Complaints filed on: 09-12-2021
Disposed on: 22-08-2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 22nd DAY OF AUGUST 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
CC.No. 88/2021
K.J.Sudha W/o Dr.Srikanth .M
Aged about 30 years,
R/at 4th A Cross, Opp:Sapthagiri
House, 1st Floor, Hanumanthapura,
Tumakuru-572 103.
Represented by her S.P.A.Holder,
K.R.Jayaramu S/o Late K.R.Ramakrishna
A/a 60 years, R/at H.No.77,
Sri.Raghavendra Nilaya,
Hastinapur Layout, Keshwapur,
Hubballi, Pin-580 023.
Dharwad District.
Now R/at 4th A Cross, Opp:Sapthagiri House,
1st Floor, Hanumanthapura, Tumakuru-572103.
……….Complainant
(By Sri.K.R.Jayaramu, Spl. P.A. Holder)
V/s
1. The Manager, Axis Bank,
Siddaganga Complex,
Ground Floor, Bengaluru –
Honnavara Road, Tumakuru-572 104.
2. The Manager, Axis Bank
Ammanuru Complex,
Kusugal Road, Branch,
Keshwapur, Hubballi-580 023.
3. Prathana, Working at Axis Bank,
Lalbagh Branch, Bengaluru.
4. The Nodal Officer,
Grievances Redressal Cell,
The Manager, Customer Care,
Axis Bank Ltd., NPCI, 5th Floor,
“Gigaplex” Plot No.1, T-5,
MIDC, AIROLI, Knowledge Park,
AIROLI, Navi Mumbai-400 708.
5. Manager/Officer In-charge,
E Com PUR/Oriel,
Financial Sol. Pvt. Ltd.,
Office No.105, 4855/24
Ansari Road, Daryaganj,
Nearby Patel Hospital
Delhi-110 002.
6. Manager/Officer in charge,
PAY U Payments Private Ltd.,
(Head Office) 9th Floor,
BESTECH Business Tower,
Sohna Road, Tavam Villas
Dhani Sector-48, Gurgaon PIN-122 001.
……….Opposite Party
(OP1-4 By Chandrashekar S.N.,, Advocate)
(OP Nos. 5 & 6 – Served absent)
: O R D E R:
SMT.G.T.VIJAYALAKSHMI, PRESIDENT
This complaint is filed against the OPs with a prayer to direct the OPs to return Rs.35,000/- and Rs.65,000/- with interest @ 12% PA to the complainant from 20.06.2020 till realization along with Rs.1,00,000/- towards compensation, Rs.50,000/- towards damages for harassment and agony suffered by the complainant and Rs.25,000/- towards cost of the litigation.
2. The brief facts of the complaint are as under:-
The complainant is a S.B.Account holder having S.B. A/c No.917010026705064, debit card No.4173490016300036 and credit card No.4514570044398611 at Axis Bank, Tumkur. The complainant has submitted that Axis Bank have contacted often and made many calls to her mobile No.8277233031 to take credit card, even though she did not apply for credit card or want it in the initial stage, but later took it. The complainant has made an allegation that even though she has not generated pin and password for her credit card, but the unauthorized transaction took place. Further, the complainant submitted that she has got call from No.9910617832 on 20.06.2020. The person was speaking in Hindi and stated that he was staff speaking from Axis Bank seeking complainant's debit card No. CVV No. and OTP received on the complainant's mobile number and the complainant shared the debit card details like debit card No. CVV No. and OTP number and the money of Rs.35,000/- was debited at 13:45:19 at PUR/ORIEL FINANCIAL SOL/DELHI. As soon as the complainant gave the debit card details, a message was received to the complainant mobile number as "BW-AXIS BK you A/c 705064 is debited with Rs.35,000/- on 20.06.2020 13:45:19 at PUR/ORIEL FINANCIAL SOL/DELHI, Avbl Bal is Rs.18,168-35 call 18605005555 for dispute.
2(a) Further, the complainant submits that on 14.07.2020 when she was checking up the messages received on the G-mail ID of the registered mobile with Axis Bank she was shocked to see the message as under:-
From - Transaction alert from @ Axis Ban.com date June 20, 2020 1:131 p.m.
Subject Transaction alert from Axis bank to < sudha k.j. mitu @ G.Mail.com>
Axis bank Badhri ka nam zindagi
Dear Customer
Thank you for banking with Axis bank
Rs.65,000/- was spent on your Axis bank credit card XX8611 on 20th June 2020 01:29:47 p.m. at pay payments Pvt. Ltd. your available credit limit is Rs.5,000/- the total credit limit of you account is Rs.70,000/-.
