ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not sending the amount through RTGS to his account sent from his account standing with OP1 and further to refund Rs.12,93,922/- being withdrawn from his account by unscrupulous elements of society from his account starting from 12.04.2019 to 30.04.2019 and for refund of the same along with interest at 18% p.a., on the said amount, and for Rs.1,00,000/- as compensation for causing mental agony and hardship along with interest at 12% on the said amount, and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

Complainant is an account holder of OP1. He is a retired professor in Botany from Bangalore University and getting the pension benefits and other to his saving account NO.54047052602.  A sum of Rs.25,00,000/- was in deposit to the said account on account of receipt of his gratuity and DCRG amount.  On 11.03.2019 he requested OP1 to transfer a sum of Rs.25,00,000/- to his account standing with Syndicate Bank Yadavanne Branch, Kunigal Taluk.  OP1 received the bank charges for transfer of the money through RTGS.  Inspite of it, the said amount was not transferred to his account and he did not get money into the account and OP1 failed to communicate the failure of the RTGS.

3.      It is contended that, he was in his native place doing agricultural activity which has no mobile networking.  On 30.04.2019 he went to OP1 and found that there was no amount in his account. He immediately got the details of the transactions and found that between 12.04.2019 to 30.042019 hackers have withdrawn a sum of Rs.12,93,922/- from his account. The same was brought to the notice of the manager of OP1 who directed him to file a complaint before the police. He went to Gnanabharathi Police station and made a complaint who received the same and gave an endorsement. He also made a complaint on 17.05.2019 to the cybercrime police station and also to the commissioner of police. No progress was achieved in this direction.  

4.      On enquiry with the bank, regarding the fraudulent transaction and crediting the said amount to his account the bank gave an endorsement that the complaint is still under process and as soon as the reply received from the regional office, they would take action.  OP1 has developed unsecured software lack of firewall in the software which they have adopted has led the situation wherein the hackers have medelled his account and withdrawn the money.  This is due to the negligence on the part of the bank.  Had they transferred Rs.25,00,000/- to his account, this situation would not have arisen.  Hence he was put to great mental agony, stress.  Even the matter was taken before the Ombudsmen who dismissed his complaint without giving any opportunity. Inspite of OP knowing fully well the mobile number of the hackers’ transaction, ATM location, the time and the amount drawn, they have not taken any action in this regard. Hence there is deficiency in service on the part of OP and prayed the commission to allow the complaint.

5.      Upon the service of notice, OPs appeared before the Commission and filed their version.  In the version filed by OP1, 2 and 3, it is contend that the complaint is not maintainable either in law or on facts and it is meritless, vicious and liable to be dismissed by imposing exemplary cost.  Complainant is not entitled for the relief claimed in the complaint. The allegation that the OPs have not made proper security to protect the customers savings amount and deposits is totally false.  They have taken all steps to ensure fool proof system to protect the money of the customers. The State Bank of India and Government of India are publishing and giving advertisement in daily newspaper and sending SMS to each of them customers about the fraudulent messages from the hackers and warning to the customers not to share Aadhar number, OTP number TOPTP, MPIN to anyone.  Even it informs the customers that the bank will never ask for personal information over the phone. 

6.      It has admitted that complainant is having a savings bank account with OP1. It is true that the complainant had money with his bank account with OP1 and requested OP1 to transfer through RTGS to his account standing with syndicate bank, Yadavane branch, Kunigal taluk. When OP1 tried to transfer the above said amount to the account number given by the complainant it was showing that the said account number was not in existence. The same was intimated to the complainant through SMS.  Hence there is no fault and deficiency on the part of OP1, since the complainant has not given the proper account number and now making false complaint against the OPs.

