DATE OF FILING: 17.10.2012

DATE OF DISPOSAL: 22.03.2017

Dr. Alaka Mishra, Member (W):

            The complainant No.1 has filed this consumer disputes through complainant No.2 under Section 12 of Consumer Protection Act, 1986 against the Opposite Parties (for short O.Ps) alleging deficiency in banking service and for redressal of his grievance before this Forum.

            2. Briefly stated the case of the complainant is that the complainant No.1 is a bona fide customer of Opposite Parties having account No. 31039157403 since long. Since the day of opening of this account the complainant transacting all his transaction through the account. At present the complainant is working as journalist in leading print news of Odisha i.e. Eastern Media Times. The complainant No.2 is being authorized by complainant No.1 on 10^th April 2011 to file the complaint. The complainant No.2 is the registered volunteer organization working for protection of rights of consumers. As per the complaint, while he was in queue at ATM centre situated at Aditya Lodge, Berhampur in the evening of Republic Day 2011 i.e. on 26.01.2011, the complainant No.1 received a message through SBI Internet Banking in his mobile that a sum of Rs.25,000/- debited from the account. The said debit done in absence of the complainant and without his implicit consent and knowledge by using a duplicate debit-cum-ATM card of O.P.No.1 to 5. The ATM-cum-Debit card and its PIN were with the complainant and also with the O.P.No.1 to 5. The complainant visited the ATM centre situated at Sanobazar but when the said ATM did not dispense the amount and the screen of the installed ATM got black. Immediately the complainant No.1 left the said centre of O.Ps. The complainant No.1 intimated in writing to the O.P.No.1 immediately after he came to know about the debit of such huge amount from his account on 27.1.2011. After receipt of a letter and transcription report from O.P.No.1 on 5^th February 2011 bearing letter No. 4 the complainant No.1 filed an FIR with the O.P.No.6 on 7^th February 2011. So far no action has been taken on the FIR filed by the complainant No.1.  The O.P.No.1 to 5 were agreed and committed to provide secured, safe and assured service to the complainant No.1 at the time of opening of the account. The Opposite Parties No.1 to 5 are aware that an ATM holder is not entitled to withdraw more than Rs.20,000/- per transaction through ATM. But in this instant case an amount of Rs.25,000/- has been withdrawn on the Republic Day of 2011 which speaks volumes against the service and conduct of the O.Ps as they failed to prevent such withdrawals through ATM.  Due to the above negligent act the complainant requested to O.P.No.1 to 5 to credit the said unauthorized debited amount with interest and also to O.P.No.6 to make proper inquiry into the matter. Due to none response from the O.P.No.1 and 5, the complainant No.1 authorized the complainant No.2 on 10^th April 2011. Moreover, the complainant No.2 noticed about the matter to the O.P.No.1 to 4 for redressal of the grievances of the complainant No.1 bearing letter No. 52-07/2011-12 dated 6.7.2011 through speed post bearing receipt No. 52-07/2011-12 dated 6.7.2011 and bearing receipts No.E04346277981N, E043462777841N & E04346277671N ON 12.8.2011 respectively. The said notices were duly acknowledged by O.P.No.1, 2 and 4. The O.P.No.1 ventilated his message on 14^th September 2011 vide letter No. Br/30/09 that “the services at our ATMs was taken up with appropriate authority” but the O.P. No.2 to 4 did not choose to reply the notice nor taken any action to credit he amount of Rs.25,000/- in the account of the complainant No.1. It is also mentioned that due to deficiencies in services, the complainant No.1 approached the Banking Ombudsman through his complaint No.2 on 21.10.2011 vide letter No. 59-10/2011-12 and the postal receipt bearing No. A R04057890601N dated 23.10.2011. The Banking Ombudsman acknowledging the grievance of the complainant No.1 booked a complaint as complainant No. 586 and directed the O.P. No.5 to settle the matter. However, the same was not availed to the complainant No.1 even after compliance of order of Banking Ombudsman by complainant No.2 within the stipulated period and the same was disposed of on 11^th April 2012 with remark that “the Banking Ombudsman is not the appropriate Forum to elaborate examination of documentary and oral evidence”. Being aggrieved on the order of the Banking Ombudsman, the complainant No.2 also tried to table the matter before the Dy. Governor of Reserve Bank of India Odisha on 16^th June 2012 bearing letter No. 40/Vedic-CCP but the same was refused by the addressee on 19.6.2012. By these acts of O.Ps the complainant No.1 suffered from agonies mentally, physically and financial since the date. For callousness of all the O.Ps the complainant No.1 suffered irreparably and as such all the O.Ps have got vicarious liability to pay the compensation. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct he O.Ps to credit the amount of Rs.25,000/- in the account of the complainant No.1 with 18% interest since the date of debit, compensation of Rs.1,00,000/- towards for agonies suffered by the complainant physically, mentally and financially and Rs.10,000/- towards litigation cost in the best interest of justice.

