Delhi

East Delhi

CC/163/2019

CHATAR SINGH - Complainant(s)

Versus

P.N.B. - Opp.Party(s)

26 Apr 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.163/2019

 

	CHATAR SINGH S/O LATE SHRI FAKIRA SINGH R/O C-20, KONDLI, DELHI – 110096	….Complainant
Versus
	PUNJAB NATIONAL BANK THROUGH MANAGER CSC-3, DDA MARKET, MAYUR VIHAR, PHASE – III DELHI - 110096	……OP

 

                                                         

Date of Institution: 14.05.2019

Judgment Reserved on: 06.04.2023

Judgment Passed on: 26.04.2023

                  

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

 

Order By: Sh. Ravi Kumar (Member)

 

JUDGEMENT

 

1. The Complainant, a senior citizen, has alleged deficiency in service on the part of OP in not reimbursing the amount that was withdrawn from his Pension Account unathorizedly by way of transfer as well as ATM withdrawal. 
2. The Complainant in his complaint has stated that on 02.08.2018 he was having Rs.74,471/- balance in his Pension Account, however during the intervening night of 3^rd and 4^th August, 2018 a sum of Rs.74,000/- was debited details of which are as under:

				Details of Transaction
1	Rs.25000/-	03.08.2018	23:52 HRS	Transferred to Bank A/c No.1538000101574490 Belonging to one Rajiv Kumar Saxena
2	Rs15000/-	03.08.2018	23:53 HRS	Withdrawn from ATM
3	Rs.10000/-	03.08.2018	23:55 HRS	Withdrawn from ATM
			00:05 HRS	Withdrawn from ATM
			00:06 HRS	Withdrawn from ATM

 

3. He has stated that he had not authorized these transactions as the Debit Card was in his possession and he had never disclosed ATM number, PIN or OTP to any person. The unauthorized ATM transactions were done at Connaught Place ATM of OP Bank.  He immediately got the Debit Card blocked. 
4. On 06.08.2018 (Monday) he lodged Police Complaint and he also wrote a letter to the OP and sought refund of the said amount.  However, no steps were taken by the OP.  Since, unauthorized  transfer transaction of Rs.25,000/- was done and the account number 1538000101574490 belonging to one Shri Rajiv Kumar Saxena was credited, he requested the OP to put hold in the said account and remit the amount to his account vide letter dated 30.11.2018. 
5. The Complainant has made following prayers:   

• Refund sum of Rs.74,000/- with interest @ 18% from 04.08.2018  till actual payment. 
• Rs.50,000/- as compensation for tension, harassment, agony and pain suffered by the Complainants due to deficient service of the OPs. 
• Rs.20,000/- as costs of present litigation. 
• Any other relief this Forum may deem fit be granted in favour of the Complainant.

6. Notice was issued to the OP and it has filed its reply stating that Password was available with the Complainant and ATM transaction cannot be done without the same. The amount so transferred in the account of Rajiv Kumar Saxena i.e. account number 1538000101574490 was immediately withdrawn on the same day.  The OP Bank on 28.12.2018 had submitted Switch Report, EJ Log and no excess cash was found.  The Bank also submitted CCTV footage and SMS log book and NPCI Report on Card cloning dated 29.01.2019 and all these showed that on intervening night of 3^rd and 4^th August, 2018 the card of the Complainant was used 15 times between 23:51 hrs. to 00:06 hrs.  and SMS were delivered to the Complainant and NPCI also submitted that they will update once they identify any suspected compromise point through their CCP alerts.  No clarification was received from NPCI on card cloning.  The OP Bank had debit freezed the account of Rajiv Kumar Saxena on receipt of the complaint.  The Complainant had also filed complaint before Banking Ombudsman which was closed on the account of above said reasons.  It is denied that card of the Complainant was cloned and it is submitted that the OP had provided secured service to the Complainant and therefore OP is not liable for refunding the amount to the Complainant. 
7. The Complainant has filed his Rejoinder and has reiterated the contents of his complaint and has also relied upon the RBI Circular No.RBI/2017-18/15 DBR No.Leg.BC.78.07.005/2017-18 dated 06.07.2017 wherein OP is obliged to reimburse and compensate the Complainant in case of unauthorized transactions.  He had reported these fraudulent transactions on the very next day to the OP Bank and he has also lodged FIR with the Police.  The Card cloning is a method widely used by the miscreants to defraud bank customers and they install skimming machines in the ATM to copy the Card Data and thereafter withdraw money from the bank account of gullible customers using the same data.  The CCTV footage clearly shows that someone other than the Complainant was doing fraudulent transactions.  The report of NPCI is not filed by the OP bank and report of NPCI is not the sole parameter of determining that the transaction was unauthorized and fraudulent or not. 
8. The Complainant has filed his evidence by way of affidavit wherein he has marked the following exhibits:

• Copy of front page of Pass Book as Annexure C-1. 
• Copy of RuPay Debit Card as Annexure C-2. 
• Copy of screenshots of debit SMS as Annexure C-3.
• Copy of complaint registered at Ghazipur P.S. as D.D. No.53B is as Annexure C-4.
• Copy of letter dated 06.08.2018 as Annexure C-5. 
• Copy of complaint as Annexure C-6.
• Copy of FIR as Annexure C-7. 
• Copyof letter dated 29.11.2018 as Annexure C-8.
• Copy of letter dated 30.11.2018 as Annexure C-9.
• Copy of Order dated 05.03.2019 as Annexure C-10.
• Copy of RBI Circular dated 06.07.2017 as Annexure C-11.
• Copy of excerpts of Indian Express Newspaper, Delhi NCR edition reporting such incident on May 14, 2019 as Annexure C-12.

