Delhi

East Delhi

CC/295/2018

SURENDER KR. TYAGI - Complainant(s)

Versus

CORPORATION BANK - Opp.Party(s)

02 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR 

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.295/2018

 

	SURENDER KUMAR TYAGI FLAT No.J-1487, 7th AVENUE GAUR CITY 1, NEAR CHAR MURTI CHOWK GREATER NOIDA (WEST) PINCODE 201306
Versus
	THE BRANCH MANAGER, UNION BANK OF INDIA FLAT No.5 T0 9, ANSALS LAXMIDEEP, PLOT NO.9, LAXMI NAGAR DISTRICT CENTRE, DELHI – 110092 (As per amended Memo of Parties)	……OP1
	THE BRANCH MANAGER, PUNJAB AND SINDH BANK, SCINDIA HOUSE CONNAUGHT PLACE, NEW DELHI – 110001	……OP2
	THE BANKING OMBUDSMAN RESERVE BANK OF INDIA, CONNAUGHT PLACE, NEW DELHI – 110001 (Deleted vide Order dated 03.06.2022)	……OP3

 

Date of Institution: 13.09.2018

Judgment Reserved on: 17.05.2023

Judgment Passed on: 02.06.2023

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

 

Order By: Sh. Ravi Kumar (Member)

JUDGEMENT

 

The Complainant has alleged deficiency in service on the part of OPs in not refunding an amount of Rs.40,000/- deducted from his account by way of four ATM transactions i.e. 2 each on 17.03.2018 and 18.03.2018.

1. In his complaint the Complainant has stated that he is having Savings Bank Account No.520331004354332 with OP1 i.e. Corporation Bank (now merged with Union Bank of India and Complainant has filed amended Memo of Parties) at their branch Ansals Laxmideep Plot No.9, Laxmi Nagar District Centre, Delhi (East) and he has been issued with ATM Debit Card No.489021050613.  On 17.03.2018 he  tried to withdraw Rs.10,000/- from the ATM of Punjab and Sindh Bank, Connaught Place (OP2) at 01:30 PM and again at 01:32 PM (actually 01:27:28 PM and 01:28:21 PM) but no amount was disbursed both times however he received message of debit of Rs.10,000/- each at 14:13 PM and 14:25 PM.  Shocked by the same he immediately went to OP2 – Punjab & Sindh Bank and wanted to lodge complaint but OP2 refused to register his complaint and advised him that he may file complaint with OP1.
2. Thereafter Complainant went to OP1 same day and informed about the debits in his account and he was informed that complaint cannot be registered until 24 hrs however the amount will be re-credited in his account but no amount was re-credited to him.
3. On next day i.e. 18.03.2018 (Sunday) the Complainant was shocked to receive message informing that his account has been debited by two transactions of Rs.10,000/- each at around 11:00 AM whereas he did not operate the ATM on that day.
4. The Complainant registered the complaint on 19.03.2018 with OP1 informing about all these transactions and unauthorized withdrawal of Rs.40,000/- from his account by way of ATM transaction and again he was informed by OP1 that money will be credited back within 15 to 20 days however no credit was given to him and despite of his further follow up nothing happened and he lodged complaint before Banking Ombudsman RBI New Delhi which was registered on 29.05.2018 and later on he received reply that his complaint has been closed. 
5. Complainant has contended that he had not lost his ATM Card nor he ever revealed his Card Number to anyone and despite that he lost his hard earned money for no fault on his part. 
6. Complainant has made following prayer:

1. To pass an Order awarding compensation and damages to the tune of Rs.2,50,000/-.
2. To pass an Order for refund the amount of Rs.40,000/-
3. To pass an Order for paying Rs.1,50,000/- for mental agony caused to the Complainant
4. To direct the OPs to pay Rs.50,000/- as litigation cost.
5. Pass any further or other orders, directions as this Forum deems fit and proper in the facts and circumstances of this case. 