            3. Upon notice on 7.1.2013, the O.P.No.1 to 5 appeared through their learned counsel Shri B.K. Mohanty, Advocate and filed their written version and argument. It is stated that the O.P.No.1 is Chief Manager of the Bank and in his official is filing this written version on behalf of the all the O.Ps i.e. 1 to 5. Being the Principal Officer of the Bank, he is responsible and authorized for the day to day functioning of the Bank and hence, the O.P.No.2 to 5 have no direct role in this case and they are not necessary parties in this case. The allegations made in the complaint petition are not all rue and correct and the complainant is put to strict proof of such of those allegations, which are not specifically admitted herein. The State Bank of India is the largest public sector bank of the nation having wide ATM network throughout the country. It issued the ATM card subject to certain terms and conditions and the applicant/account holder has to enter into a contract accepting the same by signing on the application form. As per Clause - C (2) of the terms and conditions of ATM cards which reads that “please remember that an unauthorized person can access the ATM service on card holders account if he gains the card and the PIN. The card, therefore, should remain in cardholder’s possession and should not be handed over to anyone else. The card is issued on the condition that the Bank bears no liability for the unauthorized use of the card. The responsibility is fully that of the card holder”.  And as per Clause-D (2) of the terms and condition for ATM cards, which reads that, “Any financial loss arising out to unauthorized use of the card till such time the Bank records the notice of loss of card will be to the card holder’s account” and as per Clause-E(1) of the terms and condition for ATM cards, which reads that, “The Bank has the express authority to debit the designated account of the card holder for all withdrawals/transfers effected using the card as evidenced by Bank’s records which will be conclusive and binding on the card holder”.  The ATM card was issued to the complainant on his accepting the terms and conditions for ATM cards for all its customers. The customers should take adequate precaution to protect their own interest and money while operating their ATM cards with the existing facilities/systems. The daily cash withdrawal limit on the State Bank Domestic ATM-cum-Debit card has been enhanced to Rs.40,000/- with effect from 7^th July 2008. No ATM transaction is possible without simultaneous use of card and PIN number and the most confidential number which must not be disclosed or displayed to any other person. In the instant case admittedly, when the PIN number and card is with the complainant. It is not possible to operate the ATM without of his consent and knowledge. Moreover, as per records, on that date, three transactions was made in quick succession through the ATM i.e. two withdrawals of Rs.25,000/- and Rs.15,000/-  from ATM at Sana Bazar and ATM at Aditya Lodge, respectively and one for purchase at Kesaba Jewellers, Berhampur. As per records, video footage and ATM log slip; all the ATM transactions are successfully carried out. No excess money was also found in the ATM. In view of the above, these O.Ps are neither liable to credit the amount of Rs.25,000/- in the account of the complainant No.1 with 18% interest, nor responsible to pay compensation of Rs.1,00,000/- towards for agonies suffered by the complainant physically, mentally and financially and to pay cost of Rs.10,000/- towards litigation fees etc. as claimed. The O.Ps have also provided all necessary information and extended full cooperation to the complainant. Hence there is no deficiency in service. The complainant has also lodged a FIR with the police which adds criminal dimension to the case.  So the allegation made regarding deficiency in service by these opposite parties is not at all true and the same is denied in toto. The complainant has also filed a complaint vide No.586/2012 against this O.P.No.1 before the Banking Ombudsman, Bhubaneswar. On receipt of the reply and documents from this O.P.No.1, the Hon’ble Ombudsman was pleased to pass an order stating therein that, “In view of the above, the matter requires elaborate examination of documentary and oral evidence for which this office is not the appropriate Forum was disposed of at their end as per Clause 13 (C) of the Banking Ombudsman Scheme, 2006”. This case involves complex question of facts, evidence and law. Moreover, investigation regarding the criminal angel of the case is under active consideration of the police. Hence, this Hon’ble Forum has no jurisdiction to admit the case and try the same and the matter can be properly adjudicated in the Civil or Criminal Court after completion of the police investigation. Due to the above facts, this does not come within the scope and ambit of the Consumer Forum and there is no deficiency in service provided by the O.Ps. The matter requires through police investigation and punishment of the guilty and confiscation of the amount from the criminal.  The O.Ps are not liable to pay anything or responsible for the alleged misuse of the ATM card as per the terms and conditions of the contract entered at the time of issue of the ATM card. The petition is barred by limitation and the same has not been properly valued. This complaint is not maintainable due to non-joinder of police as a party and mis-joinder of parties. Hence this O.Ps prayed to dismiss the case with exemplary cost in the interest of justice. The O.P. No. 6 though duly served notice from this Forum but did not prefer to put his appearance hence declared as ex-parte on 24.6.2013.