7.      It is admitted that between 12.04.2019 to 30.04.2019 complainant came to realize that hackers has withdrawn an amount of Rs.12,93,922/- as correct. In fact complainant himself has transferred Rs.1,50,017/- through NEFT to one Abhishak Sharavath and Rs.1,50,000/- through cheque and Rs.80,350/- also through the cheque.  Only on 02.05.2019 he reported regarding fraudulent withdrawal of the money of Rs.12,93,922/- by the hackers and he gave a complaint to the police on 17.05.2021.  He was not in his native, whereas he was in Bangalore only.  As per RBI guidelines on customer compensation policy, customer is fully liable for the value of transaction when he reports the matter to the bank after seven working days.  It is true that he made a complaint to the police on their direction and police received the same and gave an endorsement to him.   After receipt of the intimation regarding fraudulent transaction, they blocked all the further trials of fraudulent withdrawals of the money.  OP1 himself sent the matter to the internal ombudsmen for refund of disputed amount of Rs.12,93,922/- and the internal ombudsmen rejected the claim of the complainant stating that

1. Analysis of the circumstances under which the said transaction happened indicates that it is a fraudulent transaction which has happened through UPI

2. Support UPI report shows that to set MPIN one OTP is sent from remitter bank account number 54047052602 on 12.04.2019 to the registered mobile number i.e., 9742228946, once OTP received remitter can set MPIN

3. Hence may be the remitter would have shared the OTP with the fraudster, hence the transaction was initiated by the fraudster.

4. The fraudster transaction had commenced on from 12.04.2019 starting with Rs.1/- and though the customer had given three cheques with no.034229 for Rs.1,50,017/- cheque no.034230 for cheque no.1,50,000/- no.034231 for Rs.80,350/- debited to his account on 15.04.2019.  he has reported the matter to the branch only on 02.05.2019 as per his letter.

5. Also in terms of RBI/bank guidelines on customer compensation policy customer is fully liable for the value of transaction when he reports the matter to the bank after seven working days.

6. The customer has also mentioned in his letter/statement that he has shared the Adhaar number with the fraudster.

8.      The complainant has suppressed the material facts and mislead the court saying that bank has not taken any action to recover the money.  In the complaint given to Cybercrime police at Bangalore on 17.05.2019 he has stated that one accused introduced himself as Bank Manager and requested the Aadhar number on phone on 02.04.2021, name not known to me. Obviously the complainant has shared his aadhar number. Though the bank and government of India informs the account holders not to share the details of the account, aadhar number, pan card and OTP numbers.  As the transaction between 12.04.2019 to 30.04.2019 was taken place on each transaction the complainant was sent and he message with regard to the transaction, whereas, the customer has been negligent and ignored the messages till 30.04.2019.  He has also mentioned in the complaint given to the bank that he had confidence with bank hence messages were ignored and he has not installed net banking app and using only cheque and the card, which itself shows that due to negligence on the complainant only fraudulent transaction has taken place. 

9.      Had the complainant taken the message seriously as per the messages received whenever the transaction has taken place, the fraudulent transaction would not have taken place. It is because of the negligence of the complainant only this fraudulent transaction has taken place.  Search UPI report sent to SBI on 29.05.2019 says that “please note to set MPIN one OTP is sent from remitter bank account number 00000054047052602 on 12.04.2019 at 10.21.19 for mobile number 919742228946.  Once OTP is received remitter can set MPIN. Hence may be the remitter would have shared the OTP with the fraudster. Hence the fraudulent transaction was initiated by fraudster.  The copy of the complaint filed by the complainant to the cybercrime, FIR, the screen shot of SMS received by the complainant and the list of SMSs sent to the complainant bank and search UPI report have been produced to the court for the perusal.

