ORDER

SMT.SHARAVATHI S.M.  MEMBER

1.     This is the Complaint filed by the Complainant under section 35 of Consumer Protection Act 2019, against the Opposite party(herein referred in short as OP)alleging the deficiency in service and direct to OP to refund a sum of Rs.48,100.19 being the amount taken out by some unknown person from her bank account standing with the OP along with interest at 18% per annum and for Rs.20,000/- towards damages for mental agony and physical sufferance along with cost of the litigation and for other reliefs as the commission deems fit.

2.     The brief facts of the complaint are that: she is an S.B. account holder with OP bearing No.141601111000503 for the last 10 years, she is also having a debit card issued by the OP bearing  No.1800-425-5885. She got her S.B. passbook entered on 14/10/2019 and was shocked to see that a sum of Rs.48,100.19 /- was withdrawn illegally and without her knowledge from 11/09/2019.  She has produced the bank pass book details and debit card details. After the knowledge of the said unauthorized transaction immediately she brought the same to the notice of the OP who advised her to lodge a complaint to the police. She also gave a letter to the OP on 14/10/2019 to compensate the losses and also a complaint to the police on 16/10/2019 (Complaint No.8872/2019) Who registered a case and gave an acknowledgment. Inspite of requesting the OP to set right the matter and pay the amount which was drawn illegally, from her account, OP has not taken any care and responsibility to do so. The apathetic and deceitful attitude of the OP and indifference attitude, has added to her misery and plight. After the Complainant filed the Complaint under Reference No. 201920002009897 on 09/12/2019 with the banking Ombudsman through online portal of the Reserve Bank of India. The Ombudsman passed an arbitrary award dated 26^th June 2010 after 6^th months of filing the Complaint. Hence, there is deficiency in service on the part of OP and hence the complaint.

3.     Upon the service of notice, OP appeared before the Commission and filed its version contending that there is no deficiency in service or negligence on its part. The complaint filed is on false, frivolous and vexatious grounds and with a mala fide intention to enrich herself. OP has admitted the existence of the account of the complainant with them and also the receipt of the letter dated 14/10/2019 and requisition of the debit card from the complainant. The complainant has not acted like a reasonable person under the circumstances. There is delay in informing the alleged fraudulent transaction and lodging of the complaint to the police. There is no deficiency of service on their part and they are not liable to pay the amount claimed by the complainant. The claim is unjust and hence liable to be dismissed under Section 26 of the Consumer Protection Act.

4.     In order to prove the case, Complainant and OP have 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 Party?

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

5.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

POINT No.1:-

6.     The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. OP examined its branch manager who filed affidavit evidence by reiterating contentions of the version along with copy of the statement in respect of the transactions of the complainant is S.B. Account 141601111000503. The admitted facts are that, complainant is a account holder and customer of the OP having her S.B. Account bearing No.141601111000503.

7.     It is the specific case of the Complainant that on 11/09/2019 a sum of Rs.48,100.19/- has been drawn clandestinely without her knowledge and permission by third party with whom she has no relation and she came to know only on 14/10/2019 when she got her passbook duly entered in respect of the transactions and immediately she brought the same to the OP who directed her to lodge a complaint. Hence she made a complaint to the OP on 14/10/2019 and also to the police on 16/10/2019.

8.     In spite of the complaint, OP did not take any action to trace the person who has withdrawn the money from her account and did not remit the same to her account for the act of which, she is made to suffer financially. She has produced copy of the accounts transaction in respect of the said S.B. Account. Copy of the Rupay card, copy of the complaint given to the OP, and acknowledgement of having given complaint to the jurisdictional police. OP after receiving the written complaint from the account holder has hot listed the Rupay card and destroyed the same on 14/10/2019. Inspite of it, according to the complainant, the bank officials have not remitted the amount which has been taken-out from her account by unknown persons which according to her is deficiency in service on behalf of OP.

9.     It is the specific case of the OP in the version as well as in the evidence that, there is no deficiency in service on its behalf and that, after the complainant lodged by the complaint to the police, police enquired with it and it has supplied the account details for further investigation. There is delay in  informing the alleged fraudulent transaction and in filing the complaint. According to it, the complaint deserves to be dismissed.

10.   On perusing the account statement filed and relied on both parties to the proceedings, from 11/09/2019 onwards all of the unauthorized transactions have occurred continuously within a span of thirteen minutes between 05.16 pm to 05.29 pm using her debit card. The 3^rd party has drawn amount in Delhi for a sum of Rs.10,105/-, and at Gurgaon a sum of Rs,9,999/-, Rs.9,999, Rs.9,999/-, Rs.4,999/-, Rs.2,999/- and in all six unauthorized transactions, the complainant neither she received any password nor shared the same to anybody.

11.   It is not the case of OP that, complainant has misused the debit card given to her on her own or she has shared the same with some other persons to draw the money. It is also not the case of the OP that, the complainant has an internet banking connected with her S.B. Account. Further it is also not the case of the OP that the complainant though internet has transferred the amount as stated from her bank account though the gateway to meet her requirement. It is the bounden duty of the OP to have a vigil on the withdrawals of the money from the accounts of its customers. Though one can understand the gamut of the accounts and the transaction that takes place in the banking institutions, onus of the OP to keep the vigil of the transactions and to protect the money of its customers cannot lost site off. It is its utmost duty to protect its customer from the hands of the persons who wants to cheat innocent account holders by practicing Cyber Crimes and cheating.

