid amount was unauthorizedly withdrawn from his said account on 05.08.2021 by some fraudsters/unknown person, while the debit card was in his possession and he did not share the OTP with anyone.

7.The Ops have contested the complaint mainly on the ground that the transactions leading to the withdrawal of the amount of Rs.64,999/- from account of the complainant had occurred only because of the lapses on the part of the complainant. The learned counsel for the OPs reiterating the averments as made in the written statement as well as in the affidavit(Annexure R-A) contended that the amount of Rs. 64,999/- was withdrawn vide three transactions from the account of the complainant only because of the clicking of a unknown link by the complainant, wherein the OPs has no role. It is vehemently contended that the Ops never ask its customer for updating the KYC or never send any OTP for updating the KYC or updating the PAN. It is argued that an elaborate procedure has been evolved by the OPs Bank to ensure that no amount could be withdrawn unauthorizedly by any person from the ATM without the use of ATM debit card and inserting of PIN numbers. It is argued that the incident leading to the withdrawal of sum of Rs.64,999/- had occurred due to the clicking of a unknown link by the complainant, which clearly establish the lapses and error on the part of the complainant and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

8.Pertinently, the Reserve Bank of India(hereinafter referred to as RBI), keeping in view the surge  in customer grievances relating to unauthorized transactions in the accounts of the customers, enjoying electronic banking facilities like ATM-cum-Debit Cards, net banking  etc., has issued the Circular No.RBI/2017-18/15 dated 06.07.2017, vide which, it has directed all banks, among others, to put in place, appropriate  systems and procedures to ensure safety and security of electronic banking transactions carried out by customers; robust and dynamic fraud detection and prevention mechanism; mechanism to assess the risks resulting from unauthorized transactions and measure the liabilities arising out of such events; appropriate measures to mitigate the risks and protect the banks against liabilities arising there from and a system of continually and repeatedly advising customers on how to protect themselves from electronic banking and payment related frauds. As per the aforesaid circular, if a customer suffers loss in connection with the transactions made, without his junction, by fraudsters, it has to be presumed that it is on account of the failure on the part of the bank to put in places system which prevents such withdrawals and the banks are, therefore, liable for the loss caused to their customers.

9.A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:-

i.        Contributory fraud/negligence/deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer)

ii.       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.

10.Now, adverting to the facts of the present case, it is found that the complainant immediately approached the OP No.1 bank, after the alleged unauthorised withdrawal of Rs.64,999/,- on 05.08.2021 and submitted an application(Annexure C-1) at 02:30PM on the same day informing the OP No.1 qua the alleged unauthorized withdrawal from his account. Further, the complainant has been found to have reported the matter to the cybercrime vide application (Annexure C-4) bearing acknowledgment no.21308210095387. On 07.08.2021, an another application(Annexure C-2) was submitted with OP No.1 qua the alleged incident. Thereafter, the complainant submitted an another application on 20.08.2021(Annexure C-3). The FIR No.154 dated 10.12.2021 qua the present incident is available on record as Annexure C-6. Admittedly, the debit card was in the possession of the complainant at the time of the incident.

11.On the other hand, the defence of the OP is solely based on the ground that the amount of Rs.64,999/- was withdrawn from the account of the complainant only because he had clicked an unknown link and shared  the OTP with the fraudsters. It is the further plea taken by the OPs in their defence that OPs never ask its customer for updating their KYC.

12.As per SMS/message received by the complainant on 05.08.2021, he was asked to update his PAN and KYC from two separate mobile nos. 8900600168 and 9836681320. As per said RBI instructions dated 06.07.2017, it was incumbent to ascertain the persons to whom the said mobile numbers belong. Since a sum of Rs. 20,000+20,000/- totaling Rs.40,000/- was withdrawn  by the fraudsters in cash from the ATM located at 131373 Garfa Main Road Kolkata, it was binding upon  the OPs to contact the concerned bank, which had control and supervision over the ATM, seeking the footage of the incident but no such efforts have been shown to have been made by the OPs. Further, the Ops have failed to explain as to how the fraudsters succeeded in withdrawing the cash of Rs.40,000/- vide two separate transactions by using the YONO SBI debit card, wherein the maximum limit of withdrawal was Rs.20,000/-.

13.Undoubtedly, no enquiry or investigation was conducted by the OPs by referring the matter to its fraud and dispute settlement team so as to ascertain the details and whereabouts of the fraudsters. As per above circular dated 06.07.2017 issued by the RBI, it was binding upon the Ops  to put  in place the robust and dynamic fraud detection and prevention mechanism but we have no clue whether any fraud and detection mechanism has been put in place by the Ops or not.

14.From the above stated factual possession, it is well proved that the OPs had failed to adhere to the guidelines issued by RBI vide instructions dated 06.07.2017 and thus, the OPs had been deficient while rendering services to the complainant.  

15.Moreover, the OPs in para no.8 of its written statement has averred that the complaint of the complainant qua unauthorized withdrawal of Rs.64,999/-  is under consideration with the competent authority but the status of the same has not been mentioned.

16.Resultantly, the OPs No.1 & 2, jointly and severally, are held liable to compensate the complainant on account of deficiency on their part.

17.In relief, the complainant has claimed the refund of Rs.64,999/- along with interest @12% per annum. The complainant has also claimed the amount of Rs.5,00,000/- and Rs.11,000/- on account of mental agony and harassment and litigation charges respectively.

18.As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To pay a sum of Rs.64,999/- to the complainant along with interest @ 9% per annum(simple interest) w.e.f. 05.08.2021 i.e. the date of withdrawal of the said amount from his account till its realization.
2. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

 

19.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:23.01.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                       Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President
       

               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C.C. No.395 of 2021

 

Present:             Complainant in person.   

                        Sh.Sachin Goyal, Advocate for OPs No.1 & 2.

 

 

                       Arguments heard. Now, to come upon 23.01.2024 for orders.

Dated:10.01.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                Member                                Member                    President

 

 

 

Present:             Complainant in person.   

                        Sh.Sachin Goyal, Advocate for OPs No.1 & 2.

 

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No. 1 & 2 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.23.01.2024

 

 

 

      Dr.Barhm Parkash Yadav                Dr.Sushma Garg           Satpal

              Member                        Member                    President