Delhi

East Delhi

CC/79/2022

SUMAN GOYAL - Complainant(s)

Versus

STATE BANK OF INDIA - Opp.Party(s)

AMIT GOYAL

12 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. 79/2022

 

	Mrs. SUMAN GOYAL, W/o SH. V.K. GOYAL, R/o B-27, VIDISHA APARTMENT, I.P. EXTENSION, PATPARGANJ, N. DELHI-110092.	….Complainant
Versus
	STATE BANK OF INDIA THROUGH ITS BRANCH MANAGER, OFFICE ADDRESS, BRANCH CODE 8524, MASOOD PUR, VASANT KUNJ, NEW DELHI-110070	……OP

 

Date of Institution: 09.02.2022

Judgment Reserved on: 10.04.2023

Judgment Passed on: 13.04.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Judgment By: Sh. S.S. Malhotra (President)

 

 

JUDGMENT

 

1. By this Judgment Commission shall dispose off the complaint of the complainant w.r.t. deficiency in not reimbursing the amount of Rs. 40,000/- as illegally & fraudulently withdrawn from the bank account of the complainant through ATM by someone.
2. Brief facts stated by the complainant in the complaint are that she is a senior citizen and is maintaining her bank account with OP for last 16 years or so and on 28.07.2018 four fraudulent & unauthorized transactions of Rs. 10,000 each, totaling Rs. 40,000/- were carried out from her bank account for which complainant lodged the complaint with the bank through customer care helpline vide ticket no.4622860374, 4622860554, 4622860290 and even Police Complaint Vide No. DD24B dated 02.08.2018 was lodged & a copy thereof was given to the Branch Manager of OP and all the SOPs were followed by the complainant. A written complaint was also given to Branch Manager but despite constantly following up, the amount was not refunded in the complainant’s account and as such complainant lodged a complaint with Centralized Public Grievance Redressal Monitoring System for delay in redressing the complaint but of no result & ultimately claim was rejected and aggrieved from that, complainant approached and appealed to Directorate of Public & Grievances and after the delay of almost 2 years even the same was rejected for non-availability of CCTV footage.  
3. On 06.04.2021 the complaint was lodged with Department of Financial Services and after certain communications and then citing circular for delay in lodging the complaint together with ATR but the same was also dismissed and ultimately complainant sent legal notice on 15.01.2022 which was also not complied with and as such she has filed the present complaint with the prayer that OP be directed to refund Rs. 40,000/- & to pay compensation of Rs. 1,00,000/- and legal expenses of Rs. 20,000/-. The connecting documents have also been filed by the complainant.
4. The OP has filed its reply taking preliminary objections that complaint is not maintainable and is liable to be dismissed. The Complainant has not come to court with clean hands, complaint has abused the process of law, the complaint is filed belated & is barred by limitation, no SOPs were followed, no cause of action in favour of the complainant has arisen, the complainant is trying to gain illegal benefit for the alleged transactions, contents of complaint are vague false, frivolous and imaginary, the complainant is trying to take benefit of her own wrongs and complaint is bad for mis-joinder and non-joinder of necessary parties.
5. On merit, it is stated that the complainant has not mentioned as to what type of account she was maintaining and it is clarified that she was current account holder and being current account holder she is not a consumer under Consumer Protection Act. It is further submitted that the 4 (four) transactions dated 28.07.2018 from ATM are shown but OP could not anticipate as to whether those were unauthorized transactions as the same have not been made through ATM of SBI.
6. It is further submitted that whenever any Debit Card is issued to the customer, the same is issued with instructions that the same be kept in her possession & he/she is not supposed to share its password to any other person and in any case this cannot be said to be any fraudulent or unauthorized transaction as the complainant did not mention the name of concern Bank ATM in her complaint dated 31.07.2018 to SBI Manager or in her Police Complaint dated 02.08.2018.
7. It is further submitted that the complete particulars were not furnished by complainant w.r.t. following SOPs, as alleged and the complaint which was filed by the complainant on 31.07.2018 was without any formal FIR to the Police, she has not filed complete information before the Centralized Public Grievance Redressal Monitoring System and therefore, the complainant has to be put to strict proof w.r.t. averments made by her in the complaint.
8. It is further submitted that complainant has twisted the facts illegally with mala-fide intention to procure the order of her choice and in view of the averments made by complainant in the complaint the same is not maintainable and complaint may be dismissed.
9. Complainant has not filed rejoinder but has filed evidence of her own. OP has filed evidence on Sh. Dharam Rathore, Chief Manager of State Bank of India, Vasant Kunj Branch. Complainant has filed documents which have been exhibited as:

