Chandigarh

StateCommission

A/95/2023

GURMUKH SINGH - Complainant(s)

Versus

CHIEF MANAGER, STATE BANK OF INDIA - Opp.Party(s)

NITIN GUPTA

16 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	95 of 2023
Date of Institution	:	04.05.2023
Date of Decision	:	16.02.2024

 

 

 

 

 

Gurmukh Singh S/o  Sardar Singh R/o #255, Sector 35-A, Chandigarh.

…..Appellant/Complainant.

Versus

The Chief Manager, State Bank of India, SCO No.2515-16, Sector 22-C, Chandigarh.

...Respondent/Opposite Party.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                MR. RAJESH K. ARYA, MEMBER

ARGUED BY :-  

Sh. Gurmukh Singh, appellant in person.

Sh. Nitin Gupta, Advocate for the respondent.

 

PER  RAJESH  K. ARYA, MEMBER

                    This appeal has been filed by the complainant Sh. Gurmukh Singh (appellant herein) against dismissal of his consumer complaint No.33 of 2021 by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission), vide order dated 16.03.2023.

2]                The case of the appellant before the District Commission was that he was maintaining the saving bank account with the opposite party (respondent herein) – Bank and also using the debit card. The amounts of ₹44,000/- and ₹6,500/- were withdrawn on 20.12.2016 and 21.12.2016 by some unknown persons from his saving bank account without his knowledge. He filed a complaint to the respondent – Bank, who assured regarding the investigation of the matter and recovery of amount. The appellant also approached to the DSP Cyber Investigation Cell to lodge the complaint but of no avail. The appellant also filed complaint with the Banking Lokpal, RBI, Chandigarh requesting to take action against the respondent. It was submitted that during ‘Note Bandi’ period, these type of foul withdrawal arose and this fact was published in ‘Dainik Bhasker’ and it was mentioned that the bank is liable to pay the amount. It has further been stated that the transaction took place on 22.12.2016 and the Reserve Bank of India (RBI) issued direction on 13.02.2017 and still, the respondent – Bank did not act on the said advice of RBI.

3]                On the other hand, the defence of the respondent – Bank was that the appellant cooked up a false story of withdrawal of amount of Rs.50,500/- from his bank account by the unknown person because the Bank transactions in question were made using the debit card details and OTP received on the registered mobile number, which could not be done by any other person except the appellant unless he shared his credentials with anyone.

4]                The District Commission dismissed the complaint of the appellant on the sole observation that in the entire record, there was not even a single document, which supported the appellant that he did not divulge information about his card or pin to someone.

5]                After hearing the appellant and the Counsel for the respondent and going through the material available on record and the written arguments of the parties very carefully, we are of the view that the District Commission has failed to appreciate the facts and documentary evidence on record and wrongly dismissed the complaint of the appellant, which deserves acceptance for the reasons to be recorded hereinafter. Bare perusal of Exhibit C-1, photocopy of passbook of the account of the appellant transpires that on 20.12.2016, amounts of ₹19,000/-, ₹15,000/-, ₹10,000/- & ₹4,000/- and on 21.12.2016, an amount of ₹2,500/- were withdrawn through POS (point of sale) transactions. The appellant immediately vide his letter dated 21.12.2016, Annexure    C-2, received by the respondent – Bank on 22.12.2016, wrote to the Chief Manager of the respondent – Bank that on getting the passbook updated, he came to know that somebody has withdrawn a sum of ₹50,500/- from his ATM a/c whereas the appellant did not withdraw any amount or used for purchasing the goods after 26.11.2016. Vide the said letter, the appellant requested the respondent – Bank to conduct enquiry to know who had done this illegal act. He also lodged a complaint, Annexure C-2, with the Chandigarh Police on 22.12.2016 regarding cheating and fraud from his account. Not only this, the appellant also gave a complaint to the Sr. Superintendent of Police, Police Headquarter, Chandigarh on 22.12.2016, Annexure C-3, requesting to take action against the unknown person for this illegal withdrawal from his account. The next document is copy of complaint dated 27.01.2017, Annexure     C-4, given by the appellant to the Deputy Superintendent of Policy, Cyber Investigation Cell, Sector 17, Chandigarh wherein the appellant stated that since his complaint was forwarded to Cyber Investigation Cell and marked to Head Constable S. Awtrar Singh, as such, he got his statement recorded but no action in the matter had been taken whereas in this type of cases, the action should be taken immediately so that the accused should be caught. Not only this, the appellant further mentioned in his complaint dated 27.12.2017, Annexure C-4, that since HC Awatar Singh had gone on leave for one month, then, what would happen to his complaint, either it would be kept pending for one month or given to other person for further investigation. The appellant requested the Cyber Investigation Cell to do the needful as early as possible as it had already delayed for more than one month. When nothing was done, the appellant gave his request dated 29.12.2016, Annexure C-5, to The Banking Lokpal, Reserve Bank of India, Chandigarh, to conduct enquiry and search who had withdrawn the amount from ATM without knowing the PIN number. Vide letter dated 09.01.2017, Annexure C-6, the Banking Ombudsman informed the appellant that it had registered the complaint and the matter has been taken up with the Bank, to which, the appellant replied vide letter dated 10.03.2017, Annexure C-7. In this letter, Annexure C-7, the appellant specifically wrote to the Banking Ombudsman that he did not know as to what action the Bank has taken and as per the article in the newspaper dated 10.02.2018, for online transactions fraud during Note Bandi, the Bank would be responsible to pay the amount fraudulently withdrawn by unknown person through ATM and if any loss was occurred by mistake of both i.e. customer and the bank, then the Bank would be responsible to pay full amount.  Lastly vide letter dated 13.02.2017, Annexure C-8, as per the information received from the respondent – Bank, the Banking Ombudsman informed the appellant that either the appellant had compromised his credentials to third person or had been negligent in ensuring secrecy and safety of his credential, which led to completion of transactions. It further states that the Bank had been advised to compensate, if possible, in terms of their compensation policy.

