Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant Appeal being No.1286/2017 U/s. 15 of C.P.Act, 1986 is at behest of the Appellant/Complainant to impeach the Judgment/Final Order passed by the Ld. DCDRF, Kolkata, Unit-I in connection with consumer complaint No.672 of 2013 vide order No.24 dated 10-11-2017 whereby the Ld. Forum below has dismissed the case on contest without any costs and hold the view that there was no deficiency in service by the Opposite Parties and the liability of fraudulent transaction if any, is not a matter of adjudication under this C.P.Act. 

The Appellant Sri Partha De being the Complainant lodged the complaint U/s.12 of the Consumer Protection Act, 1986 before the Ld. DCDRF thereby stated that the Complainant had credit card of SBI being No.4377486954350607.  The Complainant has stated that he has availed the hassle free service from the said card from 2006 to 17-02-2013.  Unfortunately, on 18-02-2013 at 4.21 hrs. and at 5.16 hrs. suddenly confronted with two unusual transaction with amount of Rs.1,13,834.03 and Rs.1,20,871.64 respectively.  But second transaction had not been allowed due to insufficient credit limit.  The first transaction was operated from Daniel & Saneer GbR, Germany having website www.thebikeshop.de.  On receiving SMS about the said transaction Complainant informed the matter at 8.30 hrs. to the customer care and on their advice Complainant sent soft copy of the complaint and the hard copy enclosing the dispute form downloaded from the net.  The Appellant/Complainant has made FIR on 21-02-2013 at police station of Durgapur as well as Cyber Crime Cell of Kolkata Police.  On 09-03-2013 the Complainant also made an on-line complaint at CID, W.B and claimed that he cannot be held liable to pay the amount as charged by the Opposite Parties/Respondents as the incident happened due to the lapses and loopholes of the Opposite Party Bank in their monitoring system of surveillance of security.  Complainant approached before the Banking Ombudsman.  But the Ombudsman dismissed his complaint.  Finding no other alternative the Complainant has appeared before the Lower Forum for redressal of his grievances.  After considering the submissions of both parties and on perusal of materials on record Ld. Commission below was pleased to dismiss the case on contest.

Being aggrieved and dissatisfied with the above order of the Ld. District Forum below the Appellant has preferred this present Appeal on various grounds.  It has been categorically contended in the Memorandum of Appeal that the impugned order of the Ld. Forum below has made a gross mistake by dismissing the complaint petition and passed an order without proper application of mind and arrived at a wrong conclusion.  The Ld. Commission below was failed to consider that the Appellant/Complainant informed about the subject fraudulent transaction over telephone at 8.30 a.m. on 18-02-2013 and asked the customer care division to block the card for subsequent use.  He also reported about the said incident to the police station, Durgapur and lodged an FIR No.91 dated 21-02-2013.  The Appellant /Complainant made an online complaint before CID West Bengal on 09-03-2013 and on 06-04-2013 intimated the incident to Cyber Crime Cell of Kolkata Police.  On 13-03-2013 the Complainant received an e-mail from the Opposite Party Bank stating that the matter will be investigated by a dedicated resource and they would revert back to the Complainant within 45 days.  However, the Opposite Party declared the said transaction as valid as that has been performed in a secure electronic commerce environment and validated by the Appellant’s card CVV and date of birth over internet.  The Appellant/Complainant has argued that the Ld. Lower Forum below failed to consider that the Opposite Party Bank did not file any reply against the questionnaire filed by the Complainant and the Opposite Party Bank has avoided cross examination.   As such the affidavit filed by the Bank cannot be taken into consideration as evidence.  Furthermore, the Opposite Parties did not submit any internal investigation report either before the Lower forum or before this Commission.  The Opposite Parties did not investigate to get billing and shipping address of the purchaser of that fraudulent transaction which has been occurred due to latches of the Opposite Party/Bank.  The Complainant never went to any foreign country in his lifetime and used the said card in and around Durgapur and Kolkata for booking railway/air tickets, doctor fees at CMCH, Vellore.    At the time of reporting of the said fraudulent transaction was under settlement period.  After two days the amount has been finally transferred.  The Opposite Parties violated the guideline of RBI and did not seek the necessary approval for transaction.   All these incidents prove the deficiency and unfair trade practice, the Opposite Parties adopted in this disputed transaction.    The Appellant/Complainant attached RBI guideline RBI/2017-18/15 DBR.No.Leg.BC.78/09.07.005/2017-2018 regarding customer protection wherein the RBI has fixed the extent of liability of the customer in case of Credit Card Fraudulent Transaction and stated in a table 2, if the time taken to report the fraudulent transaction from the date of receiving the communication is within three days then the liability of the customer is zero.  The Appellant has filed three other decisions in support of his case.

i)2020 (2) CPR 551 (NC)

In a case between M/s. SBI Cards & Payments Service Ltd Vs. Vishal Sabharwal & Anothers.

ii) 2020 (2) CPR 555 (NC) in a case between Subhas Mehta Vs. HDFC Bank Ltd.  

iii) Revision Petition No.2667 of 2014 in a case between SBI, Hariana Vrs. Dr. Subhas Chander. 

