::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

   C.C. No.49/2018.

                                                Date of filing: 07.08.2018.

                                                       Date of disposal:  30.09.2020.

P R E S E N Ts:-    

                               (1) Shri. Rajmohan Srivastava,    

                                                                        B.Sc., M.A.,LL.M.,

                                                                                President.,  

                               (2) Shri. Shankrappa (Halipurgi),

                                                                     B.A.LL.B. (Spl.)

                                                                                 Member.

                               (3) Kum. Kavita,

                                                    M.A.,LL.B.,  

                                                             Member.

COMPLAINANT/S:    Smt. Sinku Singh, w/o Amit Kumar Sing

                                   Age: 33 years, Occ: Household,

                                  R/o  T.H.85, Anand Nagar, Air Force Station,

                                  Udgir road, Bidar.                

                                                                                                                                                                                                                                       ( By Smt. Kirti  V.B., Advocate)                           

                                                          VERSUS

OPPONENT/S:         1) The  Branch Manager,

                                   State Bank of India Shivnagar Branch,

                                   Bidar.

                             2)  The Divisional Manager,

      SBI Kothan Building, Near District Court,

      Kalaburgi.

                                ( By Shri. Vilas Rao M.More, Advocate )

::   J UD G M E N T  ::

By  Shri. Rajmohan Srivastava, President.

                    This complaint  filed by the above said complainant U/s. 35  1 &2  of the C.P.Act., 2019, against the O.Ps  alleging  deficiency in service  on the part of O.Ps. 

2.       The subject of the case is as under:

 The Complainant contended in the complaint that she has S.B. account bearing no.34034199672 with Respondent no.1 Bank also owned debit card facility since 11.08.2014.  The respondent no.1 branch at Shivanagar, Bidar under the control of Respndent no.2 Bank i.e.  Divisional Manager, SBI Kothan Building, near District Court, Kalaburgi.   The complainant is permanent resident of village Dumduma, Distrct Saran of Bihar State.  On the date of complaint the husband of the complainant working in an Indian Air Force station at Bidar.  So, the complainant has opened her Bank account with the Respondent no.1 Bank.  The husband of the complainant on leave and went to his native place along with the complainant and they were at their native place from 27.05.2016 to 28.06.2016.

3.         On 21.06.2016 the complainant received four messages of bank transactions to her mobile no. 9902014814 wherein, the amount debited Rs.3,557.50, Rs.2,847.50 Rs.7,417.50 & Rs.10.447.50  in all total Rs.24,300/-.  According to the message the amount of Rs. 24,300/- transferred to the heads of Indian Railway Catering Tourism (IRCTC).  The complainant stated no any transfer done with the heads of Indian Railway Catering Tourism Corporation (IRCTC).  The complainant thereby surprised and shocked as such loss her loosing from her S.B. account in the Bank of Respondent no.1.  The complainant stated that, she was in Bihar state, when the fraudulent transactions happened and the complainant contacted on toll free number and requested to block the transaction of her account through debit card.  The complainant also stated that she has visited nearest Branch of S.B.I. at Basantpur, Bihar State and Conveyed grievances and the Manager has sent E-mail through internet and gave endorsement about the transactions being fraudulent and amount will be refunded as soon as possible.  Thereafter the complainant returned to Bidar from his native place and filed a written complaint at the Respondent no.1 Bank to make an enquiry and to refund the fraudulent transaction of amount.  But, the Respondent no.1 unfortunately refused to entertain the complaint and the complainant recorded her grievances in the complaint register maintained at Respondent no.1 Bank.  The Respondent no.1 Bank orally assured and promised to settle the  problem of the complainant.  They assured to credit the fraudulent amount transaction of the complainant’s account.  For having not settled the fraudulent amount transaction by Respondent no.1 on 19.04.2017 the complainant issued legal notices to both Respondent no.1&.2 and served upon them but, did not give counter reply to the legal notices.  When the Respondent No.1 and 2 failed to settle the account of the complainant for the alleged fraudulent transaction of the account of the complainant and presented this complaint before this commission.  In the prayer column the complainant prayed that the Respondent be directed to pay the amount of Rs. 24,000 which was wrongly debited to her account dated 21.06.2016 with interest @ 18% p.a. and also be directed to pay Rs. 25,000/- as cost and legal expenses in the interest of justice and equity.

