Delhi

North

CC/64/2019

RAKESH KUMAR - Complainant(s)

Versus

UNITED BANK OF INDIA - Opp.Party(s)

AMIT JAIN

31 Mar 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 64/2019

 

Sh. Rakesh Kumar,

S/o Sh. Late Chhatanku Ram,

R/o A-249/250,

H. No. 38, Garwali Mohalla

Laxmi Nagar, Delhi-110092                                …                Complainant

 

                                                          Vs

 

United Bank of India

Through its Chairman/ Managing Director

Headquarter At:-

4^th Floor, United Tower

11, Hemkunt Basu Sarani

Kolkata (West Bengal)-700001

 

United Bank of India

Through its Branch Manager

The Oberai Hotel Branch

7, Sham Nath Marg

Delhi-110054

 

United Bank of India

(Regional Office) JC Das Building

908, Conaught Circus

Near Madras Hotel

New Delhi-110001                                               …                 Opposite Party

 

ORDER

31/03/2023

 

Ashwani Kumar Mehta, Member:

 

          The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint, are that the Complainant is having a Savings Account No. 0277010051861 with the branch of Respondent No. 2 and ATM Card is also issued to the Complainant by the respondents in that savings account.

The Complainant got information on 13.09.2018 on his Mobile number 9013619365 through SMS service of respondents that Rs.40,000/- has been withdrawn through ATM located at Main Market Shalimar whereas the Complainant had not used his ATM  Card since 11.09.2018 and on particular date and time i.e. 13.09.2018 at 09.01 to 09.02, the ATM Card of Complainant was with him at his home and somebody made fraudulent transactions of Rs.40,000/- from the account of the Complainant through ATM.

The Complainant, after having knowledge of fraudulent transaction of Rs. 40,000/- in his account, lodged one police report immediately on 13.09.2018 vide FIR No.SHD-AV.000822 dated 13.09.2018 with Police Station e-police station Anand Vihar, Shahdara District Crime Branch, Section 379 IPC and also reported the matter on 14.09.2018 in writing to respondent. Thereafter, the Complainant approached to respondent No.2 many times for credit of Rs.40,000/- in his account, but the amount of Rs.40.000/- has not been credited in his account. Besides, as per RBI guidelines, the amount of fraudulent transaction i.e. Rs.40,000/- in the present case, would have to be shown by the respondents as SHADOW CREDIT immediately but the same has also not  been done . Therefore, the Complainant has filed this complaint, praying that an award of Rs. 40,000/- (as amount withdrawn from the ATM/bank of Complainant) and Rs.50,000/- as damages/compensation may kindly be awarded in favour of the Complainant and against the respondents jointly or severally with interest @ 12% per annum till realization in the interest of justice.

Accordingly, notices were issued to the OPs and in response to the Notice issued, common reply has been filed on behalf of all the OPs stating that the present complaint should be dismissed because there is no deficiency of service on behalf of the respondent Bank. As per the allegation made by the Complainant, some fraud has taken place and he has referred the matter to the police by registration of FIR. Therefore, the Complainant himself admits that the fraud has taken place and there is no negligence in the services of the respondent bank. The present complaint should be dismissed on this ground as the complainant stated in his application dated 14.09.2018, “that the location is unknown as shown in the messages received “main market Shalimar” we don’t know how did the happened”. In view of the same, the bank cannot be held responsible under the Consumer Protection Act and the complaint should be dismissed accordingly. It has also been stated by the OPs that Complainant got information on 13.09.2018 on his Mobile number 9013619365 through SMS service of respondents that Rs.40,000/- has been withdrawn through ATM located at Main Market Shalimar whereas the Complainant had not used his ATM  Card since 11.09.2018 and on particular date and time i.e. 13.09.2018 at 09.01 to 09.02, the ATM Card of Complainant was with him at his home and somebody made fraudulent transactions of Rs.40,000/- from the account of the Complainant through ATM. It has been contended by OP that no transaction can be made without using the ATM Card. Therefore, the contention claimed by complainant are false, frivolous and misleading. The Complainant would have handed over card to somebody for withdrawal of the money and thereafter, the Complainant filed a false frivolous complaint. It has further been stated by the OPs that the complainant has not filed any proof in support of his contention. Hence, there is no deficiency of service by the respondents and neither the respondents are responsible for the loss of the amount because the complainant was holding his ATM Card and the same would have been used by the Complainant, or on his direction, therefore, the Complainant is solely responsible for the transaction taken place through his card.

It is specifically denied that as per the knowledge of complainant and as per RBI guidelines, the amount of fraudulent transaction i.e. Rs.40,000/- in the present case would have to be made by the respondents as Shadow Credit immediately but the same has not been done till date. In this regard, the OPs has stated that if any fraud has been taken place as alleged by the Complainant then it is the responsibility of the police to know as to how the same has taken place. It is further submitted that the respondents are not responsible for the fraud taken place, with the negligence of the Complainant, by handing over the ATM Card to somebody else and therefore, the complaint should be dismissed.