7. Notice was issued to the OPs.
8. OP1 i.e. Corporation Bank (now merged with Union Bank of India) filed its reply wherein it has annexed as Annexure-1 i.e. the details of the ATM transactions done in the account of the Complainant on 17.03.2018 and 18.03.2018.  In the same Annexure OP1 has also detailed Codes used in case of successful cash withdrawal which is ‘000’ as well as ‘Exceed Withdrawal Limit’ as ‘121’.  OP1 has stated that in all these transactions valid ATM PIN was used and it reveals that on 17.03.2018 Rs.10,000/- was withdrawn at Kotak Mahindra Bank ATM at 01:19:23 PM which was successful and cash was disbursed and thereafter Axis Bank ATM was used at 01:25:19 PM and this transaction was also successful.  Thereafter, on the same day further ATM transaction was done at Punjab and Sindh Bank ATM at 01:27:28 PM and 01:28:21 PM and both these transactions were declined on account of Code 121 which is ‘Exceed Withdrawal Limit’. 
9. OP1 has further stated that on 18.03.2018 two ATM transactions were done at ICICI Bank at 10:51:39 AM and 10:52:28 AM and both were successful by which Rs.10,000/- each was withdrawn.  Thereafter, another transaction was done at 10:53:22 AM which was declined under the Code 121 i.e. ‘Exceed Withdrawal Limit’.  Details of EJ Log, Switch Report and CCTV Images were examined by OP1.  As per them the CCTV footage of ICICI Bank was not clear but from the footage submitted by Kotak Mahindra Bank and Axis Bank it was observed that a person was withdrawing cash by entering PIN and counting the cash after disbursement.  OP1 has contended that  Complainant has not furnished these details to this Commission and has not come with clean hands.  The matter was taken up with their FTS Centre and FTS Centre had taken up the matter with three respective banks and as per their information the two transactions of Rs.10,000/- each done on 17.03.2018 and two transactions done on 18.03.2018 were successful.  All these details were furnished to Banking Ombudsman RBI also.  As the daily ATM withdrawal limit had already exceeded on 17.03.2018 at 01:25:19 PM therefore the further transactions done by the Complainant on the same day at Punjab and Sindh Bank ATM (OP2) at 01:27:28 PM and 01:28:21 PM were declined. 
10. OP1 has stated that these transactions were done by the Complainant in such a way so as to mislead the authorities/competent Court and the Bank, firstly by making balance enquiry, then withdrawing the cash till the day’s Cash Withdrawal Limit was exhausted and then making a third attempt when ATM did not dispense the cash.  This modus operandi was repeated on both the days i.e. 17.03.2018 and 18.03.2018 to make it appear as genuine transactions were done by some unknown person and not through the original ATM Card which is claimed to be in possession of the Complainant.  Whereas in reality, the EJ Logs/ Switch Reports and CCTV images /  footage as verified have established that the transactions were done by some person by using the genuine ATM Card by punching the PIN and then counting the cash etc.  The relationship between the person who withdrew the cash as revealed in CCTV footages / images with the Complainant only needs to be established. The transactions were done in a ‘secured environment’ (Card Present) with the use of PIN which is known only to the customer and therefore there is no deficiency in service on their part.
11. OP1 has enclosed following documents alongwith its reply:

• Bank's Switch Report showing the transactions done in respect of the ATM Card on 17.03.2018 and 18.03.2018 as Annexure -1. 
• Email sent to Kotak Mahindra Bank seeking the required documents/CCTV footage as Annexure -2. 
• Email sent to Axis Bank seeking the required documents/CCTV footage as Annexure -3. 
• Emails sent to ICICI Bank / follow-up made seeking the required documents / CCTV footage as Annexure -4. 
• Head Office letter FMC: CR 354/18:1401:2018-19 dated 08.01.2019 stating that "Transaction has taken place in secure environment (Card present) scenario with the use of PIN, which is known only to the customer as Annexure -5.
• EJ Log and Cash Balancing Report received from Axis Bank as Annexure -6. 
• News item downloaded from the website of Times of India elaborating a decided case in Bengaluru 4th Additional DCDRF as Annexure -7.