            4. On the date of hearing we heard the case at length from both the learned counsels for the complainant as well as for the O.Ps. We have also gone through the complain petition, written argument of both parties and perused the pleadings and documents placed on the case record. We have also given thoughtful consideration to the contentions raised by the counsels for both parties respectively. We have also verified the CCTV footage of ATM transaction on 01.02.2016 in the presence of both the learned counsels for the complainant as well as for O.Ps. The learned counsels for the complainant as well as for the O.Ps bank have also filed decisions in support of their cases. The learned counsel for the complaint has relied on two citations namely Bhadra N. Dalal Vs. Bank of India reported in IV  (2011) CPJ 330 (NC) and Vidya Wanti Vs. State Bank of India & Others reported in (2015) CJ 838 (NC). Similarly, the learned counsel for the O.Ps bank has filed a decision of Hon’ble National Commission in support of his case Vide Revision Petition No.3182 of 2008 (against order dtd. 30.05.08 in Appeal No.364/2008 of the State Commission, Delhi) respectively.  

5. On perusal of the case record it reveals that the complainant No.1 is a bona fide customer of O.P. No.1 bearing account No.31039157403 and ATM Card bearing No.6220180749800059349 which is beyond any doubt or dispute. It is also a fact on record that the complainant No.1 received a mobile message while at Aditya Lodge ATM counter that a sum of Rs.25,000/- was debited from his aforesaid account for which he had also filed an FIR on 07.02.2011 at Bada Bazar Police Station and an FIR was registered bearing No.09 of 2011 under Section 420 of IPC and under Section 65 of I.T. Act which is also not disputed. It is further a fact that the complainant No.1 on 27.01.2011 informed the matter to the O.P.No.1 which was also registered in the bank branch of O.P. No.1 vide Ticket No.AT498982445 for redressal of his grievance with a request to refund the disputed amount of Rs.25,000/- to the complainant No.1. During the course of hearing we have heard the oral submissions from the learned counsels for both parties and have also perused the contentions as raised through arguments and written submissions. Prior to final hearing of the matter we have also verified the CCTV footage on 01.02.2016 in presence of learned counsels for the complainant as well as for O.Ps to know all about the unauthorized withdrawal of alleged amount from the account of complainant. On examination of the CCTV footage it was found that the complainant was present inside the ATM counter up to 19:31:19 hours. Till his presence the disputed amount of Rs.25,000/- was not withdrawn from his account but an unknown person who was standing behind the complainant was started operating the ATM machine at about 19:31:22 hours soon after the complainant left the ATM counter. The unknown person after a few seconds unauthorizedly withdrew an amount of Rs.25,000/- at 19:32:31 hours from the account of the complainant leaving an amount of Rs.17,534/- as balance in the account of the complainant as revealed on the screen of CCTV footage. It is pertinent to point out here that as per the ATM withdrawal norms /conditions, a person can’t withdraw Rs.25,000/- at a time since the withdrawal limit for once at ATM counter was fixed Rs.15,000/- by the bank authorities at point of time. In the instant case the unknown person by hacking the machine has withdrawn an amount of Rs.25,000/- which indicates the negligence of the system and put a question on technical error of the machine and viability of the ATM system.  In this case, the unknown person even in the absence of the complainant and without help of ATM card and four digit secret code i.e. PIN number has unauthorizedly withdrawn an amount of Rs.25,000/- from the account of the complainant which points out towards faulty ATM system of the O.Ps bank who are the custodian of complainant’s money. In the instant case, the O.Ps failed to convince the Forum as to how such a huge amount was unauthorizedly withdrawn from the account of the complainant though the upper limit of cash withdrawal was fixed at Rs.15,000/- per withdrawal at a time by a person.  Hence, we feel that it is certainly a matter of unauthorized hacking by an unknown person on the account of the complainant through the ATM of O.Ps bank and when an amount has been withdrawn from the account of a bona fide customer by an unknown person on account of illegal hacking through ATM, the complainant is entitled to get back it from the O.Ps since the O.Ps are the custodian of the complainant’s money.  It is also a fact that in this case, the complainant has filed an FIR in the concerned Police Station and registered a case in the said Police Station under Section 420 of IPC and 65 of IT Act.  