4.       The Respondent no.1 and 2 appeared through penal Advocate and contested the complaint and submitted written statement   and denied the allegations it is contended by the respondents that the complaint filed false, baseless and with malafide intention to extract the money.  The Respondents/Bank raised the ground that this Commission has no jurisdiction to entertain the complaint because; the alleged transaction took place at SB.I branch at Basanthpur.  The respondents/Bank does not dispute the debit card of the complainant and S.B. account at Bidar branch.  It is contended that the Respondent no.1 Bank nowhere concerned what the online transaction.  The complaint of the complainant is not maintainable before this commission for lack of jurisdiction.  The respondents also denied that they have given any endorsement at Basanthpur branch to hold the transaction fraudulent for want of knowledge.  The Respondents also denied that the complainant approached the Respondents/Bank and gave written complaint to refund the alleged fraudulent transaction amount.  But, the respondents/Bank submitted that the complainant registered her complaint in the complaint register maintained at the branch and the Bank immediately verified and provided the details of the transaction.  It is denied that Respondent no.1 Bank orally promised to settle the problem and credit the amount of Rs. 24,300/- to the account of the complainant.  The respondent also submitted the complainant while seeking credit card or debit card have to avoid the conditions and so agreed the terms and conditions thereby using debit card for any unauthorised use of the card the Respondents/ Bank is not responsible.  The Respondents submitted that the complainant has not followed the rules and regulations strictly and the complainant herself responsible for such online transaction.  According to the Respondents/Bank submitted for online transaction the card holder has to key in the card particulars i.e. 16 digit card number, card validity details, name registered on the card along with CVV number and then the system will generate OTP (One time password)  and OTP details has to be used for completing the transaction.  Then the OTP generated the system will be sent to the mobile number registered with the account.  The respondents/Bank in defence submitted that the complainant is very much aware of the online transaction because it is made by the complainant herself.  Thus, the complaint is not maintainable.

5.         The Respondents/Bank submitted the written complaint to the Police authorities at Basanthpur and the matter is sub-judice.  The Police as long as do not complete the enquiry and submit the report no cause of action arose to the complainant to file the complaint against the Respondents/Bank.  Hence there is no cause of action arose  to file this complaint before this Commission and so submitted to dismiss the complaint with costs.   The Respondents/ Bank also submitted that the crave to this Commission to amed/alter or rescind the written objections or to file the rejoinder if so advised to change in the event of any change of circumstances of either of parties before this Commission.  The Respondents/Bank prayed to dismiss   with cost and compensatory cost  of Rs.10,000 for filing false and frivolous complaint before this Commission.

6.       My learned predecessor has  taken the documents in the list as Annexure on behalf of complainant Annexure P.1 to P.6 and  examined as P.W.1  and closed her side.

7.        So also my learned predecessor on behalf of the Respondents   Sri. Ashish Modi S/o Jagdish, Manager, SBI branch, Naubad, Bidar  who has filed his sworn affidavit evidence and documents also filed as taken as Annexure R. 1 to R. 4 and further the learned penal counsel  filed memo on 23.09.2020 copy of circular of RBI/2015-16-16/242, DBR.RRB.BC.No.59/ 31.01.001/2015-16.

8.       Both learned counsels of the parties have filed written arguments.

9.       Apart from Written Arguments the learned counsels appeared for complainant and Respondent also advanced arguments in the light of evidence of P.W.1 and R.W.1 and documents.

