CC Filed on 05.01.2010
Disposed on 11.05.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 11th day of May 2011
PRESENT:
Sri. G.V.HEGDE, President.
Sri. T.NAGARAJA, Member.
Smt. K.G.SHANTALA, Member.
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Consumer Complaint No. 01/2010
Between:
Sri. Venkatakrishnaiah, S/o. Narayana Rao, Aged about 69 years, Manager, GovernmentBoysCollege, Kolar R/o. No. 1877, Venugopalaswamy Temple Street, Kataripalya, KolarCity, Kolar. (By Advocate Sri. Chandrappa & others ) | ….Complainant |
V/S The Manager, State Bank of Mysore, Kolar Branch, Kolar, Post Box No. 3, Gowripet, Sparks Road, Kolar – 563 101. (By Advocate Sri. V. Sreedhara Murthy) | ….Opposite Party |
ORDERS
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay a sum of Rs.10,000/- with interest and costs for the wrongful debit entry of Rs.5,000/- dated 31.12.2008 effected in his S.B. Account.
2. The material facts of complainant’s case may be stated as follows:
That the complainant is having a S.B. Account in the OP-Bank vide S.B. account No. 54033586856 and he also availed ATM facility vide ATM card No. 5046454008300000439. The complainant was withdrawing the amount from the S.B. account by using the ATM card from ATM centre. It is alleged that on or about 03.01.2009 the complainant came to know that there were debit entry in his S.B. account for Rs.5,000/- dated 31.12.2008 shown to have been drawn by using the ATM card of complainant. It is alleged that immediately he lodged a complaint to OP on 03.01.2009 to effect correction of the wrongful debit entry. The said allegation implies that the complainant himself had not drawn any amount on 31.12.2008. It is alleged that the OP acknowledged the receipt of the said complaint dated 03.01.2009, but did not reverse the wrongful debit entry. It is alleged that the OP issued letter dated 13.08.2009 in response to his complaint dated 03.01.2009, to the effect that the transaction dated 31.12.2008 was a successful transaction and the amount of Rs.5,000/- was withdrawn by using the ATM card of complainant. The complainant was dissatisfied with the said reply. Therefore the complainant filed the present complaint on 05.01.2010. At the final stage of the argument the complainant submitted that on 31.12.2008 he had infact gone to the ATM counter of OP and had drawn Rs.2,000/- by using his ATM card. But he submitted that on 31.12.2008 he had not withdrawn Rs.5,000/- from that ATM counter and the debit entry of Rs.5,000/- dated 31.12.2008 is a wrong debit entry. He also submitted that along with the letter dated 13.08.2009 the OP has returned the copy of his complaint dated 03.01.2009 making entries in red ink regarding the debit entry of Rs.2,000/- and also the debit entry of Rs.5,000/- relating to ATM transaction. The letter dated 13.08.2009 along with the particulars of entries made in red ink on the copy of application dated 03.01.2009 show that by using the ATM card of complainant a sum of Rs.2,000/- was withdrawn from ATM No.1 under transaction No. 4300 on 31.12.2008 at 14.52 hours and that by using the same ATM card transaction No. 3598 a sum of Rs.5,000/- was withdrawn in ATM No.2 on the same date and time i.e. 31.12.2008 at 14.52 hours.
3. The OP appeared and filed its version. It is not disputed that the complainant is one of the customers having S.B. account with facility of ATM card as alleged in the complaint. It is admitted that on 03.01.2009 it received the complaint tendered by complainant and in reply to that complaint OP has given letter dated 13.08.2009 stating that the transaction in question was successful. It is contended that on verification of the journal print logs relating to disputed debit entry, it was found that the said transactions had taken place on 31.12.2008 and the amount was actually drawn by using the ATM card of complainant. The OP has stated in his version that he produced the copy of relevant journal print log, but it was not actually produced. It is contended that it is the responsibility of complainant to have the safe custody of ATM card and to maintain the secrecy of PIN and that the OP would not be in any way responsible for the withdrawal done using the card and the PIN by the customer or by any one getting hold of the card and the PIN. Therefore the OP has requested to dismiss the complaint.
4. The parties filed affidavits repeating the averments made in their pleadings. The complainant has filed the complaint dated 03.01.2009 filed before OP and the reply dated 13.08.2009 issued by it. The OP has not filed relevant journal print log of the disputed entry. We heard the Learned Counsel for the parties.
