DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _155_ _ OF ___2016
DATE OF FILING :_20.12.2016 DATE OF PASSING JUDGEMENT: _8.8.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Babul Das
2. Jhuma Das , both of “Saradashis”, 4/4, Anandanagar, P.O Parbangla (Via-Batanagar), Kolkata – 140.
O.P/O.Ps :The Branch Manager, State Bank of India, Batanagar Branch, P.S Maheshtala, Kolkata – 141.
_______________________________________________________________________
J U D G M E N T
Sri Ananta Kumar Kapri, President
The complaint case in its narrow compass runs as follows.
Complainant have maintained a Savings Bank Account bearing no. 10254165005 with O.P bank . On 28.12.2015 they got their Pass Book updated and having got the pass book updated, they were struck with utter amazement to see that Rs.80,000/- has been debited from their account by someone in three phases on 22.12.2015. No SMS alert was forwarded to them by the Bank i.e O.P-1. Complainant no.1 went to the Manager of the O.P Bank to lodge complaint; but the Manager of the bank did not accept the complaint. Thereafter, he lodged G.D before the Maheshtala P.S on 29.12.2015 and also brought the matter to the notice of Consumer Affairs Department . But, all these efforts of the complainants ended in fiasco. Again ,on 13.1.2016 the Bank was informed by sending letter through speed post and thereby the bank was asked to refund the money withdrawn from the account of the complainants. The Bank i.e O.P gave no response to the complainants. Complainants fell ill due to shock of the incident. They have filed the instant case, praying for refund of Rs.80,000/- and compensation of Rs.70,000/-. Hence, this case.
O.P has been contesting the case by filing written version of his statement ,wherein it is contended mainly that the ATM Card and the Secret Pin remained in the custody of the complainants and without those things, no-one will be able to withdraw money either from ATM or from the GCC. The money has been withdrawn from the account of the complainants by none but the complainants having used the ATM and four digit PIN. Cheque leaves are not required to be filed for withdrawal of money from GCC and money can be withdrawn from GCC by using ATM Card and PIN. It is none but the complainant who are answerable for unauthorised withdrawal of money from their account. There is no deficiency in service on the part of the O.Ps and, therefore, the case should be dismissed in limini with costs.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service as alleged by the complainants?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE ON AFFIDAVIT
Petition of complaint is treated as evidence of the complainant vide his petition dated 16.5.2017. Evidence on affidavit has been led by the O.P. Questionnaire, reply and BNA filed herein are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the complaint, written version of statement filed by the O.P and also the documents filed on behalf of the parties. Considered all these.
Undisputedly, a sum of Rs.80,100/- has been withdrawn from the account of the complainants maintained with the O.P Bank. It is the case of the complainants that they have not withdrawn the money and the said money has been withdrawn by some mischievous persons. It is also undisputed fact that the ATM and four digit PIN have remained in the custody of the complainants . It is not the case of the O.P that complainant-1 has withdrawn the money with the help of his ATM and PIN. Complainant no.1 has stated in his evidence that he did not use ATM Card and PIN to withdraw the sum of Rs.80,100/- . It also transpires in his reply given to the questionnaire submitted by the O.P that he has never shared his ATM Card and PIN number with anybody or any relative of him at any point of time. No suggestion whatsoever has been given to the complainant no.1 on behalf of the O.P Bank that he has given ATM and PIN to others for withdrawal of money from his account.
In the facts and circumstances as transpiring on evidence ,we may say that there is nothing to disbelieve the evidence of the complainants that they did not withdraw the sum of Rs.80,100/- from the account with the help of ATM and PIN which remained in the custody of the complainant no.1 This version of the complainants has not also been challenged by the O.P Bank, because no suggestion contradicting the aforesaid evidence of the complainant-1 has been given to him. Regards being had to all these facts and materials as transpiring on evidence, we feel no difficulty whatsoever to hold that the complainants have been able to prove that they have not withdrawn the aforesaid money from their account with the help of their ATM Card and PIN and that the said money has been withdrawn by some hackers. It is the version of the bank/O.P that they are not at all responsible ,because of the fact that money can never be withdrawn from the account of a person without using ATM Card and PIN Number . To buttress their contention reliance has been placed upon three Rulings as cited below –
- SBI Vs. K.K. Bhalla 2011(2)CPJ 106(NC).
- Smt. Mitali Saha Vs. ANZ Grindlays Bank 2003 (4) CPJ 210 (WB).
- Arun Deep Vs. HDFC Bank Ltd. 2013 (3) CPJ 174 (Chandigarh).
In all the above rulings it has been laid down that when ATM Card and PIN is in custody of account holder, the account holder is responsible for any unauthorised withdrawal of money and the bank is not liable .