• Copy of statement of account from 15.07.2018 to 30.07.2018 as Ex. Annexure A1.  
• Copy of intimation to branch manager written as Ex. Annexure A2.   
• Copy of police complaint dated 02.08.2018 as Ex. Annexure A2(A).   
• Copy of emails/thread with branch (follow up,) as Ex. Annexure A3 (colly).   
• Copy of grievances/complaint dated 04.02.2021 as Ex. Annexure A4.   
• Copy of email from SBI Denial of claim dated 31.03.2021 as Ex. Annexure A5.   
• Copy of complaint to DPG dated 31.03.2021 as Ex. Annexure A6 (colly).   
• Copy of Letter/Action Taken Requesting Department Financial Services, Secy Finance dated 06.04.2021 as Ex. Annexure A7 (colly).        
• Copy of emails/correspondence IT Department/Financial Department as Ex. Annexure A8 (colly).        
• Copy of RBI computerised receipt for non-maintainability dated 15.01.2022 as Ex. Annexure A9. 
• Copy of Legal Notice to SBI dated 15.01.2022 as Ex. Annexure A10. 

10. OP has not filed any documents. The Commission has heard the arguments and perused the record.
11. Complainant has also filed written arguments and relied upon circulars of RBI and certain other citations including citations of this Commission. In the evidence of complainant, she in para 3 has mentioned that contents of the complaint as submitted before this Commission be read as part & parcel of her affidavit and in para 9 she submits that the act of withdrawal of money was fraudulent & unauthorised transactions were carried out thereby withdrawing the amount of Rs. 40,000/- and intimation of the said unauthorized transactions was registered with OP through its customer care helpline.
12. The OP in reply to this para 3 has denied these facts for want of knowledge thereby submitting that 4 transactions dated 28.07.2018 from ATM are being shown in the statement of account of the complainant but OP cannot say as to how those were unauthorized transactions as the same were not made through SBI ATM or through any illegal mode. OP further submitted that it is pertinent to note that Debit Card was issued by the OP to the complainant on her request and was handed-over to her with instructions to keep it in her own possession and not to share its password to any other persons and complainant be not allowed to take benefit from her own wrongs and she before succeeding has to be put to strict proof of these facts.
13. The OP has also taken various objections in the written statement interalia that complainant has not come to Forum with clean hands, the complainant has not disclosed relevant and material facts, the complaint is bad for mis-joinder and non-joinder as Canara Bank has not been made a party and no cause of action has arisen in favour of the complainant.
14. The Commission will deal with all the contentions one by one. As far as the case is bad in mis-joinder and non-joinder of parties is concerned there appears to be force in that contention. There is no privity of content in between the complainant & the Canara Bank. Complainant is not at all a consumer of Canara Bank nor Canara Bank can be said to be service provider of the complainant & even otherwise, initially it was not known to the complainant as to where from the said alleged fraudulent, if it at all is fraudulent transaction, was done. No doubt when the complainant filed various complaint to various authorities, she became aware that the alleged fraudulent transaction has been done from Canara Bank and she could have made Canara Bank as a party as by the time the complainant filed the complaint she was well aware that disputed transactions have taken placed from some ATM of Canara Bank Branch, but even that could not make the Canara Bank as service provider to the complainant. Therefore it cannot be held that Canara Bank is/was a necessary party in the proceedings & therefore this contention of the OP is not having any force.
15. Coming to the contention of OP w.r.t. RBI circular or w.r.t. various citations where a fraudulent transaction has taken placed and this Commission as well as Hon’ble SCDRC as well as Hon’ble Supreme Court of India in various judgments have held that circular of RBI is quite valid and in case the transaction has been proved as fraudulent transaction, or unauthorized transaction, then the complainant has to be compensated by the Bank as the same is deficiency in the service by bank, who is service provider to the consumer and is also the custodian of the amount of the complainant, kept in her bank/account.
