Chandigarh

DF-I

CC/45/2021

Suraj Prakash - Complainant(s)

Versus

The Senior Manager, Punjab National Bank - Opp.Party(s)

In Person

28 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

         

Consumer Complaint No.	:	CC/45/2021
Date of Institution	:	19/01/2021
Date of Decision	:	28/09/2022

 

Suraj Prakash son of Sh. Ramesh Chander r/o House No.180/2, Sector 41-A, Chandigarh.

… Complainant

V E R S U S

1. The Senior Manager, Punjab National Bank, Sector 17-B, Chandigarh.
2. The Regional Manager, Punjab National Bank, Plot No.4, Sector 10, Dwarka, New Delhi.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. J.S. Thakur, Counsel for complainant
	:	Sh. Ajay Sapehia, Counsel for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh. Suraj Prakash, complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that OP-1 is branch office of OP-2 and OP-1 is managing the affairs of OP-2 under its guidance and is dealing with public at large.  Hence, both the OPs are jointly and severally liable for day to day affairs of the OP/bank. The complainant had opened a saving bank account No.0087000111229654 with OP-1 and had also obtained facility of ATM card.  On 11.9.2019, some person had made a call to the complainant and told him that he was calling from the bank and that ATM card of the complainant is going to expire and asked him to give ATM card No. and in good faith he disclosed the same to the said person.  Immediately after that, the said person had withdrawn an amount of ₹95,496/- in 9 different transactions on the said date. Subsequently, complainant approached OP-1 with a written request upon which the ATM card was blocked by the OP. The complainant had also made written complaint to the SSP office.  Since neither the bank officials nor the police authority had taken any action in the said matter, therefore, on 12.9.2019 the complainant made a complaint to the RBI to take action against the said person. The RBI officials called the officials of the OPs and after discussion assured that the withdrawn amount shall be returned to the complainant by OP-1.  However, as OP-1 did not take any action on the said instructions, complainant had issued a legal notice, but, with no result. OPs were requested several times to admit the complaint, but, with no result. In this manner the act of the OPs amounts to deficiency in service and unfair trade practice.  Hence the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written reply, inter alia, taking preliminary objections of maintainability, concealment, cause of action, suppression of facts and jurisdiction.  On merits, denied there is any deficiency in service or unfair trade practice on their part.  In fact, the complainant himself had given details of his password, pin, OTP etc. to the fraudulent caller, despite of the fact that there is wide circulation by way of public notice by banks and RBI that consumers may remember that banks never ask for such details. The amount was deducted from the complainant’s account due to his own negligence. The ATM card was blocked by the OPs immediately when the complainant intimated the OP/bank and no transaction had taken place after that.  The factum of sharing account details, ATM card No., OTP etc. has also been admitted by the complainant in the application by him to the OPs.  The OPs had never assured the complainant that the aforesaid amount will be returned by them. Cause of action set up by the complainant in the consumer complaint is denied. The consumer complaint is sought to be contested.
3. In rejoinder, complainant has re-asserted his claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments. For the reasons to be recorded hereinafter, following points are formulated for discussion and proper adjudication :-

1. Whether there is deficiency in service or unfair trade practice on the part of OPs?
2. Whether the complainant is entitled for claim as prayed for?
3. Whether the consumer complaint of the complainant is not maintainable?
4. Relief.

 

Point No.1 & 2

4. Both these points are interconnected, hence are taken together to avoid repetition of facts and evidence.
5. Admittedly, the complainant is account holder of the OP/bank as is also evident from copy of the passbook (Annexure C-1).  It is further an admitted case of the parties that on 11.9.2019, through 9 different transactions, an amount of ₹95,496/- was debited from the account of the complainant, as is also evident from the copy of passbook (Annexure C-1/Pg.12).  It is further an admitted case of the parties that on the relevant date i.e. 11.9.2019, the said amount was deducted from the account of the complainant only when the complainant attended a telephonic call and on the request of the caller he had shared the ATM card details, pin and OTP received on his mobile. It is further an admitted case of the parties that when the complainant came to know about the said deductions of the amount from his account, he immediately rushed to the OP/bank and requested to block the ATM card and accordingly on his request the ATM card was blocked. It is further an admitted case of the parties that thereafter the complainant made separate complaints (Annexure C-2 to C-6) to the Chandigarh Police, RBI, OP/Bank and Public Information Officer of OP/Bank. The case of the complainant is that as the aforesaid amount was wrongly debited from his account due to deficiency in service and unfair trade practice on the part of the OPs, as it was their primary duty to protect the amount having been deposited by him with them, and as the said amount has not been refunded to the complainant, he is entitled for the amounts as prayed for.  On the other hand, defence of the OPs is that since it is an admitted case of the complainant that the aforesaid amount was deducted from his account only when he had shared with the caller, details of his ATM card, pin and OTP, the consumer complaint being false and frivolous be dismissed with costs.
6. In the backdrop of the foregoing admitted and disputed facts on record, it is to be determined if there is deficiency in service and unfair trade practice on the part of the OPs as a result of which the aforesaid amount was debited from the account of the complainant, as is the case of the complainant, or if due to negligence on the part of the complainant, the said amount was debited from his account and the complaint being false and frivolous is liable to be dismissed, as is the defence of the OPs.
7. Close scrutiny of the entire evidence on record of the case file, coupled with the rival contentions of the learned counsel for the parties, are discussed as under:-