2(b) The complainant further submitted that as per circulars dated: July 6th 2017 issued by the Reserve Bank of India total scheduled commercial banks (including RRBs) and small financial Banks and payments banks regarding (5) reporting authorized transaction by customers to the bank. The SMS alerts shall mandatorily be sent to the customer but here only G mail alert was sent to the complainant registered Mobile No. regarding Rs.65,000/- spent from her credit card on 20.06.2020.
2(c) The complainant further submitted that she has filed a detailed complaint at Cyber vide criminal No.0083/2020 on 14.07.2020. The complainant further submitted that she has written letter to the OP No.1 on 27.07.2020, 31.08.2020, 24 & 28.09.2020 regarding fraudulent transaction of Rs.35,000/- from her debit card and Rs.65,000/- from her credit card and requested the O.P.No.1 to recover the above said money from the frauds and solve the problem and till date no proper action is taken from OP No.1. Hence, this complaint.
3. After service of notice, the OP Nos. 1 to 4 appeared through their counsels and filed their version. Noticed issued to OP Nos. 5 & 6 duly served, called out absent.
3(a) The OP Nos. 1 to 4 submitted that the complainant has no cause of action nor is any valid cause evident on perusal of the complaint against the OP Nos. 1 to 4. The complainant has failed to make out a case of deficiency in service, injustice and fraud against the OP Nos. 1 to 4. The complainant has not provided any valid and legal reason for which she is eligible for any relief whatsoever and none exist for the grant of any. The complaint suffers seriously from laches as the complaint is deliberately filed, with the mala-fide intention of escaping from the liability of payment of out standings towards the usage of the credit card. The OP Nos. 1 to 4 further contended that the subject matter of the complaint is registered under crime No.83/2020 is under investigation before the cybercrime police station at Hubballi. During the period of investigation, conducting the proceedings before the commission is contrary and this Commission is not in a position to come to a fair conclusion until and unless the investigation is concluded in crime No.83/2020.
3(b) The OP Nos. 1 to 4 further contended that there is a clear admission at Para 11 of the complaint that the complainant has shared/given the confidential information like debit card number, CVV number and OTP number to the un-known person. Immediately after sharing the information, the complainant received the message to her registered mobile number regarding debited the amount of Rs.35,000/- on 20.06.2020. In the event of admitting the fact is sufficient to dismiss the present complaint and it seems the entire fraudulent transaction took place due to the negligent act of the complainant but not by the Opposite party, hence the OP Nos. 1 to 4 are not liable for any compensation or damages claimed by the complainant.
3(c). The complainant herein had approached the Bank requesting for opening of a saving account. The Account opening form was filled and submitted by the respondent to the OP Nos. 1 to3 and thereafter registered with the OP and to receive the banking notifications/customer alerts/sensitive information like one time password (OTP) etc., with regard to operation of the saving bank account. Thereafter the complainant had started operating and maintaining the savings A/c vide No.917010026705064 with the OP Bank and upon complainant request the OP bank has granted the credit card facility also for the said savings account. The respondent utilizes the credit card facility as per her own requirements.
3(d) The OP Bank humbly submits that in the normal course of business, it sends its customers intimations and alters by way of e-mails and SMS requesting them not to reveal any of their confidential banking details with any other person and the customer must be extremely cautious and vigilant when they are receiving phishing email or phone calls are received and they should never be respond to the same and/or share any of their details. The incident of sharing the confidential and sensitive information secret credit card number/CVV/OTP/Password, relating to the bank account by the customer is similar to person giving keys of his safe/house to thief who losses his valuables.
3(e) The OP Nos. 1 to 4 further contended that the account holder has to validate by inserting the system generated one time password system by the OP bank and sent to the registered mobile number of an account holder, which are also only accessible to and within the knowledge of the concerned account holder since the registered mobile No.+91 8277233031 is always in the possession of the account holders only. It is further contended that the Bank submits that it is sole responsibility of the concerned account holders to ensure that her credit card credentials kept under her own knowledge only and also to ensure that the registered mobile No.918277233031 is always active as per the undertakings provided by the complainant at the time of submission of account opening form and terms and conditions of operating the saving account.