10.    It is true that the complaint registered by the Ombudsmen was dismissed, as there was no ground to proceed with.  As the request with the Ombudsmen was rejected, with malafide intention, complainant has filed this complaint and also gave a letter to the Manager who assumed charge recently, requesting him to refund the amount involved.  Complainant has mislead the Bank manager in this case. They have denied that due to the week software, lack of firewall in the software adopted, the fraudster has hacked the amount. It is not due to the week software and lack of firewall in the software the fraud has taken place, whereas it is due to the negligence of the customer for having shared the aadhar number and other details to the fraudster.  OP is not responsible for the negligence on the part of the complainant. They have maintained and adopted proper software to secure and maintain the accounts of its customers. Each time when the transaction took place, complainant was alerted by issuing SMS but complainant was negligent in ignoring the same due to which fraudulent transaction took place. Hence prayed to dismiss the same.

11.    Banking Ombudsmen who is made as OP4 has filed its version contending that the allegations made against him are all false, vexatious and frivolous.  The complaint is not maintainable either in law or on facts and is devoid of merits.  Complainant has not availed any services of the Ombudsmen and hence there is no relationship of service provider and consumer as defined u/s 2(7) of the Consumer Protection Act and there is no deficiency in service as defined u/s 2(11) of the C.P.Act.  Banking Ombudsmen was formed to provide redressal and resolution of the complaints as per the provisions of clause 8 of the Banking Ombudsmen scheme 2006.  The grounds mentioned therein are alone to be taken for resolution by the Ombudsmen.  When the petitioner/complainant filed the complaint against the bank with it regarding fraudulent withdrawal of twelve lakh and more rupees through multiple UPI transactions, a complaint was registered and after enquiry, it was found that the loss to the complainant was due to his negligence as it was found that the complainant has shared the payment credentials. When such being the case, customer has to bare the entire loss until he reports unauthorized transactions to the bank.  Further the order of the Banking Ombudsmen is not final and there is alternate/optional forum for the complainant to get the redressal of this grievance. RBI has issued circular regarding the liability of the customers in respect of unauthorized electronic banking transaction.  When there is negligence on the part of the customer where he has shared the payment credentials, the customer has to bare the entire loss till he reports the unauthorized transaction with the bank.

12.    In this case, after filing of the complaint objections were called from the concerned bank. On December 18^th 2020 bank submitted that the transactions were fraudulent, happened through UPI and OTP was sent to the registered mobile number of the customer to set MPIN and SMS were delivered to the customers registered mobile for all the transactions.  They had also called the comments of the beneficiary bank i.e., PAYTM payments bank and airtel payments bank and the same was forwarded to the complainant. Hence after going through the replays and the materials placed, it has decided and dismissed the complaint. Hence it is not liable to pay any damages as claimed in the complaint and it has discharged its quasi-judicial act/duty and hence prayed the Commission to dismiss the complaint.

13.    In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

14.   Our answers to the above points are:-

POINT NO.1:            Partly in the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

15.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is an account holder of OPPOSITE PARTY. He is also an account holder with the earlier syndicate bank now Canara Bank, Yadavane Branch, Kunigal Taluk, he has clearly admitted that he gave a wrong account number at the time of filing the challan to remit the amount of Rs.25,00,000/- by way of RTGS to his account standing with the Canara Bank, Yadavanne Branch.  In view of the said wrong mentioning of the account number though OP 1 sent the amount through RTGS by collecting the Commission charges, the amount could not be remitted for want of correct account number and the same was remitted back to the account of the complainant within a reasonable time.  Hence we find no deficiency in service on the part of the bank i.e., OP1 in respect of the said transaction.

        16.   It is not in dispute that the complainant by the deceitful act and fraudulent act of some unscrupulous persons lost Rs.12,93,922/.  The said amount was withdrawn from his account commencing from 12.04.2019 to 30.04.2019.  Every withdrawal according to the complainant was intimated to him through SMS, whereas he did not give much importance to the said SMS.  Only when he visited the bank to enquire he came to know the fraudulent transfer of Rs.12,93,922/- and immediately i.e., on 02.05.2019 he made the complaint to the bank in writing and on the directions of the bank, he made a complaint to the police and the cyber crime police who registered the case but did not detect the person responsible for the fraudulent transfers.  It is also his case that he made a complaint to the banking ombudsmen(OP4) who according to the complainant did not give any opportunity for him to put forth his grievance whereas dismissed his complaint on the ground that he has shared the details of the account for which he was held responsible.  