The latest ruling of the three rulings, as mentioned above, was passed in 2013 i.e five years ago. That time, e-fraud was in nascent stage. It could not take its shape in full flight. Thenceforward ,many a water has flown down the Ganges and Cyber crime and e-crime have been able to make formidable inroad into our country. Banking system has not also been spared from the onslaught of such kind of e-fraud. This is the fact nowadays. And it has been almost proverbial. Myriads of customers are now falling prey now and then, to such kind of fraud and are robbed of their hard earned money kept in the custody of the Bank. The banks are earning their bread and butter from the money of innocent customers . When the said money is swindled away, the banks go to play ostrich like. It was the time when no one was able to withdraw money from the ATM without having used ATM Card and four digit PIN . But that augustan age is now over. At present, money can be withdrawn from the ATM without having used the ATM Card and the secret PIN and this is done by the hackers who are roaming about here and there in the country. Incident of withdrawal of money from the ATM by the hackers are almost seen each and every day on the headlines of the papers and now no-one will be able to deny that money can be withdrawn from the ATM without the use of the ATM Card and the secret PIN. The rulings as cited above were laid down at a time when the hacking of money did not gain its stronghold. That apart, all the above rulings applied to unauthorised withdrawal of money from the account of a person. Unauthorised withdrawal of money is distinguished from the fraudulent or deceptive withdrawal of money. Unauthorised withdrawal of money takes place with implied consent of the account holders; it takes place when the ATM Card Holder makes over his Card and PIN to any other person with the tacit consent that the said person will withdraw money from his account. Such kind of withdrawal of money by that other person is unauthorised withdrawal of money; it is unauthorised use of ATM Card and secret PIN of the account holder. Fraudulent and deceptive withdrawal of money is something different from unauthorised withdrawal of money. In case of fraudulent withdrawal of money there is no transfer of ATM Card or secret PIN by the account holder to the hackers of money and the hackers are withdrawing money with the help of fraudulent or deceptive means; they do never use the original ATM Card and secret PIN of the account holders. They collect the PIN of account holder by fraudulent means and also clone the ATM Card having adopted unlawful means and procedures and thus they get succeeded to withdraw money from the ATM with the help of cloned ATM Card and the PIN number. All the above rulings relate to unauthorised withdrawal of money; they do never relate to fraudulent or deceptive withdrawal of money and, therefore, in the backdrop of changed scenario of society, those rulings do no longer apply to the facts of the instant case .
Coming to the facts of the instant case, we feel constrained to say that in the instant case, the complainants have fall a prey to deceptive or fraudulent withdrawal of money but not to unauthorised withdrawal of money, because it has transpired from the evidence on record that the complainant no.1 did never part with his ATM Card and PIN and that he did never share the same with any other person.
Money deposited with the bank is the money of the members of the public. It is the absolute responsibility of the bank to ensure safety and security of the money of the customer. It is the absolute responsibility of none but the bank to ensure safety and security of the ATM Kiosk so that no miscreant can get any access to the machinery. Reserve Bank of India stands at the apex of the banking system and it is found that the Reserve Bank of India is not perhaps unaware of the fact of money hacking in the country. Recently it has struck the News as reported in the “Times of India” that RBI has issued a wholesome direction to the Bank to the effect that the customers are not liable for e-fraud , if reported in time. The RBI has introduced a policy of ‘Zero’ liability for customers in third party frauds ,if they are reported within three days, and in cases where victim notifies the fraud between 4-7 days after coming to know about it, the liability will be capped at Rs.5000/-. The three day time limit for report on fraud will start from the day the customer receives the intimation about the transaction from the bank and it is given either by way of SMS ,email or statement. This directives put onus on the bank to notify the customer of the transaction as soon as possible.
In the face of the aforesaid guidelines of RBI also, it is the banks who are responsible to ensure safety and security of the money deposited by the customers with them. O.P-1 does not say why SMS has not been forwarded to the complainant no.1 when the money was withdrawn from his account ,which is a negligence on the part of the O.P bank and this negligence goes to prove that the O.P bank has not taken proper security step to ensure safety and security of the money of the customer. It is also enjoined by RBI that a CCTV is to be maintained in every ATM Kiosk . In the ATM Kiosk , from where money of the complainant no.1 has been swindled away by the hackers, is installed a CCTV but the said CCTV did not work on the very day the money was withdrawn from the ATM machine. Further, the banks are required to deploy security personnel in each and every ATM Kiosk . But there is no security person deployed by the O.P-1 in the ATM Kiosk ,from where the money was withdrawn by the hackers. Want of these steps on the part of the O.P bank are nothing but negligence and, therefore, these are deficiency in service on his part. Last of all, we feel compelled to say one thing and the thing is that the money has been deposited by innocent customers with the banks and it is none but the bank who will have to ensure safety and security for the said money. If the money is stolen away or hacked (hacking is tantamount to theft), bank will be liable and that has also been reflected in the guidelines of RBI as mentioned above.
In the instant case, the money was withdrawn on 22.12.2015 and it has come to the knowledge of the complainant no.1 on 28.12.2015 ,when he got his pass book updated . On that very day i.e on 28.12.2015 he wanted to lodge complaint before the Manager of the Bank, O.P, but his complaint was not received by the said Manager. So, it is found that the complaint was lodged within three days of the discovery of fraud and ,therefore, the O.P Bank will have to bear the consequences arising from hacking of money in according with the guidelines of RBI. We do say at the cost of repetition that O.P Bank is liable to compensate the complainant for the loss suffered by them due to withdrawal of money fraudulently by the hackers from their account maintained with the O.P.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decrered on contest against the O.P with a cost of Rs.10,000/-.
O.P Bank is directed to credit Rs.80,100/- to the account of the complainant within a month of this order , failing which the aforesaid amount will bear interest @8% p.a till full realization thereof.
No compensation is awarded to the complainants for harassment and mental agony suffered by them due to hacking of money, because the O.P Bank was not directly responsible for such harassment and mental agony of the complainant.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