3(f) The OP Nos. 1 to 4 further contended that the OP and also submits that its records reflect that the complainant has received necessary alerts through SMS/OTP with respect t to each transaction in her account on her registered mobile number. It is further submitted that the burden of proof lies on the complainant in order to prove the averment that she has not used the credit card. Mere stating that their credit card was not used by the complainant will not suffice. It is pertinent to note that the complainant has used the said credit card as well, which can be seen in the statement of account. Hence, the complaint does not hold any merit and is liable to be dismissed.
4. The complainants and OPs have filed their affidavit evidence with copies of bank statements. The complainant produced copies of 56 documents.
5. We have heard the arguments from both parties.
(1) Whether there is any deficiency in service on the
part of OPs?
(2) Whether complainant has entitled for reliefs
sought for?
6. Our findings to the aforesaid points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order
:REASONS:
7. Point Nos.(1) & (2): It is an admitted fact that the complainant is a S.B. Account holder having S.B. Account No.91701002670564 debit card and credit card No.4514570044398611 at Axis Bank, Tumakuru. The complainant received the credit card on 23.03.2020 and the credit limit was Rs.70,000/-. Now the main allegation of the complainant is that, even though, she has not generated Pin and password for her credit card, the unauthorized transactions took place on 20.06.2022. As a result, Rs.65,000/- spent from her credit card.
8. The complainant admitted the fact that when she resides in Father's house at Hubballi, she has got call from Mobile No.9910617832 on 20.06.2020 and seeking information regarding complainant's debit card number, CVV No. and OTP received on the complainant mobile number. The complainant shared the debit card details i.e. card number, CVV number and OTP number. As soon as the complainant shared the details, a message was received to the complainant's mobile number as ""BW-AXIS BK you A/c 705064 is debited with Rs.35,000/- on 20.06.2020 13:45:19 at PUR/ORIEL FINANCIAL SOL/DELHI, Avbl Bal is Rs.18,168-35 call 18605005555 for dispute.
9. Soon after receiving the SMS alert through her mobile, the complainant contacted the OP No.2 to report the fraudulent transaction and requested to block her cards. As per the Bank staff (OP No.2) advise/guidance, complainant filled the form given by the staff and submitted to the OP No.2 and reported the matter to Cyber Crime Police Station.
10. The complainant further submits that on 14.07.2020 when she was checking up the messages received on the G-mail ID of the registered mobile with Axis Bank she was shocked to see the message as under:-
From - Transaction alert from @ Axis Ban.com date June 20, 2020 1:131 p.m.
Subject Transaction alert from Axis bank to < sudha k.j. mitu @ G.Mail.com>
Axis bank Badhri ka nam zindagi
Dear Customer
Thank you for banking with Axis bank
Rs.65,000/- was spent on your Axis bank credit card XX8611 on 20th June 2020 01:29:47 p.m. at pay payments Pvt. Ltd. your available credit limit is Rs.5,000/- the total credit limit of you account is Rs.70,000/-.
11. The contention of the OP Nos. 1 to 4 is that the complainant had already filed a complaint before the Cyber Crime Police Station and the same is being pending, hence, the complaint before the District Forum was not maintainable. The OP Nos. 1 to 4 further contended that the transaction disputed by the complainant is secured transaction as per statement of accounts.
12. The OP Nos. 1 to 4 further contended that the complainant has shared/given the confidential information like debit card number, CVV number and OTP number to the un-known person. Immediately after sharing the information, the complainant received the message to her registered mobile number regarding debited the amount of Rs.35,000/- on 20.06.2020. The entire fraudulent transaction took place due to the negligent act of the complainant, but not by the OP Nos. 1 to 4. Therefore, the OPs are not liable for any compensation/damages claimed by the complainant with regard to the transaction of Rs.35,000/- and Rs.65,000/-. The complainant lodged the complaint with the Cyber Crime Police Station on 14/07/2020 and the same has been registered as FIR No.0083/2020 dated:14.07.2020. But the complainant had intimated about the fraudulent transactions to the OP/Bank after two weeks.
13. The complainant submitted that, the card was in complainant's possession at the time of transaction had taken place and the transaction had taken place in Delhi, Gurgaon, Pin is not generated and not disclosed card details to anybody. According to the complainant, the transaction of Rs.35,000/- took place at PUR/ORIEL FINANCIAL SOL/DELHI and another transaction of Rs.65,000/- took place at Pay Payments Private Limited, whereas she is very much present in Karnataka.
14. The reason for the fraudulent transaction must be forged/hacking of the card/some other technical/security lapse in the electronic banking system through which the transaction had taken place and for these type of transaction, the bank is liable.