 

12. OP2 i.e. Punjab and Sindh Bank filed its reply by stating that on 17.03.2018, Complainant tried to withdraw by using their ATM Rs.10,000/- using Corporation Bank (OP1) ATM Debit Card (now Union Bank of India) at 01:30 PM and again at 01:32 PM but no amount was disbursed for the reason ‘Daily Withdrawal Limit reached’. 
13. OP3 which is the Office of Banking Ombudsman Reserve Bank of India has filed its reply through their Assistant General Manager and since they were deleted from the array of parties vide order dated 03.06.2022 therefore their reply is not considered in dealing with this complaint. Hence there are only two OPs i.e. Union Bank of India (OP1) and Punjab & Sindh Bank (OP2) as per Amended Memo of Parties.
14. Complainant has filed his Rejoinder to the reply of OP1 reiterating the contents of his complaint and has stated that he neither used ATM Card to enquire/withdraw cash nor visited Kotak Mahindra Bank ATM located at DGB Road, Paharganj & Axis Bank ATM located at Multani Dhanda IAD on 17.03.2018. He went to ATM of Punjab & Sindh Bank at IBD Scindhia House on 17.03.2017 at 01:27:28 PM and 01:28:21 PM. 
15. He received SMS from OP1 on 17.03.2017 at 14:13 PM and 14:25 PM i.e. almost an hour late about two debit of Rs.10,000/- each in his account whereas the wrongful ATM transactions had already been made at 01:19 PM and 01:25 PM due to technical default on the part of OP1. Had he received these SMS in time then he would not have gone for ATM withdrawal and rather would have lodged complaint with OP1.
16. Details at Serial No.4 of Annexure 1 of OP1 reply is showing the transaction time of 01:28:17 PM Axis Bank ATM located at Multani Dhanda IAD (ID:BPRH1007) and Serial No.5 is showing the transaction time of 01:27:28 PM at Punjab and Sindh Bank ATM located at IBD Scindia House (ID: BD048401).  By taking the timings and place of transactions into consideration, one can easily make out that there must have been a technical error or defect in OP1 servers or the ATM transactions have been fabricated by OP1 to get rid of their liability towards the Complainant.
17. Further, OP1 refused to lodge complaint on 17.03.2018 before 24 hrs of the incident.  Next day i.e. 18.03.2018 was Sunday, so the Complainant filed the complaint with the Branch Manager of OP1 on 19.03.2018.  OP1 after a gap of 9 months credited Rs.40,000/- in the Complainant’s bank account Number 520331004354332 however on 14.01.2019 the said amount was debited from his account. 
18. Complainant has also filed his Rejoinder to the reply of OP2 reiterating the contents of his complaint. 
19. Complainant has filed his evidence by way of affidavit citing the following documents as exhibits:

• Copy of Bank Passbook as Annexure – 1. 
• Copy of Screen Shot of Message dated 17.03.2018 as Annexure – 2.
•  Copy of Screen Shot of Message dated 18.03.2018 as Annexure – 3.
• Copy of his complaint dated 19.03.2018 as Annexure – 4.
• Copy of his online complaint dated 05.05.2018 as Annexure – 5.
•  Copy of registered online complaint dated 29.05.2018 as Annexure –6.
• Copy of e-mails as Annexure –7.
• Copy of attachment to the email dated 13.08.2018 as Annexure – 8.    
• Copy of Police Complaint dated 05.05.2018 as Annexure – 9.
• Copy of Letter dated 18.05.2018 as Annexure -10.
• Copy of legal notice dated 10.08.2018 as Annexure – 11.
• Copy of Passbook showing transaction dated 15.08.2018 as Annexure-A.
• Copy of Passbook showing transaction dated 14.01.2019 as Annexure-B.
• Copy of RTI application as Annexure –C.

 

Though Complainant has used the word Amended Complaint in his evidence by way of affidavit while marking the exhibits however there is no amended complaint filed by the Complainant and he has only filed Amended Memo of Parties on 04.08.2022 which is on record. 

OP1 and OP2 have not filed their evidence and they were proceeded Ex-parte on 17.11.2022. 