NCDRC, Revision Petitioner No. 1883 of 2016 in between HDFC Bank Ltd and others Vrs. Hemant Narayan Debande

Having heard the Ld. Counsel for the Appellant/Complainant and on perusal of materials on record including the Final Order/Judgment passed by the Ld. Forum below vide order dated 10-11-2017 it appears to us that the main issue that is required to be considered whether it was the duty of the Bank to play any meaningful role in the matter when their own customer/Complainant had reported to them about the alleged fraudulent transaction from his own account.  The Opposite Party Bank has simply taken the plea that the transactions are valid as they have been performed in a Secure Electronic Commerce Environment and have been validated by the Complainants/Appellants card, CVV and date of birth over the internet and as such the liability for the transaction rests with the card holder.  It clearly appears from the perusal of the record that the Appellant/Complainant has informed to the O.P Bank within a few hours on the same date about the said fraudulent transaction which was not performed by him and as per the advice of the Opposite Party Bank the Appellant/Complainant has lodged complaint for the same.  No doubt this was the first occasion when the Respondent Bank came to know that their own customer has disputed that particular transaction.  Definitely by then the payment was not authorized by the Opposite Parties Bank.  We find force in the argument that by that time, the transaction was not processed on the credit card and therefore, the Opposite Party Bank should have stopped the payment.  If payment is to be authorized by the Respondent Bank even after receiving complaints from their own customer then what is the necessity of lodging complaint before the Bank?  The Bank at least should not have debited to the credit card of the Complainant/Appellant without further enquiry.   The Appellant/Complainant has stated that the particular transaction was operated from Daniel & Saneer GbR, Germany having website www.thebikeshop.de and the Complainant immediately intimated about that fraudulent transaction to the Opposite Party.  At the time of hearing the Counsel of the Appellant submits that the Appellant/Complainant is a diabetic patient and never went any foreign country and only uses the said card for booking railway/air tickets or doctor’s fees at CMCH, Vellore.  The Ld. Forum has failed to appreciate that being a common man The Appellant/Complainant has taken all reasonable steps to stop the payment for that disputed transaction.  The Appellant/Complainant informed about the disputed transaction immediately on the same date, reported the matter ADG, CID and to the Cyber Cell of Kolkata Police, contacted the German Embassy seeking detailed of the merchant from where the purchased were made.  But in spite of his several requests the Opposite Party Bank did not take any step to stop the payment of the disputed transaction.  It also appears from the careful perusal of the record that the Complainant has mentioned in the e-mail to the Opposite Party Bank dated 15-03-2013 and 06-04-2013 that his computer was hacked and the credit data was stolen.  He has reported the incident to the customer care SBI and as per their advice has locked the card. 

It also appears from the perusal of record that in an e-mail dated 14-03-2013 the Opposite Party Bank has admitted the fact and stated that “since the card is still in your possession”, we urged you to clear the outstanding balance at the earliest to avoid further late fee and financial charges on your card account” as such the question of lost/stolen of card as mentioned by the Ld. Forum below in final order cannot be accepted. 

Furthermore, in a Judgment 2020(2) CPR 551 (NC) Hon’ble NCDRC has observed that since the e-mail of the Complainant was hacked by a third party, clearly, no fraud, forgery or cheating has been committed by either of the parties”.

Moreover, the circular dated 06-07-2017 of the RBI also supports the case of the Appellant/Complainant.

Above all, it is worthy to be mentioned that once the Complainant/Appellant has made complain regarding unauthorized transaction, it is the duty of the Bank to carry out necessary investigation of the matter, rather than washing their hands off from the whole episode.  Evidently, the Bank did not file any detail investigation report of the said disputed transaction and not taken proper step to stop payment of disputed transaction which was informed to them by their own customer.   In a Revision Petition No. 2667 of 2014 the Hon’ble National Commission has observed that the previty of contract is only between the Customer/Complainant and the Bank and it is the duty of Bank to take appropriate measure for keeping the deposit of their valuable customer in safe hand.

In view of the above discussions, we have no hesitation to come to a conclusion that the Ld. Forum below has failed to appreciate that the Bank has not filed their investigation report regarding this disputed transaction and committed an error as the Opposite Party Bank did not take any reasonable measure to stop the payment of the said disputed transaction after being informed by their own customer and therefore have deficiency in service in that respect.

As a result, Appeal being No.1286 of 2017 is allowed on contest with the following directions:

The Respondent/Bank is directed not to charge Rs.1,13,834 (Rupees One lakh thirteen thousand eight hundred & thirty four) only along with other incidental charges from the Appellant /Complainant.

Respondent/Bank are further directed to pay compensation of Rs.1,00,000/- (Rupees One lakh) only for mental agony and harassment along with litigation cost of Rs.25,000/- (Rupees Twenty five thousand) only within 60 days from the date of communication of this order.

The impugned order cannot be sustained and is hereby set aside.

Let a copy of the Judgment be sent to the Ld. Commission below forthwith for information.

Interim order be vacated forthwith.

Thus, the Appeal stands disposed of.

Note Accordingly.