        17.   Upon perusing the version of the OP1, it is the specific case of the OP1 that, as per the documents produced before this commission that, the payments have been made through PTM payments bank and UPI payments bank and also through ATM and the amount cannot be refunded as the complainant has availed the services of the bank.

        18.   Further defence of the OP1 that, the complainant reported the fraud seven days after the incident has taken place and that though the messages were sent with regard to each of the transactions that took place between 12.04.2019 to 30.04.2019, the complainant negligently ignored the said messages and informed that he had confidence with the bank hence messages were ignored and that he has not been using the net banking application using only the cheques and ATM card. On search of the UPI and paytm it was found that to set MPIN, one OTP was sent to the remitter bank account number on 12.04.2019 at about 10:21:19 hours over mobile No.91974228946.  Once OTP is received, remitter can set MPIN.  Hence may be the remitter would have shared the OTP with the fraudster, hence fraudulent transaction initiated by the fraudster.

        19.   When this contention and further the documents produced by the bank to the Ombudsmen escalating the complaint on behalf of the complainant to the Ombudsmen it is clearly mentioned that, the bank received the first information regarding the fraudulent transaction on 02.05.2019.  It is also mentioned at para 9 justification for rejection of the complaint or for granting only partial money only to the complainant;

Point No.1: Analysis of the circumstances under which said transaction happened indicates that it is a fraudulent transaction which has happened through UPI.

Point No.2: support UPI report shows that to set MPIN one OTP was sent from remitter bank account No.54047052602 on 12.04.2019 to the registered mobile No.9742228946.  Once OTP is received remitter can set MPIN. 

Point NO.3: Hence may be the remitter would have shared the OTP with the fraudster. Hence the transaction was initiated by the fraudster.  

Point NO.5: Also in terms of RBI guidelines on customer compensation policy customer is fully liable for the value of transaction when he reports the matter to the bank after seven working days.

Point NO.6: customer has also mentioned in his letter/statement that he has shared the aadhar number with fraudster.  Hence the claim of the customer was rejected.   This is as per Ex.R6.  

20.   Ex.R8 is the complaint given by the complainant to the police wherein it is stated that the accused introduced him as a bank manager and requested the aadhar number on 02.04.2019 name not known to me’.  Accused phone number email ID not known.  

        21.   Though the said statement of the complainant that some person introduced himself as manager of the bank and sought the details of the aadhar card which the complainant has furnished, cannot be taken as revealing the account details.  Merely revealing the aadhar card cannot give access to the bank account of the customers.  The Government of India as well as the RBI directs the customers to link the aadhar card to the bank account, to the pan.  When such being the case, it is the responsibility of the government of India and the RBI to maintain the secrecy and not to provide personal information to any of the persons linked through aadhar card or pan card.  There are quite number of occasions that a person may provide his aadhar card number or the copies of the aadhar card, believing that it is required for the purpose for which it was issued.  If that aadhar card number is misused by the unscrupulous elements the customer or the account holders will not be having any safety to their money deposited in the bank. 

22.   We are of the opinion that mere providing the aadhar card under the circumstance could not have rendered the fraudster to have the account details of the complainant. As mentioned above, to set MPIN one OTP was issued to the registered mobile of the complainant in respect of the account he has with the OP1.  According to Ex.R6 that might have been misused by the fraudster without complainant revealing the same. Bank has failed to show to the Commission that in fact complainant has revealed the one OTP to set MPIN shared to fraudster.  Further in the said letter itself the bank has come to the conclusion that it is a clear case of fraud committed by the fraudster.  Further as per the circular issued by the RBI that the burden of proving negligence or sharing the OTP number, bank details, ATM pin number by the holder of the account is on the bank, which has failed to prove the same.  