20. This Commission has heard the arguments of the Complainant and has perused the documents on record. No arguments were put forth by OP1 and OP2 in their defense.
21. It is not in dispute that Complainant is customer of OP1 having account number 520331004354332 maintained at Laxmi Nagar, District Centre Branch (Annexure-1) and he was issued with ATM Card no. 489021050613.
22. The case of the Complainant in nutshell is that when he went to ATM of OP2 on 17.03.2018 to withdraw amount  of Rs.10,000/- then despite of two attempts at 01:30 PM and 01:32 PM (factually 01:27:28 PM and 01:28:21 PM as per Annexure 1 filed by OP1),  no cash was dispensed for the reason ‘Daily Withdrawal Limit reached’. At around 02:13 PM he received SMS message that his account has been debited by Rs.10,000/- and he received another SMS message at 02:25 PM informing about the debit of another Rs.10,000/- from his account.  Both these SMS were sent to the Complainant by OP1. When he made complaint to OP1 on 17.03.2018, with whom he is having the Bank Account in which these ATM debits were made, his complaint was not registered and he was asked to wait for 24 hours.
23. However again on the very next day i.e. 18.03.2018 (Sunday) Complainant received further 2 SMS from OP1 about debit of Rs.10,000/- each by way of ATM withdrawal. Since 18.03.2018 was Sunday. Complainant rushed to OP1 on 19.03.2018 and this time his complaint was lodged.
24.   Thus on 17.03.2018 and 18.03.2018 there was a withdrawal of total Rs.40,000/- from the account of the Complainant by way of 4 ATM transaction which according to him were not done by him.
25. The OP1 has filed its reply and has annexed as Annexure 1 the details of all four transactions. As per the same the Complainant had used ATM of OP2 i.e. Punjab & Sindh Bank on 17.03.2018 at 01:27:28 PM and 01:28:21 PM which were declined on the ground ‘Exceed withdrawal limit’.  Thus, before the Complainant used the ATM of OP2 at the above said mentioned time, the ATM daily withdrawal limit of Rs.20,000/- was already exhausted.  From the transaction details filed by OP1 (Annexure1) there is ATM withdrawal in the account of the Complainant at Kotak Mahindra Bank ATM, Paharganj, Delhi at 01:19:23 PM and at 01:25:19 PM by using ATM of Axis Bank situated at Multani Dhanda IAD Delhi whereas the distance between Paharganj & Multani Dhanda IAD Delhi and Cannaught Place where ATM of OP2 – Punjab & Sindh Bank is situated which was used at 01:27:28 PM and 01:28:21 PM by the Complainant is such that it cannot be covered in less than 02 minute. Further, same ATM Card was still in use at Axis Bank ATM at Multani Dhanda, Delhi at 01:28:17 PM and attempt was made to withdraw Rs.10,000/- which was declined for reason ‘exceed withdrawal limit’ under Code 121 whereas Complainant was using his ATM Card at Scindia House at 01:27:28 PM as well as at 01:28:21 PM.  Was this possible?  Thus by the same ATM Card details transactions were done at two different places in a very small gap of time i.e. less than 02 minutes and also simultaneously which leaves no room for doubt that someone else was using cloned ATM Card of the Complainant at the same time.
26. Again on 18.03.2018 ATM of ICICI Bank, Rajguru Road, Delhi was used at 10:51:39 AM and 10:52:21 AM when Rs.10,000/- each were withdrawn whereas the residence of the Complainant is at Connaught Place, H-Block, New Delhi.  Here also the modus operandi was same and after withdrawing the amount further at 10:53:22 AM, third attempt was made to withdraw another Rs.10,000/- however the same was declined under the Code 121 i.e. ‘exceed withdrawal limit’. 
27. From the facts narrated above which are submitted by OP1, it can be easily observed that on 17.03.2018 the ATM transactions were done in the account of the Complainant at 2 different places in such a small gap of time and also simultaneously and it was not possible for the Complainant to be physically present at both the places at the same time.  Thus, the contention of OP1 that Complainant has not come to this Forum with clean hands is blatantly incorrect and same is vice-versa. 
28. It is also pertinent to note that OP1 on 15.12.2018 credited the amount of Rs.40,000/- in the account of the Complainant out of these disputed ATM transactions however OP1 thereafter withdrew the same by debiting Rs.40,000/- (Annexure-B).  No reason has been explained by OP1 nor they have filed their evidence in their defense. 