5. The following points arise for our consideration:
Point No.1: Whether the OP has proved that the disputed
debit entry of Rs.5,000/- dated 31.12.2008 is
genuine entry?
Point No.2: If point No.1 is held in negative to which reliefs
the complainant is entitled to?
Point No.3: To what order?
6. After considering the records and the rival contentions our findings on the above points are as follows:
Point No.1: The Bank issues ATM card to facilitate the customer to withdraw amount from her account, with certain terms and conditions. While issuing ATM card the Bank also furnishes the PIN (Personal Identification Number) in a sealed cover, so that no other person could come to know the PIN given to a customer. If an unauthorized person gains the ATM card as well as the PIN of a particular customer such unauthorized person can access the ATM services and can withdraw the amount without the knowledge of the card holder. Therefore the usual term prescribed by the Bank while issuing the card is that the Bank bears no liability for the unauthorized use of the card and the PIN resulting in illegal withdrawal of amount and in such cases, it is the entire responsibility of the cardholder for the loss occasioned. Therefore there is a duty on the cardholder not to part with the ATM card and the PIN to any outsider to avoid any fraudulent withdrawal without her knowledge.
Usually Video Surveillance System (VSS) is provided to every ATM to detect the malicious activities carried out if any in ATM. In the present case, it is not denied that much earlier to the date of disputed transaction VSS was installed in the ATM cabin of OP.
The documents produced reveal that the admitted transaction had taken place in ATM No.1 and the disputed transaction had taken place in ATM No.2 attached to OP-Bank. Further it can be seen that Rs.2,000/- was withdrawn on 31.12.2008 at 14.52 hours under transaction No.4300 from ATM No.1 and whereas Rs.5,000/- was shown to have been withdrawn under transaction No. 3598 from ATM No.2 on the same date and time i.e. 31.12.2008 at 14.52 hours.
The close reading of the facts of the complainant’s case as made out from the records, shows that the complainant himself had gone to withdraw the amount and infact he had withdrawn the amount of Rs.2,000/- on 31.12.2008 from ATM No.1 and that he had never operated ATM No.2 on the above said date and inspite of it there was debit entry of Rs.5,000/-. Therefore according to the complainant this debit entry was either fraudulent entry or wrong entry.
The letter dated 13.08.2009 issued by OP shows that the disputed transaction is a successful transaction. Therefore it can be said that the amount representing the disputed debit entry was taken away from the counter of ATM No.2 by someone. However the crosschecking of the account generated by ATM does not help to ascertain whether the disputed transaction was the result of some fraudulent act of someone. Such fraudulent act could have been done by complainant himself or some other representative of complainant if he handed over his ATM card disclosing the PIN to such person. Even it is possible that by meddling with the ATM system, the fraudulent act can take place by an outsider other than the complainant or her representative. The complainant himself can draw the amount from ATM No.2 and may make false complaint. In that event the complainant will very well know the fraud to be committed. If he had handed over his ATM card to his representative for withdrawal of the amount such person may withdraw the amount from ATM No.1 as well as ATM No.2 and may not disclose the withdrawal of amount from ATM No.2 to complainant. In that event the complainant will not know the fraudulent act and the withdrawal of amount shown in the disputed debit entry. In these circumstances the Bank cannot be held liable. The commission of such fraud, either by complainant or by her representative can be easily detected by observing the video footage available in the ATM cabin. If the Bank has no other direct evidence to prove such fraudulent acts it becomes necessary for the Bank to go through the video footage immediately after receiving the complaint to verify whether the fraud was committed by complainant or by her representative. If it becomes possible for a third person to meddle with the ATM working system and thereby if he could withdraw the amount from an ATM counter simultaneously or soonafter withdrawal of the amount representing genuine transaction, then the ATM card holder does not come to know such fraudulent transaction and in that event the cardholder is not responsible for the wrongful withdrawal. If any third person had meddled with the ATM system in any way, that can also be verified only by seeing the video footage. Therefore if some one has committed fraud in withdrawing the amount representing the disputed debit entry from ATM No.2, that can be traced only by verifying the video footage.