Findings

The Complainant and the OPs have also filed Evidence by way of Affidavit affirming their allegations and explanations/replies in the matter. The arguments have also been heard and the complaint has been examined in view of the facts of the case and averments/documents submitted by both the parties and it has been observed that the Reserve Bank of India vide DBR.No.Leg.BC.78/09.07.005/2017-18 dated 06.07.2017 has issued instructions regarding “Consumer Protection- Limiting Liability of Customers in Unauthorised Electronic Banking Transactions” which stipulates that:-

(a) Zero Liability of a Customer

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:

1. 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.
2. 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.

Table 1
Maximum Liability of a Customer under paragraph 7 (ii)
Type of Account	Maximum liability (₹)
• BSBD Accounts	5,000
• All other SB accounts • Pre-paid Payment Instruments and Gift Cards • Current/ Cash Credit/ Overdraft Accounts of MSMEs • Current Accounts/ Cash Credit/ Overdraft Accounts of Individuals with annual average balance (during 365 days preceding the incidence of fraud)/ limit up to Rs.25 lakh • Credit cards with limit up to Rs.5 lakh	10,000
• All other Current/ Cash Credit/ Overdraft Accounts • Credit cards with limit above Rs.5 lakh	25,000

Further, if the delay in reporting is beyond seven working days, the customer liability shall be determined as per the bank’s Board approved policy. Banks shall provide the details of their policy in regard to customers’ liability formulated in pursuance of these directions at the time of opening the accounts. Banks shall also display their approved policy in public domain for wider dissemination. The existing customers must also be individually informed about the bank’s policy.

8. Overall liability of the customer in third party breaches, as detailed in paragraph 6 (ii) and paragraph 7 (ii) above, where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, is summarised in the Table 2:

Table 2
Summary of Customer’s Liability
Time taken to report the fraudulent transaction from the date of receiving the communication	Customer’s liability (₹)
Within 3 working days	Zero liability
Within 4 to 7 working days	The transaction value or the amount mentioned in Table 1, whichever is lower
Beyond 7 working days	As per bank’s Board approved policy

The number of working days mentioned in Table 2 shall be counted as per the working schedule of the home branch of the customer excluding the date of receiving the communication.

Reversal Timeline for Zero Liability/ Limited Liability of customer

9. On being notified by the customer, the bank shall credit (shadow reversal) the amount involved in the unauthorised electronic transaction to the customer’s account within 10 working days from the date of such notification by the customer (without waiting for settlement of insurance claim, if any). Banks may also at their discretion decide to waive off any customer liability in case of unauthorised electronic banking transactions even in cases of customer negligence. The credit shall be value dated to be as of the date of the unauthorised transaction.

10. Further, banks shall ensure that:

1. a complaint is resolved and liability of the customer, if any, established within such time, as may be specified in the bank’s Board approved policy, but not exceeding 90 days from the date of receipt of the complaint, and the customer is compensated as per provisions of paragraphs 6 to 9 above;
2. where it is unable to resolve the complaint or determine the customer liability, if any, within 90 days, the compensation as prescribed in paragraphs 6 to 9 is paid to the customer; and
3. In case of debit card/ bank account, the customer does not suffer loss of interest, and in case of credit card, the customer does not bear any additional burden of interest.

 

On the perusal of the records available in the matter and reply of the OPs,  it has been observed that OP has not taken any action for protecting the consumer in unauthorized electronic banking transaction as per the above discussed instructions of the Reserve Bank of India and has tried to shift the liability on the Complainant on the basis of presumptions that the Complainant would have handed over card to somebody for withdrawal of the money  without filing any evidence/ CCTV footage  of the ATM to prove that the withdrawal was taken by the Complainant. The OPs/ United Bank of India has also not taken any action in terms of the above discussed instructions dated 06/07/2017  issued by the RBI to all scheduled Commercial banks to protect the Customer’s  (who is consumer in this case) liability which proves that  the complainant has suffered directly due to deficient service of the OPs (United Bank of India) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.

 

Therefore, we feel appropriate to direct the OP (United Bank of India) to pay Rs.40,000/- (Rupees Forty Thousand only) within thirty (30) days from the date of this order, with interest at the rate of 9% p.a. from 30-03-2019 (date of filing of complaint) till the date of the payment. Besides, the OP is also directed to pay Rs.25,000/-(Rupees Twenty Five Thousand only) as compensation to the Complainant for the mental pain, agony and harassment. It is clarified that if the abovesaid amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

 

Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                     DIVYA JYOTI JAIPURIAR

                       Member                                                                   President       

            DCDRC-1 (North)                                                    DCDRC-1 (North)