10.     We have heard from the both sides and perused the documents carefully.

11.       Considering the above said facts and circumstances of the case following points arose for our consideration.

1. Whether the complainant  proved in regard to the alleged fraudulent transaction on 21.06.2016 in receipt of messages to her mobile no.9902014814 amounting Rs. 24,300/- vide fraudulent transaction transferred to the heads of Indian Railway Catering Tourism Corporation (IRCTC ) thereupon  on registered complaint to the respondents/Bank whereby shown deficiency of service on the part of the Respondents nos. 1 and 2 and if so, entitled to claim refund of Rs.24,300/- with interest and compensation?  

2.  Whether the Respondents/Bank proved no deficiency of service  on their part against the complainant for the alleged fraudulent transaction and so also in view of OTP messages and circulars?
3.  Whether the commission has jurisdiction to maintain the complaint?
4. What orders ?

12.     Our answers to the points raised above are as follows:-

1. In the Affirmative
2. In the Negative
3. In the Affirmative.
4. As per the final order.

13.        The both points No.1 to 3 in consideration arise out of the same facts and circumstances and therefore link together and answered accordingly on the findings as therein below.

14.     After going through the contents of complaint in the light of Annexures such as legal notice marked as Annexure no.1 it served to respondent no. 1 & 2 before presenting the complaint and as such served.   Annexure no.2 about the Annual Leave History of the husband of the complainant from 27.05.2016 to 28.06.2016 totally 33 days which goes to prove that the complainant and his husband belongs to Bihar State.  The complainant also produced the list of transactions of the computer generated copy of particulars of the accounts and more importantly the alleged fraudulent transaction which took place on 21.06.2016 goes to read as:

Annexure no. 3 to 5 not disputed by the respondents Bank about the statement of account of the complainant.  The grounds of the complaint that the debit card referred to the mobile no. 9902014814 of the complainant no either used by herself or mis-used because the complainant stated in the complaint that it is immediately brought to the knowledge and attention of SBI Basanthpur Bihar state and the Manager sent E-mail through internet.  But that E-mail endorsement not produced by the complainant by any annexure.  The complainant in the sworn affidavit of her evidence as well in the averment of the complaint stated that even at branch office of Respondent no.1 gave written complaint and Respondent no.1 assured about the settlement but so for not settled.  Therefore, on the given cause of action presented this complaint before this commission.  It is the responsibility of the Respondents Bank undoubtedly under the new act also which was there in the old act as they are the provider of the services to their customers and also the bankers charge for the services given in connection with the debit card connected to S.B. account  bearing no.34034199672 in the Bank of the Respondent no.1.  About the jurisdiction which is raised but now the question of jurisdiction is not that material because where the complainant resides the complaint can be filed before the commission.   It is totally not accepted about the question of jurisdiction that this commission has no jurisdiction to entertain the complaint.  The complaint is very much maintainable before this commission.  The complainant also made clear  the Bank shall own liability in case of un-authorized electronic banking transactions and discussed about the notifications which are underlined by yellow about the notifications applicable between the customers to the Bankers.  The Respondents/Bank filed the written arguments and also advanced oral arguments in the light of the sworn affidavit of evidence of Ashish Modi s/o Jagadish and examined as R.W.1 denied all the allegations of fraudulent transaction if it is seen from the entire affidavit in evidence  the Respondents/ Bank have only given the method of using the debit card and it’s process taking place as the system will generate OPT ( One time Password ) and the OTP will be sent to the mobile number registered with the account.  It is in defense submitted not only in written arguments and taking note of Section 11(b) of the C.P. Act, 1986 and also other notifications referred to 06.07.2017 about given SMS alerts on the mobile registered with the Bank.  In the written arguments on page no. 8 the Respondent no.1 & 2 do not dispute and to produce the same on 21.06.2016 surprisingly the complainant  has received 4 messages of the Bank transactions in her mobile number.”   If it is known according to the Respondent No.1 & 2 Bankers that the transactions are referred to IRCTC dated 21.06.2016 then why not the information which is required to be collected by Respondent no.1 & 2 in regard to alleged fraudulent transaction related to IRCTC not in evidence placed on record.