If the cash is not dispensed in the ATM counter representing any debit entry, the cash must remain in the cash chest of ATM system. Such discrepancy can be identified by verifying the physical cash in the ATM and the ATM cash balance account at Branch. Any variation in the physical cash in the ATM with that of the ATM cash balance account at Branch implies that cash at ATM is not reconciled. If there is such variation and there is excess cash in the ATM than the ATM cash balance account at Branch, the fraud can also be committed by the person who meddles with physical cash in the ATM.
If video footage of the ATM counter shows that no one had entered the ATM counter at relevant time, which generated the disputed debit entry, then the only inference is that some insider of the Branch has meddled with the ATM working system and had falsified the account relating to physical cash in the ATM. If none had entered the ATM counter at the relevant time it is impossible to infer that some outsider had fraudulently withdrawn the amount from ATM counter. Therefore we think for ascertaining whether any insider had a hand in committing the fraud, verification of video footage was absolutely necessary for proper disposal of such complaint of an ATM card holder.
If any outsider meddles with the ATM system and corrupts its working system and wrongfully withdraws the amount, without the aid or connivance of complainant, such wrongful withdrawal does not relieve the liability of Bank from reimbursing the amount to ATM cardholder. The Bank is exonerated from its liability if the withdrawal of amount is due to the negligence or carelessness of complainant in properly keeping the ATM card and maintaining the secrecy of PIN. If the wrongful withdrawal of amount through ATM is not due to the fault of ATM cardholder, the Bank cannot disclaim its liability from reimbursing the said amount to ATM cardholder.
It is contended on behalf of the OP-Bank that the ATM system cannot be meddled with by any outsider and wrongful withdrawal of amount from ATM is not possible and that the amount from ATM can be withdrawn only by using the ATM card and the PIN provided to an ATM cardholder. We think such a proposition that the ATM system has a fool proof functioning and that the amount cannot be withdrawn without using ATM card and the PIN of an ATM cardholder, may not be true. It is apparent that in ATM system many times wrong entries are made in the accounts of different customers for one or other reason and in such cases by verifying and counterchecking the account generated by ATM at various levels the mistakes are rectified. If there are fraudulent withdrawals by meddling with the ATM system itself that cannot be identified by crosschecking the accounts generated by ATM. That can be verified and identified by going through the video footage alone. In the present case, the OP has not taken that step even after written/oral instructions from the beginning of the case. The Learned Counsel for the OP contented that when complainant has not specifically asked for production of the video footage relating to the disputed debit entry, the Bank has no duty or liability to produce such video footage or to review the said footage. We think that contention appears to be not correct. The OP-Bank has to establish that the withdrawal through ATM was as per the agreement between cardholder and the Bank. As already noted if some one fraudulently withdraws the amount from ATM without the negligence or connivance of complainant, the Bank is liable for such wrongful withdrawals. For that reason the Bank should voluntarily come forward to verify the video footage to ascertain the true state of affairs. We have come across an instance how easily a fraudster can meddle with the ATM system and wrongfully withdraw the amount from the account of an account holder, which is reported in Times of India dated 06.08.2010 at page 15. The said news item may be extracted to know the manner in which the fraud was being committed which is as follows:
Sticky key trick to steal from ATMs
Swindlers Often Use Nail Cutters, Screwdrivers To Withdraw Money
Kolkata: Beware if the ATM screen goes blank after you swipe your card. It could be a mischief by fraudsters to withdraw cash from your account after you leave the ATM in a huff. A bit of adhesive and a screwdriver are all that’s needed to outwit hi-tech safety gadgets.
These swindlers are part of a powerful inter-state network spread across the country. Assam Police and Kolkata Police have recently rounded up three swindlers who have mastered the tampering of ATMs. The trick applies only to ATM machines that need a customer to insert and extract the card to start operations (as opposed to ATMs where the card pops out after the transaction is complete). Many nationalized banks, including SBI and Bank of Baroda, use this system at their ATMs, most of which are unmanned.
So, what is this low-tech, highly effective modus operandi?
Fraudsters, who generally strike in pairs, enter the ATM by swiping a valid debit card at the gate, press down a key on the gate, press down a key on the keyboard and stick it with adhesive so that it does not return to its original position. This switches on the machine. They then walk out and wait for a victim to step into the trap.
