Date of Filing:28/01/2016
Date of Order:01/06/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed in person under Section 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging the deficiency in service and praying for orders to direct the O.P to reverse the debit transaction from S.B. Account and credit a sum of Rs.7,999/- along with interest and also pay Rs.4,000/- towards cost of the proceedings and compensation of Rs.32,000/- towards the loss of time and energy.
2. The brief facts of the complaint are that:
The complainant is the customer of the O.P bank and he is having S.B. Account bearing Account No.913010054471823 at Arekere Branch of Axis Bank i.e. O.P. Further the complainant also availed the service of ATM card for his transactions. It is stated that on 11.7.2014 complainant got a SMS message to his mobile phone and came to know that a sum of Rs.7,999/- was unauthorizedly withdrawn from his account. Hence the complainant visited the branch bank of O.P and met the Branch Manager and informed about the unauthorized withdrawal of money from his account. The complainant alleges that, he intends to lodge the complaint regarding unauthorized withdrawal money with the jurisdictional police, but the O.P bank did not responded well to provide details of bank statement regarding unauthorized withdrawals but ultimately somehow the complainant got obtained the bank statements of account and lodged the police complaint. It is further stated that, inspite of many approaches to the O.P bank and the banking ombudsman but the complainant did not get his amount of Rs. 7,999/- and the bank is not re-credited the said amount to his account. Hence this complaint.
3. Upon issuance of notice to O.P, the O.P appeared through its counsel and filed its version. In the version it is contended that the complaint is not maintainable either in law or on facts and deserves to be dismissed in limine. It is contended that bank’s role is only a facilitator and there exists no privity of contract between the complainant and to the O.P bank to reverse the debit transaction. It is submitted that, the transaction was done under the 3D secure protocol which is designed as an additional layer online credit /debit card transaction on 11.7 .2014 at 5.23 hrs. through PAY U for the purchase of mobile reload. The O.P bank upon receipt of the complaint had taken up its CCRS department for necessary investigation in the matter and after investigation it was found the transaction was carried-out successfully by using the credentials known only to the complainant. It is contended that O.P has no control over the ATM debit card and PIN number and it is four digit password necessary to operate the ATM debit card or transaction and it is known and fed by the complainant and is not given by the O.P . Hence contended that, the transaction being secure transaction cannot be done unless the person is in possession of all the confidential details i.e. ATM Card, PIN number, Debit card details known only to the card holder. It is contended that complainant might have revealed all the aforesaid details to some third parties which has resulted in the aforesaid transactions from the complainant account. It is contended that at the time of availing the ATM facility complainant is also understood the terms and conditions of the card and the complainant is liable himself if he discloses the password or PIN number to any other person. On other grounds O.P prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and both parties have filed their affidavit evidence. Also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration are:-
(A) Whether the complainant has proves
deficiency in service on the part of the O.P?
(B) Whether the complainant is entitled to
the relief prayed in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A) and (B): In the Affirmative.
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A) & (B):-
7. On perusing the pleading of the parties, it is an undisputed fact that the complainant is the customer of the O.P bank and he is having S.B. Account bearing account No.913010054471823. Further complainant also availed ATM card for his banking transaction. It is also not dispute that an amount of Rs.7,999 was withdrawn from the account of the complainant against the transaction held at Mumbai.
8. The sole allegation of the complainant is that, he has not given his card to anybody and not disclosed ATM PIN number to any other person and the money withdrawn from his account is unauthorizedly withdrawn and hence the complainant lodged the Police complaint, but the police filed the “C” report for non-tracing the miscreants. Further the complainant also given many representation to O.P bank and also to banking ombudsman but the O.P bank did not re-credited the amount of Rs.7,999/- which was wrongfully debited from the account of the complainant.
9. Per-contra O.P contended that, there is no privity of contract between the O.P and the complainant and they are only the facilitator for ATM transactions. Further contended that on receiving the complaint O.P investigation agencies investigated the matter and found that transaction is successful. Further contended that, the complainant might have revealed all the aforesaid details to some third parties which has resulted in the aforesaid transactions from the complainant account.
10. It is worth to note that, the complainant being the senior citizen he visited the branch of O.P bank and informed the branch manager immediately after knowing the unauthorized withdrawal of the amount taken place elsewhere. When the manager comes to know that it is his duty to lodge the police complaint to avoid assessing of the customer’s account maintained by the O.P bank and proper measures is to be taken. But in this case unfortunately complainant wandered many times to the O.P bank to get statement of account relating to alleged transaction but the O.P bank instead of pursuing its customer grievances and prolonged to issue bank statement and it shows what kind of service they are rendering to its customers. Furthermore, the bank has not initiated any initial steps to know the fraudulent transaction held somewhere i.e. in Mumbai. It is not the case of the O.P. Bank that the complainant had been to Mumbai on the day of alleged transaction, but they only contended that, complainant might have disclosed the PIN number any other third person. It is pertinent to note that there is no presumption that a person possessing ATM card will disclose the PIN number and card details to some other person and basic quality of any human being is that he will take all precautionary measures to safeguard financial matters including the ATM card. Hence how will the O.P bank presume itself that the complainant disclosed the ATM card PIN number to any other persons. Hence the O.P bank cannot take the shelter of privity of contract existing between the complainant and the O.P bank, but the complainant account is maintained by the O.P bank and for which complainant is also paying and by keeping minimum amount in account balance. Hence, the contention of the O.P bank cannot be accepted as there is no privity of contract between the complainant and the O.P. Further it is not the case of the O.P that the complainant had been to the Mumbai on the day of alleged transaction or handed over the ATM card to some other person, when the complainant immediately rushed to the bank on account of unauthorized withdrawal of the amount, the circumstances clearly pointing out that the ATM Card and the PIN personally lies with the complainant alone. Hence, it is not possible to withdraw the amount without ATM card. In the light of above discussion we are of the considered opinion that the O.P bank being the mighty institution and it should protect the hard earned money of its customers and not taking proper security steps against the unauthorized accessing the customer’s account by miscreants and it obviously amounts to deficiency in service on the part of the O.P Bank. Therefore, in the attendant circumstances of the case we hereby direct to the O.P Bank to pay a sum of Rs.7,999/- to the complainant by crediting to his account and also pay Rs.2,000/- towards cost of proceedings, it will meets the ends of justice. Accordingly, we answered these points in the Affirmative.
POINT (C):
11. On the basis of the findings given on the point No.(A) and (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is allowed-in-part with cost.
- The O.P i.e. Axis Bank Ltd. Represented by its Manager/Authorized Signatory is hereby directed to pay a sum of Rs.7,999/- to the complainant by crediting to his account.
- Further O.P is directed to pay Rs.2,000/- towards cost of the litigation.
- The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
5.Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 1st Day of June 2017)
MEMBER MEMBER PRESIDENT
*Rak