We also know that the complainant has also made the Inspector-in-Charge of concerned Police Station as a party to this dispute and though the notice from the Forum was duly served upon but he did not prefer to appear in this case. It is also a fact not in dispute that the O.Ps Bank though aware about the fact that an unknown person has unauthorizedly withdrawn an amount of Rs.25,000/- but the O.P. bank did not take any steps to recover the same from the person through criminal proceedings since the O.Ps bank has produced no documents to prove the same. Moreover, the O.Ps Bank also did not prefer to produce the CCTV footage of Aditya Lodge ATM counter where the complainant was present after leaving the ATM counter at Sanabazar from where the alleged amount was unauthorizedly withdrawal by hacking the account of the complainant. In this case the learned counsel for the O.Ps bank has also submitted a list of documents in support of his case which includes ATM log slip (EJ log), copy of the ATM lodging/cash verification report, copy of switch centre report, certificate of Asst. General Manager regarding cash position with ATM, CD containing CCTV footage of Sanabazar ATM counter, copy of statement of account of the complainant and the copy of the ATM application form for reference of the terms and conditions etc to prove that the transaction of the complainant was successful and no excess amount with bank on that particular day.  In this regard we would like to view that from the CCTV footage it is established that the alleged amount of Rs.25,000/- was debited from the account of the complainant on account of illegal hacking of his account by an unknown/ unauthorized person in absence of the complainant. It is also established from the CCTV footage that the alleged amount was unauthorizedly withdrawn by one unknown person from the account of the complaint which is within the knowledge of the O.Ps bank hence O.Ps bank can’t escape from their liability since they are the custodian of the complainant’s money. Though the transaction was successful but the amount was not collected by the complainant but it was taken away by a third person by hacking the ATM machine. Hence, the O.Ps bank simply can’t say that it is the sheer negligence of the complainant who allowed unknown person to get into the ATM counter while the complainant was making ATM transaction rather we can say that the O.Ps bank is negligent for lack of proper security arrangement in the said ATM counter. From the CCTV footage, it is also found that during the ATM transaction by the complainant, the ATM counter was over crowed and there were no security personnel deployed to protect the ATM counter from the access of unauthorized persons. The unknown third person/ unauthorized person within one minute and nine seconds did the operation and unauthorizedly withdrew an amount of Rs.25,000/- from the account of the complainant which is due to very much lapse in security arrangement in the ATM counter. On verification of the CCTV footage, we also saw there was security lapses in the ATM counter and it was not protected by O.Ps bank by deploying necessary security personnel so it was accessible to both authorized customers as well as unauthorized persons.  From the aforesaid discussion and examination of CCTV footage it is amply clear that the O.Ps bank was negligent since there was no security arrangement made in the alleged ATM counter to stop unauthorized persons getting into the ATM counter. It is also proved that it is a case of unauthorized hacking of account of the complainant by an unknown person due to negligence of O.Ps bank.  The O.Ps bank nothing produced before this Forum and no documents placed record to prove that the hacker has done this in connivance with the complainant. Hence, we are not inclined to accept that the complainant has received the alleged amount of Rs.25,000/- as stated in the statement of account of the O.Ps bank since it is crystal clear that the unknown person has taken away the hard earned money of the complainant due to the negligence of the bank authorities since there was no adequate security arrangement made to protect the alleged ATM counter as revealed through CCTV footage.  In a sequel to the above discussion, it is evident that some unknown third person by foul means manipulated the ATM counter and unauthorizedly withdrawn an amount of Rs.25,000/- from the account of the complainant due to security lapses in the unprotected ATM counter for which the O.Ps bank is liable to make good of the same.  Our finding is fortified with the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in 2015 CJ 838 (NC) in the case of Vidya Wanti Vs. State Bank of India & Others where it was held unauthorized withdrawal from ATM constitutes deficiency in service on part of Bank.