When a customer enters the ATM and swipes the card, he does not realise that the machine is already on. A message flashes for him to key his PIN, which he does. But since the machine has been switched on in an improper way, the screen goes blank automatically as a security feature to stop fraudulent withdrawals.
The customer thinks it is a system fault and gives it a second try. He has no clue that the two ‘customers’ getting impatient outside are actually criminals waiting to steal his money. They start abusing him for taking too much time and force him to leave in a huff.
Exit customer, enter fraudster. They simply use a screwdriver to ‘release’ the key. The ATM restarts automatically. What it has in store is the PIN of the last customer who swiped his card. The gang simply enters the amounts and walks out with cash.
The SBI has been receiving several such complaints from its unmanned ATMs. “We were at a loss to locate the fraud because the CCTVs showed the customer swiping his card. But customers complained that they couldn’t withdraw money,” an SBI official said.
Later; banks found out that the actual transaction happened long after the customer had swiped his card and left. And, the CCTV footage always showed two or more suspicious persons enter the cubicle soon after the customer left. “What struck us is that the transaction was completed only after the group of people left the counter,” the bank official said. Banks then complained to the police.
One such complaint was lodged at Entally police station in June this year. CCTV footage came handy for investigators from the anti-bank fraud wing of Kolkata Police. One of the kingpins, Adid Khan, was caught in the act as he tried out the same stunt at an ATM in a shopping district. Police seized adhesives, screwdrivers and nail cutters from his associates - simple tools that helped them carry out a near-perfect crime. Three ATM cards, a debit card, a car ad Rs.2 lakh in cash were seized. Probe revealed the trio are part of large gang operating from Gaya in Bihar. When they confessed, police were stunned by the simplicity of the operation.
The above incident is an example how an ATM can be meddled with by an outsider. For detecting such fraud a well trained investigating staff is required. Only thorough investigation will reveal the truth. In the present case, the OP-Bank has not taken such step and it has closed the complaint just crosschecking the entries generated by ATM but without reviewing the relevant video footage. As already noted, the reconciliation or crosschecking of the accounts generated by ATM at different levels, is helpful to solve the complaints like - customers account debited but cash not dispensed, customers account debited twice but cash dispensed only once, customers account debited but part cash disbursed. However such method is not helpful if the complaint is in substance states that customer did not transact in the ATM but his account is reportedly debited. Such instances may certainly indicate fraudulent transactions and it may need detailed investigation. The OP-Bank had received number of complaints alleging the fraud in the similar way. Therefore it was the duty of the OP-Bank to take steps for detailed investigation by efficient investigating team to detect the truth.
The allegations made in the complaint and the records show that the alleged fraudulent transaction had taken place in ATM No.2 at the same time when the admitted transaction was being done in ATM No.1. Therefore one can safely assume that the complainant himself was in possession of the ATM card when he was transacting with it in ATM No.1 and therefore there was no possibility of some third person getting custody of the ATM card at the same time. We think there is no reason to disbelieve the version of complainant that he withdrew the amount from ATM No.1 and thereafter at the same time the disputed debit entry was effected purporting to be the result of transaction in ATM No.2. We cannot disbelieve the version of complainant that he never entered ATM No.2 from which disputed debit entry was generated. The verification of video footage alone could have established whether any one had actually entered ATM No.2 or not. That was not done by OP-Bank for the reasons best known to it. For the above reasons, we hold that the OP-Bank has failed to establish that the disputed debit entry was genuine entry and that the complainant or his representative had received the amount from ATM No.2. Hence Point No.1 is held in Negative.
Point No.2: It is found that debit entry of Rs.5,000/- dated 31.12.2008 is not shown to be the genuine entry. Therefore OP-Bank is liable to reimburse the said amount to complainant. We think interest at the rate of 9% p.a. may be allowed for the amount wrongfully debited in the S.B. account of complainant from the date of wrongful debit entry to the date of payment. Hence Point No.2 is held accordingly.
Point No.3: Hence we pass the following:
O R D E R
The complaint is allowed with costs of Rs.1,000/-. The OP-Bank shall pay Rs.5,000/- along with interest at the rate of 9% p.a. from the date of wrongful debit entry till the date of payment, within 6 weeks from the date of this order.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 11th day of May 2011.
MEMBER MEMBER PRESIDENT