9. OP has also filed its evidence by way of affidavit wherein they have marked the following documents:

• Copy of EJ Log, Switch Report and NPCI Report as Exhibit -RW1/A.
• Written Statement are exhibited as Exhibit -RW1/B.

10. This Commission has heard the arguments of both sides and has perused the documents on record.

The issue in the complaint is with regard to whether the disputed transactions which were done on the intervening night of 3^rd and 4^th August, 2018 i.e. between 23:52 PM and 06:12 AM were authorized or not.

Complainant is a Senior Citizen and was having his Pension Account in the OP Bank which was operated by him. The Complainant has stated that as on 02.08.2016 he had balance of Rs.74,471/- in his account and between 23:51 PM and 00:06 AM by way of 01 transfer entry and 04 ATM withdrawals a total sum of Rs.74,000/- was withdrawn from his account.

He made complaint to OP Bank on 06.08.2018 (Monday) and he also filed complaint before Banking Ombudsman RBI which was closed vide Order dated 05.03.2019 finding no deficiency on the part of OP Bank based on observation that as per Switch Report & EJ Log the disputed transaction were successful. EJ log showed that the card of the Complainant was used 15 times between 23:51 pm and 00:06 am on the intervening night of 3^rd and 4^th August, 2018.  It is also observed in the Ombudsman Order that no clarification was received from NPCI on card cloning.  The CCTV footage revealed that a young person (other than the Complainant) was seen withdrawing the money.  Exhibit RW1/A filed by the OP does not come strongly in their defense in view of the fact that the transactions were unauthorized.  The Reports of the OP are system generated and as the debit card was cloned as discussed above, these reports are expected to be on the same lines since after cloning the fraudsters were able to breach the security system of the OP Bank.    

The Complainant a senior citizen after retirement is expected to have peaceful life and he need not remain awake late night to keep a watch on his Bank account.  The transactions timing (mid-night) was such that any person of that age is likely to be taking rest and may not be awake. 

The nature of transactions done in the Pension Account of the Complainant also reveals that the same were done outside the normal course as the person who did these transactions was aware about the balance and he was able to withdraw/transfer the amount leaving only Rs.471/- out of Rs.74471/-.  The Complainant has also stated that these transactions were done from ATM of OP bank situated in Connaught Place, New Delhi. 

It is also the stand of the OP that for these transactions there were 15 attempts to complete out of which 05 attempts were successful.  Even if it is believed that SMS of debit were sent to the Complainant then also it is hard to accept that a senior citizen would be keeping himself awake late night waiting to receive SMS relating to his Bank Account.

As a bank it was OP’s foremost duty to keep the system in place so that the card of the Complainant remained un-cloned. 

The modus operandi suggested that Debit Card of the Complainant was cloned.  As per the RBI guidelines the OP has to put in place system and procedure for electronic banking transaction and keep dynamic fraud detection and prevention mechanism.  RBI also mandated ‘Zero Liability’ towards the unauthorized transactions and Banks are required to remit the transacted amount to the customers.

From the evidence available on the record and the facts of the case it is not difficult to comprehend the situation when these transactions were done by the person.  It is also observed in the Order of the Banking Ombudsman RBI that in the CCTV footage a young person (other than the Complainant) was seen withdrawing the money.  This observation itself speaks about the element of fraud committed by the fraudster by cloning the Debit Card of the Complainant and it cannot be ruled out that it was a case of breach of security system of the OP Bank and therefore it stands proved that these transactions were unauthorized and were not done by the Complainant. 

The Complainant upon noticing these transactions lodged complaint before the OP Bank on 06.08.2018 (Monday) so there was no delay on the part of the Complainant to lodge his complaint in terms of RBI guidelines No.RBI/2017-18/15 DBR No. Leg BC.78/09.07.005/2017-18 dated 06.07.2017 (Annexure -11/1) which states about the Zero Liability of the Customer as follows:

Para 6 (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 unauthorized transaction.’

 

As the Complainant had filed complaint on 06.08.2018 (Monday) with the OP Bank and incident took place in intervening night of 3^rd and 4^th August, 2018, which was within three working days then as per the said RBI Circular the Complainant does not have liability as it has been established from the discussions in the above paras that the transactions in question were unauthorized. 

Keeping in view the above this Commission holds OP liable for deficiency in service and orders as follows:

• OP to pay Rs.74000/- with interest @ 7% p.a. to the Complainant from 04.08.2018.
• OP to pay Rs.10,000/- towards mental harassment and agony to the Complainant.
• OP to pay Rs.5,000/- to the Complainant towards legal expenses.

 

This Order shall be complied within 30 days from the date of receipt of the order by the OP failing which OP shall pay interest @ 9% p.a. to the Complainant on all the above said amounts including of compensation and legal expenses.    

Copy of the order be supplied / sent to the parties free of cost as per Rules.

File be consigned to Record Room.

Announced on 26^th April 2023.