            6. In this case the learned counsel for the O.Ps bank has filed a decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in support of his case vide Revision Petition No.3182 of 2008 (against order dated 30.05.2008 in Appeal No.364/2008 of the Hon’ble State Commission Delhi) in the case between State Bank of India Vs. K.K. Bhalla where it was held that in case when the ATM Card and PIN remained with the self custody/knowledge of the complainant, it is not possible for others to withdraw money from the account of the complainant/respondent. However, the present dispute is an established case of unethical hacking of ATM counter by an unknown person which is clearly visible from the CCTV footage and it is also within the knowledge of O.Ps bank since although O.Ps bank is aware all about it but did not take any steps to recover the amount from the culprit under criminal proceedings. The instant case is different from that of the case cited by the learned counsel for the O.Ps bank as in this case the CCTV footage of the alleged ATM counter has been produced by the O.Ps to identify the unknown person but in the case cited by the O.Ps bank there was no availability of the CCTV footage hence it was held that without ATM Card and four digit PIN no amount can be withdrawn but in this case it is proved that without Card and PIN amount can be withdrawn by hacking the technical error ATM machine which is also not uncommon now a days. We are, therefore, not inclined to accept the decision cited by the learned counsel for the O.Ps bank due to factual difference of the case hence rejected.

            Similarly, in this case the complainant No.1 has prayed to refund Rs.25,000/- to the complainant along with 18% interest and to pay a sum of Rs.1,00,000/- towards compensation and Rs.10,000/- as cost of litigation and other relief as deemed fit as per the facts and circumstance of the case. In this regard, we would like to say that the claim of compensation of Rs.1,00,000/- towards loss and 18% interest is an exaggeration claim made by the complainants without substantial proof of loss. The complainant No.1 has not filed any convincing documentary evidence to prove that he has incurred such huge loss due to said incident and not explained why he is entitled to 18% interest on the alleged amount. We are, therefore, not inclined to accept the same and the claim of compensation and interest is rejected. However, we are interested to award a modest sum of Rs.1,000/- toward cost of litigation since the complainant No.1 has hired the services of an advocate to file his case in this Forum in the meantime a long year of 5 years have elapsed. We are, therefore, partially allowed the case of the complainant against O.Ps Bank and dismissed against O.P.No.6 since the complainant has not claimed specific relief against him.

            7. In light of the aforesaid discussion, deliberation, decision and taking into account to the peculiar fact and circumstances of the case, we partially allowed the case of the complainant against the O.P.No.1 to 5 and dismissed against O.P.No.6 since the complainant has claimed no specific relief against O.P.No.6. The O.Ps bank  who are jointly are severally liable is directed to refund the unauthorized withdrawal amount of Rs.25,000/- to the savings bank account of the complainant No.1 within two months of receipt of this order and to pay a sum of Rs.1,000/- towards cost of litigation with in the said period. The case of the complainant is disposed of accordingly. There is no order as to compensation.

                  8. The order is pronounced on this day of 22^st March 2017 under the signature and seal of this Forum. The office is directed to supply copy of the order to the parties free of cost and a copy of the same be sent to the server of