  15.       It is so far the Annexures filed such Annexure no.1 is the copy of application, Annexure no.2 Copy of Online transaction,  Annexure no.3 copy of online transaction dt. 21.06.2016 reflecting in the saving Bank account of the complainant,  Annexure no.4 is attested copy of extract of chapter no.9 of fixed assets management of stationary and records and memo about the RBI circular.  Even if it is for arguments sake believed the defense of Respondent no.1 &2 but they have not come out with any authentic evidence to disbelieve the complaint of the complainant.   It is in other words the Respondents have not made any enquiry to come out with correct explanation after all how this fraudulent transaction took place.  On failure to give correct explanation with the authentic evidence then it will go to show that in regard to point no. 1 in consideration the complainant has sustained loss about the deductions made about Rs. 24,300/- to IRCTC  .  The Respondents have only disputed the contents of the complaint but it is clear that the complainant is a Saving Bank account holder at the Branch Office of Respondent no.1 and the Respondents/Bank under the given C.P. Act. of 2019 own the responsibility to give correct explanation about the fraudulent transaction.  Hence the respondents Bank failed to discharge the burden in rebuttal evidence against the complaint of the complainant.  Contrary it is the complainant proved that the complainant has not made online transactions to IRCTC.  Despite the complaint  that Respondent no.1 & 2 no satisfactory explanation or any authentic evidence given against the case of the complainant before this Commission.

16          The learned counsel for the Respondents produced circulars and about the OTP messages given to registered mobile numbers and in this case of complainant the customer is by common prudence not expected to know the Bank circulars etc.  But however in regard to O.T.P. messages to be received on registered mobile numbers also the burden  not discharged satisfactorily.  The question of sub-judice in regard to Police complaint do not restrict the jurisdiction of commission.  In this case the complainant’s husband working at Bidar Air force station and this Forum has jurisdiction.   Hence, the point No.1 consideration ordered in the Affirmative and point No.2 consideration in the negative and the point No. 3 answered in the Affirmative.

  17.                 It is therefore from the foregoing reasons in regard to point no.1 and point no.2 and point no.3 in consideration the complainant proved the case against the Respondents and ordered accordingly.

::ORDERS::

The complaint filed by the complainants U/s. 35  1 &2  of the C.P.Act., 2019, against Respondent No.1&2   allowed with costs.

Consequently the Respondent .No.1 and 2 are jointly and severally liable to pay Rs.24,300/- to the complainant along with interst at the rate of 8% p.a. from the date of the order till realisation.

Respondents no.1 and 2 are directed to pay Rs. 10,000/- as compensation to the complainant & towards mental agony  and Respondents shall pay Rs. 5,000/- towards litigation expenses incurred by the complainant.

 The Respondent no.1&2 shall comply the above said orders within sixty days from the date of this order.

Intimate the parties accordingly.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this  30^th day of  September- 2020).

Documents produced by the complainant.

1. Annexure P.1-Copy of legal notice
2. Annexure P.2- Copy of Leave History-Air Warriors:2016.
3. Annexure P.3 to 5 copy of particulars of transaction of  S.B.account
4. Annexure P.6- (2) Postal receipts.

Document produced by the Respondents.

1. Annexure R.1-Copy of application form for ATM Cards
2. Annexure R.2Copy of Online transaction.
3. Annexure R.3- Copy of the online transaction dt. 21.06.2016 reflecting tin the saving Bank account of the complainant.
4. Annexure R.4-Attested copy of the extract of charpter no.9 of fixed assets management of stationary and records.

Witness examined.

Complainant.

1. P.W.1- Smt. Sinku Singh w/o Amit Kumar Singh  (Complainant ) 

Opponents

    1 R.W.1- Ashish Modi S/o Jagdish  (Respondent No.1)