ORDER

12.02.2024

SH. RAJESH, MEMBER

1. A complaint has been filed by complainant seeking direction to OP to refund a sum of Rs. 42,000/- to complainant with interest, cost and compensation against the deficiency in services on the part of the OP.
2. It is stated that the complainant is operating a saving bank account number 510402010003042 with the OP.
3. It is stated that Complainant was shocked to know on 13.02.2019 when he came to know that on 16.12.2018 a sum of Rs. 42,000/- was withdrew by some unauthorized / unknown persons in five parts of Rs. 10,000/-, 10,000/-, 5,000/-, 10,000/- and Rs. 7,000/-.
4. It is stated that the ATM card remained with the complainant at all the time when disputed transactions happened. 
5. It is further stated that the complainant also lodged a complaint with Police Station Bhalswa Dairy on 14.02.2019 vide DD No. 50B.
6. It is stated that the complainant was assured by the officials of Delhi Police that clarification in this regard will be given within one week.
7. It is stated that complainant demanded CCTV footage of disputed withdrawal from OP but he was denied.
8. It is stated that Complainant also approached cyber cell but they didn’t entertain the complainant.  
9. It is stated that the complainant made several visits to the office of OP thus lost his precious time, money and energy. Hence complainant has preferred present complaint seeking a direction to OP to refund Rs. 42,000/- along with interest, cost and compensation. 
10. Complaint was admitted and noticed was issued to opposite party. Opposite party appeared and denying allegations made in the complaint filed its detailed Written Statement.
11.  It is stated that neither the OP bank nor any officials thereof have committed any dereliction or negligence in their duties nor there is any deficiency in services as alleged. In fact, the complement has committed the gross negligence. The probability of sheer abuse of the ATM / debit card by the complainant cannot be ruled out. It is a case of connivance amongst complainant and his accomplices, who made the alleged withdrawals with the knowledge, consent and connivance of the complainant. In fact if there is a meticulous fraud played upon the bank, The accessibility to the ATM / debit and its pin number to the alleged person are self explanatory and indict towards complainant.
12.  It is stated by the OP in the Written Statement that the present complaint is not maintainable as there is no consumer dispute between the parties and as such the complaint of the complainant is liable to be dismissed with heavy costs.  It is stated that as a matter of fact, the answering OP bank  is only a custodian of the said saving bank account and the ATM withdrawals were taken place from ATM Machines of other banks and not of answering OP bank. The alleged entries took place at Axis Bank Ltd., Canara Bank and Jamia Cooperative Bank Ltd. Hence the answering OP bank cannot be held liable for any deficiency in services as alleged. The present complaint is therefore, also not maintainable due to non joinder of necessary parties. It is stated that the OP has no role in the alleged withdrawals.
13.  In support of their respective contentions made in the complaint and WS the parties have led their evidence by way of affidavits re affirming his contents made in the complaint and WS respectively. Parties have also filed their written arguments on records.
14. We have perused the record available before us and heard the complainant in person and Ld. Counsel for OP.
15. The first fundamental question that arises in the present complaint case is whether OP Bank is liable for the alleged fraudulent transactions in the saving Bank account of complainant causing him loss to the tune of Rs. 42,000/-.
16. Reliance is made by OP to circular bearing No.DBR.No.Leg.BC.78/09.07.005/2017-18 dated 6th July 2017 issued by the Reserve Bank of India to all commercial banks, wherein it is stated as under:-

6. A customer’s entitlement to zero liability shall arise where the unauthorised transaction occurs in the following events:

1. Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).
2. Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorised transaction.

(b) Limited Liability of a Customer

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

3. 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 unauthorised transaction to the bank. Any loss occurring after the reporting of the unauthorised transaction shall be borne by the bank.
4. In cases where the responsibility for the unauthorised electronic banking transaction lies neither with the bank nor with the customer, but lies elsewhere in the system and when there is a delay (of four to seven working days after receiving the communication from the bank) on the part of the customer in notifying the bank of such a transaction, the per transaction liability of the customer shall be limited to the transaction value or the amount mentioned in Table 1, whichever is lower.

17. Now applying the above discussed provisions of law and Principles laid down in the present case admittedly the alleged transaction took place on 16.12.2018 whereas the complainant came to know about the same on 13.02.20219 and reported the same to OP on 14.02.2019 i.e. within three working days to OP.
18. As per RBI guidelines OP is bound to conduct an inquiry with regard to the complaint of alleged unauthorized transactions in order to find out whether the same occurred to due to negligence of complainant himself or not. Though the Bank has categorically blamed complainant for compromising the private and secret information with respect to Debit Card issued by OP bank to OP  due to which alleged transaction might have taken place however OP has not stated that he conducted an inquiry in the matter consequently no inquiry report has been placed on record to substantiate the contention of the OP.
19. In view of above RBI guidelines and the above discussions the complainant is entitled to zero liability since customer / complainant has notified the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.
20.  In the absence of conducting an inquiry in the matter OP is not entitled to protection of RBI guidelines (supra) and is therefore held liable for deficiency in services.
21. The objection of the OP that since the Saving A/c operated by complainant is in the joint name of complainant himself and his wife Neelam and therefore present complaint individually in the name of complainant is liable to be dismissed due to Non Joinder of necessary party also does not hold water in view of the fact that complainant has filed complaint before OP in the joint name. Moreover, the Consumer Protection Act, 2019 is a beneficial piece of legislation and consumers ought not be denied relief on hyper technicalities for which they are otherwise entitled. 
22.  In view of above discussions and RBI guidelines present complaint is allowed. OP is directed to pay a sum of Rs. 42,000/- to complainant with interest @ 6% p.a. from the date of notifying the unauthorized transaction. OP shall also pay a sum of Rs. 15,000/- including cost of litigation. The above amount shall be paid within one month of receiving the order by the OP failing which same shall carry interest @ 9% from the date of default till the date of realization / payment. The decretal amount shall be paid Jointly to Complainant and his wife Ms. Neelam. 
23. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in. File be consigned to Record Room.

Announced in open Commission on 12.02.2024.

(SANJAY KUMAR)                            (NIPUR CHANDNA)                                       (RAJESH)

PRESIDENT                                             MEMBER                                                     MEMBER