29. OP1 has not filed their evidence and Complainant has filed his evidence in support of his complaint and therefore the complaint goes unrebutted as regards evidence part is concerned and rather Annexure 1 filed by OP1 alongwith their Reply reveals the true chain of facts. The significance of time factor involved as per Annexure 1 of the reply of the OP gives clearly establishes that the ATM Card of the Complainant was cloned and the same was used first to know the balance in the account and then to exhaust the daily limit of ATM Cash withdrawal of Rs.20,000/- each day.  When the Complainant went to withdraw money from his account using the ATM of OP2 the same was declined under the Code Number 121 i.e. ‘Exceed withdrawal limit’. 
30. When the Complainant made complaint to OP1 on the same day i.e. 17.03.2018 then his account should have been ‘Debit Freezed’ immediately by OP1 as per RBI guidelines, however the same was not done and the Complainant suffered further monetary loss of Rs.20,000/- by way of two ATM withdrawals on 18.03.2018.
31. Thus there was clear breach of technical security system of OP1 whereby the fraudster was able to clone the ATM Card of the Complainant which resulted in these 4 unauthorized transactions in the account of the Complainant.  It is the primary responsibility of any financial institution (including OP1) to have a robust technical  security system protecting the account of their customers who deposit money in their accounts having faith that their money is in safe hands. One can come across many advertisements of Banks in News-paper and Electronic Media calling upon to make use of more Digital Banking viz. On-line transactions,UPI,Paytm, Mobile Banking etc. Technical progress is always desired in the Banks but with caution and it is their duty to ensure that there is no breach of their technical security system.  
32. The stand of the OP1 that the disputed transactions were done in a secured environment (Card present) scenario with the use of PIN  does not hold water when it is apparent that Complainant cannot be present at the same point of time at two ATMs situated at  substantial distance which distance cannot be covered in less than 02 minutes and same ATM Card was used simultaneously at two places which is impossible.  Hence, the disputed transactions were not done in ‘secured environment’ as the ATM Card of the Complainant was cloned which was used to make disputed transaction.
33. It is also stated by OP1 that in the CCTV footage submitted by Kotak Mahindra Bank and Axis Bank ATM it was observed that a person was withdrawing cash by entering PIN and counting the cash after disbursement. However, it is not the contention of OP1 that in the CCTV Footage the person seen was Complainant and this also re-establishes that the transactions were done by way of cloning of the ATM Card by some fraudster.
34. This Commission observes that when all these transaction details were available with OP1 which have also been filed by way of Annexure 1 to their Reply, then instead of carefully examining the same OP1 made the Complainant run from pillar to post for no fault of him. There is deficiency in service writ large on the part of OP1 in the case.
35. While referring to Annexure B filed by the Complainant it is observed that OP1 credited the amount of Rs.40,000/- (Rs.10,000/- each) in the account of the Complainant on 15.12.2018 but withdrew the same on 14.01.2018. No explanation has been given by OP1 for the same.
36. As regards role of OP2 - Punjab & Sindh Bank is concerned, this Commission finds that there is no deficiency in service on their part as Scindhia House, Connaught Place New Delhi ATM of OP2 rightly declined the transaction done by the Complainant at 01:27:28 PM and 01:28:21 PM on 17.03.2018 since the daily limit of ATM withdrawal in the account of the Complainant had already exhausted before these transaction were done.
37. For the reasons stated supra this Commission holds OP1- now Union Bank of India liable for deficiency in service and orders as follows:

• OP1 to refund Rs.40,000/- to the Complainant along with interest @ 7% p.a. from 18.03.2018.
• OP1 to pay Rs.10,000/- to the Complainant towards mental agony. 
• OP1 to pay Rs.7,500/- to the Complainant towards legal expenses. 

This order shall be complied by OP1 within 30 days from the date of receipt of the Order failing which OP1 shall pay interest @ 9% p.a. on all the above amounts till the date of realization.

3. opy of the Order be supplied / sent to the parties free of cost as per Rules.

File be consigned to Record Room.

Announced on 02.06.2023