16. The Commission is also of the opinion that where from the transaction has taken place or what privity, one bank has with another bank is not the concern of the complainant. Complainant cannot be anticipated of having knowledge as to what is the internal arrangements of one bank with another bank w.r.t. functional or operational activities of the ATMs and what specific agreement allows one bank to use the ATM of another bank by the customers and complainant cannot be said to be aware of the internal arrangements amongst the banks. Further OP has taken this stand that CCTV Footage of ATM transaction was not provided by the Canara Bank. However this contention of the OP that the OP cannot inform the Commission as to whether the transaction was fraudulent or otherwise as the footage from CCTV have not been provided by the Canara Bank is not well found as it was OP which ought to have obtained CCTV Footage on complaint was received by them. The Commission is of the opinion that the complainant cannot be burdened to prove this fact or to bring this CCTV footage of the concerned ATM of the Canara Bank so that the same be provided to the OP herein, and thereafter OP would be doing the needful. This contention of OP is not well found at all rather it was the OP, who had been informed within 3 days, to check the details & the OP should have asked by Canara Bank to show and preserve the CCTV Footage so as unearth the truth.
17. The Complainant has specifically mentioned in Para 3 that transaction was unauthorized and the OP on the other hand has not specifically denied this fact rather the submission of the OP, which has come on record is that he cannot specifically say as to whether the transaction was unauthorized as the Canara Bank has not provided the CCTV Footage. The issue therefore arises is as to how the complainant would prove this fact as complainant can only know that certain amount has been debited from her account and she has given information to that effect to the her bank. Suffice it to say by the complainant that the transaction is unauthorized and then it is the duty of the OP to get the matter investigated and in fact the OP has got the matter investigated and has come to know that the transaction has been done from some ATM of Canara Bank. What internal arrangement OP bank has with ATM of Canara Bank, can never be explored by the complainant and if this contention of OP is considered, then none of the complainant in general ever would be able to prove that the transaction has been unauthorized or fraudulent. Therefore onus have now been shifted on OP to prove that it was not an unauthorized transaction. Whether such CCTVs were under the complete supervision of a competent official/officer or whether there is no interse arrangement between OP and the Canara Bank are the facts which OP had to divulge to the complainant when she has made the complaint. For example if an illegal transaction has taken place in somewhere distant region outside and then, the complainant would be running from pillar to post, to identify the place from where that transaction has taken place. This would make the RBI circular redundant. The high handedness is writ large on the face of it and it took 3 years in just rejecting the complaint, whereas the guidelines issued by RBI from time to time are that if the complaint has been lodged within 3 days then complainant would not suffer any loss w.r.t. unauthorized transaction. In this matter if the OP, enquired from the Canara Bank timely then the official/authorized persons of Canara Bank would been able to submit the CCTV Footage but indifference on the part of OP allowed all possible proof to vanish from the CCTV Footage as otherwise Canara Bank would have been able to inform that the transaction has been done by the complainant herself or her authorized person by using the card as well as using the password. Surprisingly this is not the contention of the OP at all in the entire written statement rather reply is not specific on this aspect. Therefore keeping in view of all these facts and circumstances Commission is of the opinion that there is deficiency in service on the part of the OP w.r.t. not securing the account of the complainant where unauthorized transaction has taken place on 28/07/2018.
18. The Commission hereby directs the OP to pay Rs.40,000/- to the complainant along with interest @ 6% p.a. from the date of filing the complaint. The OP is also directed to pay compensation of Rs.8000/- to the complainant.
19. The order be complied by the OP within 30 days from the date of receiving the order and if the OP would not comply the order within 30 days, it would pay the interest @9% p.a. to the complainant on all the above amounts till realization.   

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

File be consigned to Record Room.

Announced on 13.04.2023.