1. At the very outset, it may be observed that though the complainant has not pleaded the facts of sharing of details of his ATM card, pin, OTP with the caller in the consumer complaint, but, the applications/complaints (C-2 and C-4) filed by the complainant before different authorities immediately after deduction of the said amount from his account clearly indicate that he himself had shared those details with the caller and thereafter approached the OPs with the request to block his ATM card.  Thus, one thing is clear on record from the documents having been relied upon by the complainant that he himself had provided every detail of his account, ATM card, pin as well as OTP received by him on his mobile to the said caller.  It is further clear from the documentary evidence having been relied upon by the parties on record that the moment, the complainant informed the OPs about the said deduction of amounts from his account as well as his request for blocking the ATM, no single paisa was debited from his account.
2. In support of his arguments learned counsel for the complainant has contended with vehemence that it was the duty of the OPs to protect the amount available in his account and as the complainant was informed by the caller that he is senior officer of the bank and details of his account are required for activation of the ATM, OPs cannot escape from their liability, especially when it is clear on record that there was deficiency in service as well as unfair trade practice on their part and the complainant is entitled for the amounts as prayed for. On the other hand, learned counsel for the OPs has contended with vehemence that since it is widely published/circulated that the customer has not to disclose or share details of his account, ATM card, pin OTP, to anyone, including to person representing himself to be bank official, in order to protect day to day frauds having been played by the fake callers, OPs cannot be fastened with any liability for withdrawal of any money from the account of the complainant who himself had given details of his account, ATM card, pin as well as OTP to a fake caller.  In support of his arguments, learned counsel for the OPs has drawn our attention to the circular issued by the RBI dated 6.7.2017 (annexed with the written statement at page 10 to 16) and the relevant paragraph thereof (at internal page 3) is reproduced as under :-

          “(b) Limited Liability of a Customer

7.       A customer shall be liable for the loss occurring due to unauthorised transactions in the following cases :

(i)      In cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss until he reports the unauthorized transaction to the bank.  Any loss occurring after the report of the unauthorized transaction shall be borne by the bank.

xxx                       xxx                       xxx”

3. In support of his arguments, learned counsel for the OPs has further drawn our attention to case titled as Chairman, Punjab National Bank & Anr. Vs. Leader Valves Ltd., II (2020) CPJ 92 (NC) in which it was observed as under :-

        “11.   The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the Complainant/account-holder). The answer, straightaway, is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account-holder), is its responsibility, and not of the consumer.”

4. In the case in hand, when it is an admitted case of the complainant that the aforesaid amount was debited from his account only when he shared the details of his account, ATM card, pin and OTP, it is clear on record that the aforesaid unauthorized transfer was not occasioned by an act of malfeasance on the part of functionaries of the bank; rather the same had occasioned by an act of malfeasance on the part of the complainant/account holder himself. Thus, it is unsafe to hold that there was any deficiency in service or unfair trade practice on the part of the OPs.
5. Another contention of the learned counsel for the complainant is that even the OPs were asked by the office of the Banking Ombudsman vide Annexure C-4 to refund the amount to the complainant and as the OPs have not complied with the said order in which it was held that the OPs had not complied with the instructions contained in circular dated 28.2.2013 and they cannot escape their limited liability. However, Annexure C-4 is of no help to the complainant as the said annexure only contains minutes of meeting and has not discussed about the last circular dated 6.7.2017 issued by the RBI which clearly instructed the financial institutions/banks that in cases where the loss is due to negligence by a customer such as where he has shared the payment credentials, customer will bear the entire loss until he reports the unauthorized transaction to the bank.

Point No.3

8. The defence of the OPs is that the complainant is not a consumer. However, as it has come on record that the complainant was having his account in the OP bank and was also using the ATM card issued by them by hiring services of OPs on consideration, it is unsafe to hold that the consumer complaint of the complainant is not maintainable. 

Relief

9. In the light of the aforesaid discussion, the present consumer complaint being devoid of any merit is hereby dismissed leaving the parties to bear their own costs.
10. Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
Announced	[Suresh Kumar Sardana]	[Pawanjit Singh]	[Surjeet Kaur]
28/09/2022	Member	President	Member
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