12.   Bank is a trust for the money deposited with it by the customers. On the basics of the trust only, the banking industry is existing and doing its business. When the trust is lost for any reasons, the banking industry cannot thrive and survive. When the complainant has brought to the notice of the fraud and illegal withdrawal of money from her account, OP has not taken any action in lodging its complaint with the police and assisting the police in their investigation to detect the Cyber Crime. More responsibility is casted on the bank in this direction which the OP has failed miserably to take it upon.

13.   complainant has relied on the notification issued by the Reserve Bank of India headed as: Customer Protection- limiting liability of Consumer in Unauthorized Electronic Banking Transaction-July 2017.

 “limited Liability of a customer

1. Zero liability of a Customer

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

( i)  contributory fraud/negligence/deficiency on the part of the bank( irrespective of whether or not the transaction is reported by the customer)

(ii) 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.

2. 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 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 table1,whichever is lower. Table 1

 Maximum Liability of a Customer under paragraph 7 (ii)

Type of Account                                                               

 Maximum Liability (Rs) BSBD Accounts  5,000

All other SB Accounts Pre-paid payment Instruments and Gift cards

Current accounts/cash credit/overdraft Accounts of                                     10,000

Individuals with annual average balance (during 365days

Preceding the incidence of fraud)/limit up to Rs.25 lakh

Credit cards with limit up to Rs.5lakh

All other Current/cash Credit/Overdraft Accounts                                          25,000

Credit cards with limit above Rs. 5 lakh

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.

14.   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                                 customer’s liability    

Transaction from the date of receiving

The communication 

Within 3 working days Zero liability

Within 4 to 7 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

15.   On being notified by the customer, the bank shall credit (shadow reversed) 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.

16.   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.”

17.   When this is taken into consideration, the liability of the complainant is zero as the OP has failed to prove that the withdrawal of the money is contributory fraud on the part of the complainant. Whereas, it is the fraudulent transaction and the third party breach. The deficiency lies not with the bank or with the customer.

18.   This case falls in between 6(I) AND (II). It has been held in the Revision Petition No. 3073/2016 of NDFRC NEW DELHI between S.B.I Jorhat Branch V/S Dr. JCS Katiky that “it is sufficient to establish once the complainant was made citing specific incident of authorized withdrawal. It is the duty of the bank to have carried-out the necessary verification in the matter, rather than washing their hands off from the whole episode, evidently there has been deficiency in service on the part of the bank, viz-a-viz the consumer complaint. It is held therefore that the Consumer FORA below have made a correct appreciation of the fact and circumstances on record which preceding the complaint in favour of the complainant. Ultimately, FORA ordered the OP bank to make the payment of the amount in question to the complainant within four weeks. When this decision is taken into consideration, and in view of the notifications issued by the RBI, and since it is a clear case of negligence and inaction of the OP bank, we are of the opinion that, the complainant has proved deficiency in service and hence we answer POINT NO.1 IN THE AFFIRNATIVE.

POINT NO 2:-

19. Having held point No.1 in the affirmative, it was the bounden duty to reimburse the amount to the complainant’s bank account which was clandestinely and fraudulently withdrawn from the account of the complainant by the third party with in 10 workings days from the date of notification by the customer, without waiting for settlement of insurance claim. Bank may also at their discretion to waive off customer’s liability in case of unauthorized electronic banking transaction even in case of customer negligence and it should resolve the matter within 90 days from the date of receipt of the complaint and the customer is to be compensated as per the provisions of paragraph No 6 to 9 of the above notification. It is also mentioned in the same notification at Clause 12:-

“BURDEN OF PROOF:

8. The burden of providing customer liability in case of unauthorized electronics banking transaction shall lie on the bank”.

20.   When this is taken into consideration the bank has not at all taken any responsibility in discharging its liability. In view of this complainant is entitle to a sum of Rs.48,100.19/- along with saving Bank interest till the said amount is credited to the S.B. Account of the complainant. The complainant has also sought for Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of litigation expenses. Hence we answer POINT NO.2 IS PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. The OP i.e. Bank of Boroda (erstwhile Vijaya Bank) Represented by its Authorized Signatory is hereby directed to pay a sum of Rs.48,100.19/- along with Saving Bank interest on the said sum till the said amount is credited to the S.B. Account of the Complainant.
3. Further OP is hereby directed to pay Rs.5,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses.
4. The OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.        

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 destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 24^th day of February 2021)

MEMBER                        PRESIDENT

ANNEXURES

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

CW-1: Ms.Varsha Ganesh - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the customer protection limited liability details issued by RBI

Ex P2: Copy of unauthorized electronic banking transaction, customer protection policy issued by OP

Ex P3: Copy of the complaint given by me to the bank

Ex P4: Copy of the pas book with account details

Ex P5: Copy of the debit card

Ex P6: Copy of the log sheet

Ex P7: Copy of the FIR

Ex P8: Copy of the letter dated 21.11.2019

Ex P9: Copy of the complaint to RBI Ombudsmen

Ex P10: Copy of the email correspondences

Ex P11: Copy of the Indemnity letter given by OP.

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

RW-1 : Sri Abhishek Assistant Manager of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Certificate issued by the OP bank

Ex R2: Copy of the Statement of account.

Ex R3: Copy of mobile data base.

MEMBER                        PRESIDENT

RAK*