15. In the absence of any evidence that, the details of the credit card shared by the complainant with 3rd parties, the Bank is liable for the unauthorized transaction of Rs.65,000/-. The complainant is referred the circular bearing No.DBR.No.Leg BC 78/09 07.005/2017-18, dated: July 6, 2017 issued by RBI to all branches, wherein it is stated as under:
In Para(5):
"Banks must ask their customers to mandatorily register for SMS alerts and wherever available register for e-mail alerts, for electronic banking transactions. The SMS alerts shall mandatorily be sent to the customers, while email alerts may be sent, wherever registered. The customers must be advised to notify their bank of any unauthorized electronic banking transaction at the earliest after the occurrence of such transaction, and informed that the longer the time taken to notify the bank, the higher will be the risk of loss to the bank/customer".
As per Para(6) & (7):
Limited Liability of a customer
(a) Zero Liability of a Customer
6. A customer's entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:
i. Contributory fraud/negligence/deficiency on the part of 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 unauthorized transaction.
(b) Limited Liability of a Customer
7. A customer shall be liable for the loss occurring due to unauthorized transactions in the following cases:
(i) In cases where the loss is due to negligence by a customer, such as where he 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.
(ii) 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 Table 1, whichever is lower.
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/ Cash Credit/ Overdraft Accounts of MSMEs • Current Accounts/ Cash Credit/ Overdraft Accounts of Individuals with annual average balance (during 365 days preceding the incidence of fraud)/ limit up to Rs.25 lakh • Credit cards with limit up to Rs.5 lakh | 10,000 |
• All other Current/ Cash Credit/ Overdraft Accounts • Credit cards with limit above Rs.5 lakh | 25,000 |
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.
16. As per the above RBI circular, the Banks have an obligation to send SMS alerts mandatorily to customers regarding online transactions and the customer must intimate about the fraudulent transaction within the specified time by the RBI guidelines. Then, the customer entitled to claim compensation from Banks.
17. In the present case, the complainant received SMS alert for the transaction of Rs.35,000/- relating to the debit card, but the complainant not received any SMS alerts for the fraudulent transaction of Rs.65,000/- took place on 20.06.2020 at 1:29:47 PM. But the Bank has sent mail to the g-mail ID of the complainant on the same day i.e. 20/06/2020 and the complainant noticed the mail on 14.07.2020. The complainant immediately reported to the OP/Bank at Hubballi.
18. Though the mobile number of the complainant was registered with Axis Bank, it failed to initiate SMS for the fraudulent transaction of Rs.65,000/- took place on 20.06.2020. Failure of Axis Bank to follow the RBI Mandated guidelines amounts to deficiency in service reasonably expected by the Bank for the online transactions.
19. With regard to the transaction of Rs.35,000/-, the complainant herself has disclosed the details of the debit card and receives the SMS alert. Hence, because of her negligent act and as per RBI guidelines, she is not entitled to claim Rs.35,000/- from OP Nos.1 to 4.
20. The complainant also claimed Rs.1,00,000/- towards compensation and Rs.50,000/- towards damages for harassment and mental agony suffered. Of-course there is a deficiency of service by the OP Nos.1 to 4 as they have failed to send the SMS alert to the complainant, but they repeatedly make calls to the complainant for payment of Rs.65,000/- and interest thereon and also sent officials to collect the dues, thereby cause the complainant suffered mental agony. As per document Nos. 23, 41, 42, 44, 45 and 46, the complainant compelled to approach Cyber Crime Police authorities (personnel) and Axis Bank customer care, Axis Bank Nodal Officer, Mumbai, Banking Ombudsmen, customer service Manager, M.D./C.E.O. of Axis Bank through letter correspondence. Finally she approached this Commission. Hence, the complainant is entitled for Rs.15,000/- as compensation for mental agony and Rs.10,000/- as litigation expenses. There is no any allegation of deficiency in service against OP Nos. 5 & 6. Hence, complaint against OP Nos. 5 & 6 is liable to be dismissed. Accordingly, we proceed to pass the following:-
:O R D E R:
The complaint is allowed in part with cost.
The OPs 1 to 4 are directed to waive-off of Rs.65,000/- (spent from complainant's credit card on 20.06.2020) pertaining to the complainant's credit card.
The OPs 1 to 4 are directed to pay Rs.10,000/- as litigation expenses and Rs.15,000/- towards compensation.
The complaint against OP Nos. 5 & 6 is dismissed.
The OPs 1 to 4 are further directed to comply the above order within 45 days from the date of receipt/knowledge of the order.
Furnish free copy of this order to both parties free of cost immediately.
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