MR LAXMI NARAYAN PADHI, PRESIDENT… The fact of complaint in brief is that, the complainant is SB a/c holder of the OP Bank, bearing his SB a/c no.11357501715 and on dt.12.01.15 at 5.04 a.m. he withdrawn Rs.10,000/- from Axis bank ATM situated at Papadahandi. On the same day at about 5.05 p.m. he again insert his ATM card at the same ATM counter to withdraw Rs.10,000/- but instead of withdraw the amount the ATM informed him that the account has insufficient funds, as his account has a clear balance of Rs.64,905/- as on 31.12.14. The complainant informed through mobile messages from mobikwik.com about the debit of Rs.50,230/- in total but which has withdrawn fraudulently by some other person at New Delhi from his account, prior to the ATM card and password were his safe custody. That on dt.13.01.15 the complainant rushed to the B.M. SBI, Papadahandi branch but the BM was absent on that day. On 14.01.15, he again approach to the P.D.M., SBI, Nabarangpur, and delivered a complaint but no acknowledgement was given to him to that effect. On the same day he also complained about the matter to the M.D., SBI, Central Office, Mumbai and OP.no.4 but for no action. Hence on the same day he approached the IIC, PS Nabarangpur and lodged a complaint but who told that as the cause of action is arouse at Papadahandi, hence he should lodge complaint at Papadahandi PS. So he approached the IIC Papadahandi but who denied to receive the complaint as the matter comes under Nabarangpur jurisdiction. Finding no other way, he sent letters through RP/Ad to all the OP.s along with IIC Nabarangpur, IIC Papadahandi and Cyber Crime Police Station, Cuttack requesting to refund the amount of Rs.50,230/-. The OP.2 given reply and assured to redress his grievance but the other OP.s neither replied to his grievance nor initiate any fruitful action till yet. Hence there is deficiency in service on the part of OP.s, thus the complainant prayed to recredit the amount in question along with a sum of Rs.30,000/- as compensation and Rs.3,000/- for litigation cost for such negligence, mental agony and financial losses. The complainant has filed copy of list of annexure along with affidavit.
2. The counsel for OP.1 entered the case through his counter and stated that, being a ATM Card-cum debit card holder the complainant should have kept the card and password in his safe custody but in this case the complainant disclosed the ATM card and password to a wrong hand. As per complaint petition the transactions are made through internet transfer and money transfer through internet only when the credential of the ATM is shared by a ATM card holder. By this way a person sitting in a remote corner in India can fraudulently draw money from a customer having an account in a bank situated outside India. In this case the complainant had definitely said his ATM card credential to somebody for which his money laying with his savings account could be fraudulently withdrawn. On receipt of complaint on dt.04.06.15, the OP.1 advised the complainant to lodge a complaint before the Cyber crime police station, Cuttack but for no respond. Hence there is no deficiency in service by this OP.1. He also relied a ruling of Hon'ble National Commission in R.P.No.3182/2008, wherein hold that for the sharing of the credential of the ATM Card by a person if any transaction is made by a wrong doers, bank is not liable for payment of the amount withdrawn fraudulently. So he prayed to dismiss the case in limine.
3. The rest OP.s neither appeared nor they did cared to file their counter in the case. Hence the OP.2-4 are set ex parte as provisions contemplated in Sec.13 (2)(b) of the C.P.Act.1986. The counsel for complainant and OP.1 are heard the case at length and the submissions admitted.
4. From the record it reveals that, the complainant is a SB a/c holder bearing A/c no.11357501715 of SBI bank and also allotted ATM cum debit card facility. On dt.12.01.15 at 5.04 a.m. he withdrawn Rs.10,000/- from Axis bank ATM situated at Papadahandi and on the same day at about 5.05 p.m. he again wanted to withdraw money from ATM counter, but instead of withdraw the amount the ATM machine informed him that the account has insufficient funds, but he has a clear balance of Rs.64,905/- as on 31.12.14. The complainant intimated through mobile messages from mobikwik.com about the debit of Rs.50,230/- in five times but the same has withdrawn fraudulently by some other person at New Delhi from his account, despite the ATM card and password were his own safe custody. He thereafter approached the OP.s through written letters of RP/Ad also lodged complaint before the Cyber Crime Cell at Cuttack but no fruitful action happened to that effect. Hence finding no other way the complainant craves the leave of this forum under compulsions and prayed to refund the so called alleged sum of Rs.50,230/- along with cost & compensation.
5. On the other hand the counsel for OP.1 except evasive denials could prove nothing in contradiction to the complaint and evidences adduced by him.
6. On perusal of records it is ascertained that in every complaint there is prima facie merit to try the complaint under the C.P.Act, hence, the forum consigned notices to the OP.s with complaint copy seeking the version of the OP, on the complaint with adequate evidence to redress over the dispute between the parties. But in the instant case after receipt of notice the OP.s does not substantiate their action on the whole transaction. The OP.s neither step up to the grievances of the complainant nor taken any coercive action to redress over the matters. Despite installations of camera in each of the ATM counter throughout the country, the OP.s are in failed to take any footage from the concerned counters. There is a Cyber Crime Investigation Cell, headed by top cop of Police at Cuttack to investigate over these matters, but the OP.s do not think it proper to concede the grievance to the cyber cell to redress the matters. The action of OP.s appears infirmity to manage public money which makes insolvent to the innocent account holders. The intentions of OP.s is to evade hard earn amounts of the complainant.
7. "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”.
8. 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 pager 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 cannot 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 their 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.
9. 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.
10. Sec 43(A) of I.T.Act 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.
11. 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……
12. 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.
13. The OP bank has acted negligently and recklessly to avoid their responsibility to unearth the truth. All this leads this forum to believe that the bank was not so eager to look for the interest of the account holder and took dilatory practice, taking plea of unauthorized use of ATM. This sort of plea & fruitless advice is to avoid their prime consideration of safeguarding the public money & to unearth the truth of the loss sustained by their account holder.
14. All the activities of OP amounts to deficiency in service on the part of the OP.s, 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 suffers from mental agony, financial losses & harassment and there by the complainant is entitled for compensation too in the result the complaint succeeds against the OP.s.
O R D E R
i) The opposite parties are here by directed to credit the alleged amount Rs.50,230/- (Rupees fifty Thousand two hundred & thirty) with present saving account interest in to the account of the complainant, inter alia to pay Rs.10,000/-(Rupees Ten Thousand) towards compensation and Rs.2000/- (Two thousand) as cost of this litigation to the complainant.
ii) All the awarded amounts shall be paid to the complainant within 30 days of this order, failing which the amounts will carry 12% interest p.a. till its realization.
Pronounced in the open forum on this the 31st day of Dec’2015.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT, DCDRF,
NABARANGPUR.
Date of Preparation:
Date of dispatch :
Date of received by
the A/A for Ops / Complainant :
Initial of the dispatcher.