23.   Further OP1 has taken the contention that the complainant is fully liable for the loss which he has suffered as the fraud through electronic media has not been intimated to the bank within three working days and the same was done seven days after the incident.  It is also the case that SMS was sent to the complainant as and when the transaction had taken place.  Only one SMS hard copy is produced regarding withdrawal of Rs.19,999./- from the account of the complainant dated 30.04.2019.  Complainant has admitted having received the SMS but he ignored the same.  Even then, it is to be held that the complainant came to know the fraud and cheating by the fraudster in respect of withdrawing an amount of Rs.12,93,922/- from his account only when he visited the bank on 30.04.2019 and immediately within three days i.e., on 02.05.2019 he made a complaint to OP1, the home branch in which he was having the S.B. Account.  In view of this the contention taken by OP1 that the complaint is lodged in respect of the fraud committed after seven days of the incident cannot be held proper and it is only taken to avoid its liability and make the complainant fully liable for the losses he has suffered as per the RBI guidelines.  When the complainant has reported the matter to OP1 on 02.05.2019 i.e., within three days from the date of knowledge of fraudulent withdrawal of the amount of Rs.12,93,922/- from his account, as per the RBI guidelines, the liability on the part of the complainant is NIL.  That means the entire liability and the loss has to be made up by the bank, as, as per the said guidelines, when there is third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system and when the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transactions the customer is entitle to zero liability shall arise when there is unauthorized transaction in the account.  In view of this not paying the amount within the time prescribe under rule 9 of the circular DBR.No.Leg.BC.78/09.07.005/2017-18 amounts deficiency in service on the part of OP1, 2 and 3, wherein OP1 is the branch which deals with the account of the complainant, whereas OP2 and 3 are the higher officers of OP1.  Hence we answer point No.1 partly in the affirmative.

24.   POINT NO.2:

In the result complainant is entitle for refund of Rs.12,93,922/- along with S.B. interest prevailing between 12.04.2019 to 30.04.2019 till payment of the entire amount calculating interest from each day of debit from the account of the complainant by OP1, along with damages of Rs.25,000/- and litigation expenses of Rs.10,000/- and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP1 is directed to reverse the amount of Rs.12,93,922/- along with S.B. interest prevailing between 12.04.2019 to 30.04.2019 till payment of the entire amount calculating from each day of debit from the account of the complainant.
3. OP1 is further directed to pay the damages of Rs.25,000/- to the complainant.
4. OP1 is also directed to pay a sum of Rs.10,000/- towards litigation expenses.
5. OP1 is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 27^TH DAY OF MAY 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Pass book related to Yadavanne branch

Ex P2: Copy of the pass book related to SBI, Nagarabhavi Branch

Ex. P3: Copy of police complaint

Ex P4: Copy of the complaint issued to Cyber crime

Ex P5: Copy of the complaint given to Police Commissioner, Bangalore.

Es P6: Copy of the Endorsement given by the sBI, Nagarabhavi Branch.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Smt.Rashmi R Naik, Branch Manager   - OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Original cheque issued by the complainant, which is a self cheque for Rs.25,00,059/- dated 11.03.2019 drawn on our branch along with application for NEFT for RTGS

Ex R2: Bank account statement

Ex R3: Letter written by the complainant to our branch dated 17.05.2019

Ex R4: Letter written by bank

Ex R5: Declaration by complaint form

Ex R6: Letter to ombudsmen with details of fraudulent transaction

Ex R7: Copy of the complaint given by complainant to the Cyber Crime Police

Ex R8: Copy of the FIR

Ex R9: SMS screen shot

Ex R10: SMS details to show that after each transaction SMS was sent to the registered mobile of the account holder

Ex R11: Email correspondence

MEMBER                 MEMBER                       PRESIDENT

HAV*