6]                However, in the instant case, till date, nothing has been paid by the respondent – Bank to the appellant on aforesaid pretext. Undisputedly, an amount of ₹50,500/- has been withdrawn from the account of the appellant. There is nothing on record by way of any documentary proof much less cogent and convincing evidence to suggest that the appellant shared his Debit Card/ATM or any password or PIN with the third person or the allege unknown person, who made the fraudulent withdrawals from the account of the appellant. It is only stated in the written statement that the alleged withdrawal transactions were successful by using the debit card details and OTP received by the appellant on his registered mobile number. However, no document has been brought on record by the respondent – Bank showing that OTPs were sent at the registered mobile number of the appellant. It is not the case of the appellant that he came to know about the fraudulent transactions, when he received OTPs on his registered mobile number rather he came to know only when he got his passbook updated. The appellant, in Para 11 of his rejoinder filed to the written statement, specifically stated that he did not receive any OTP on his mobile nor received any false call. In our view, had these transactions been done by the appellant by using his ATM/Debit Card, then he would not have been running from pillar to post by writing complaints, letters etc. to the respondent –Bank or to the Banking Ombudsman and also to the Policy Authorities and Cyber Investigation Cell. The observation of the District Commission that there was not even a single document, which supported the appellant that he did not divulge information about his card or pin to someone is totally against the documentary evidence brought on record by the appellant. Per contra, not even a single document has been placed before the District Commission by the respondent – Bank to prove its case and the District Commission without appreciating the facts and documentary evidence on record wrongly dismissed the complaint.

7]                The appellant has cited State Bank of India Vs. D.r J. C. S. Kataky, III (2018) CPJ 193 (NC), wherein while dismissing the revision petition filed by the Bank, Hon’ble National Consumer Disputes Redressal Commission, New Delhi upheld the findings of the District Forum and the State Commission that the petitioner Bank was deficient in not safeguarding the amount lying in the saving account from unauthorized withdrawals. Further reliance has been placed on Vidaywati Vs. State Bank of India & Ors., Revision Petition No.4868 of 2012 decided on 18.02.2015, wherein the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that since the money had been wrongly withdrawn by foul play from the account of the complainant as well as some other person, therefore, the Bank was liable to make good the loss.

8]                Given the overall set of facts and circumstances of the case, it becomes abundantly clear that in the present case, the transactions were made at POS terminals at different merchant establishments. Moreover, for these fraudulent withdrawals from the account of the appellant amounting to ₹50,500/-, for which no message was received by the complainant from the Bank. It was, therefore, the duty of the Bank to have looked into the matter to arrive at the truth of the same but nothing was done and the matter was closed saying that the appellant would have shared his ATM Card details or OTP etc. with the third party. The respondent – Bank cannot become an escape goat and shred of its liability. In his written arguments submitted before the District Commission below, the appellant has stated that as per Circular dated 28.02.2013 under head - Security and Risk Mitigation Measures for Electronic Payment Transactions, the Banks are duty bound to monitor all the transactions patters relating to credit and debit as well as alternate payment products/channels such as internet banking, RTGS, NEFT etc. from the accounts of their customers and they should carry out suitable investigation into all the alleged transactions. This view of our is fully supported by the judgment cited by the appellant in case titled State Bank of India Vs. D.r J. C. S. Kataky (supra). It is settled law by Hon’ble National Commission, New Delhi that in case of fraudulent transactions leading to withdraw of money from a person's bank account, the concerned bank shall be responsible for the loss, not the customer, if it is not proven that the fraudulent transaction had taken place due to account holder's fault, which in the instant case, the respondent- Bank has failed to establish.

9]                It may also be stated here that the Reserve Bank of India vide its Circular No.DBR. No.Leg.BC.78/09.07.005/2017-18 dated 06.07.2017 issued to All Scheduled Commercial Banks (including RRBS) and all Small Finance Banks and Payment Banks, on “Customer Protection – Limiting Liability of Customers in Unauthorised Electronic Banking Transactions”, in Para 6, under the heading “Limited Liability of customer – (a) Zero Liability of a Customer” has defined the Customer’s entitlement to zero liability in case of unauhorised transaction in following events:-

“Limited Liability of a Customer

1. Zero Liability of a Customer

6.      A Customers 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.”

10]              In the instant case also, since the appellant informed the respondent – Bank as regards the unauthorized transactions/ withdrawals through POS mode by some unknown person, within the stipulated period of three working days, therefore, he is very much covered under Clause 6(ii) of the notification dated 06.07.2017 aforesaid also and in such a situation and in view of aforesaid position, the respondent – Bank is liable to indemnify the appellant to the extent of loss of ₹50,500/- suffered by him on account of fraudulent online withdrawals besides paying adequate compensation for harassment and mental agony suffered by the appellant.

11]              For the reasons recorded above, the appeal is accepted and the impugned order is set aside. The respondent/opposite party – Bank is directed as under:-

1. to pay an amount of ₹50,500/- to the appellant/complainant within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount of ₹50,500/- shall carry interest @9% per annum (simple) from the date of this order till actual realization.
2. to pay an amount of ₹10,000/- as lump-sum compensation for mental agony and harassment and litigation costs, to the appellant/complainant within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount of ₹10,000/- shall carry interest @9% per annum (simple) from the date of this order till actual realization.

12]              Certified copy of this order be sent to the parties free of charge.

13]              File be consigned to the Record Room after completion.

Pronounced.

16.02.2024.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

 

(RAJESH K. ARYA)

MEMBER

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