FINAL ORDER / JUDGMENT   

  SMT. SUKLA SENGUPTA, PRESIDENT

                This is an application  filed by the complainant U/s 13 of the CP Act, 1986.

The fact of the case in brief is that  complainant being an esteemed customer of SBI holding A/c No. 30337543599 of Ruby Park Branch, Kasba,  having Reg. Mobile No. 07278758365. The complainant found that on 18.10.2017 some fraudulent transaction of Rs. 38,023/- was done from her Ac/ being No. 30337543599 lying in Ruby Park Branch, Kasba SBI.

            She stated that she did no share her OTP to anybody else but somebody withdrawn a sum of Rs.10,000/- each in three transactions and the last transaction of Rs.8,023/- only i.e. total amount of Rs.38,023/- from Poovarim branch of North Goa. The complainant received the withdrawn SMS.

She stated that she did not make any such ATM transaction by that day by using her ATM card and nobody call her and asked for her bank details any time. The A/c summary of the complainant  is annexed herewith as annexure-A.

 Thereafter on 18.10.2017 at about 11.55 pm,   the complainant informed the matter to all the home branch, customer support and various other division  of SBI through mails which are annexed as Annexure “B”.

The complainant also informed the matter to Lal Bazar Crime Cell on 19.10.2017 through mail and they desponded the complainant on  20.10.2017 through mail sent.

 They have already forward the matter to bank fraud section for taking necessary action. The home branch of SBI i.e. Ruby Park Branch has not responded to the complainant and when the complainant meet the Branch Manager, he always asked for some time without any appropriate reply.

   On 26.12.2017, the complainant received hard copy of charge back to refund her money of Rs.  38,023/- only from SBI head office through CPGRAM complaint No. ADEABD /E/2017/34924 “….. in this regards we advised you that, ATM transaction happened in your A/c at HDFC ATM.

So, we raised charge back complaint in CMS to refund your money (Annexure-D). thereafter on 10.03.2018 , the complainant has communicated the said order to the branch (Annexure-“E”).

 It is alleged by the complainant that subsequently on several occasion she visited the home branch with that charge letter but in vain.

She even informed the Goa Police Cyber Crime.  They mailed the complainant stating to approached to  the local PS as they deal with money more than 5 lacs (annexure-E).

The Home Branch always asked for the time.  Without getting any result,  the complainant  had no option but to make the complaint to the higher authority  of SBI requesting to take appropriate action to refund the lost amount with interest with as applicable rate as earliest  for meet her financial  interest and on 18.08.2018 at about 3.14 PM.

 She got mail from SBI customer care stating that “with reference to your grievance regarding fraudulent transaction in your A/c.  We request you to kindly may contact the branch where you hold the A/c report of this issue. You may also contact the cyber cell” (annexure-I) and on 25.08.2018 around 9.36 p.m., they closed the complaint of the petition vide No. 4696113442 without acknowledging the request of reimbursement of the complaint (annexure-J).

The Home branch also failed to give her any proper solution in that respect. On 12.09.2018 at about 5.49 PM, the Home branch i.e. Ruby Park Branch  sent a email   to the complainant seeking for submitting of copy of FIR for further processing annexure-“K”.

It is further stated by the complainant that on 04.10.2018 she received a causal mail from AGM, Customer Cell Kolkata that they have claimed the amount from HDFC.  The OP SBI blamed the complainant stating that she might have shared with OP-2 (Annexure-L) and they wrongly closed the case.

the complainant stated that the question of sharing of OTP does not arise at all because all the 4 transactions in question have done through ATM machine from Porvarin branch, North Goa and not online and not POS. She also lodged the complaint with Cyber Crime Cell of State Police, Headquarters, Lal Bazar on 19.10.2017 and the copy of which has already been sent to SBI with all other documents.

The complainant alleged that she knocked the door of concerned SBI branch but in vain. So without having any other alternative she has filed this case with a prayer to give direction to the OP-1 to 3 to pay a sum of Rs.38,023/- with 12% interest p.a. till the date of realization. The complainant further prayed for giving direction to the OPs to pay compensation of Rs.50,000/- to the complainant for harassment, mental pain and agony along with litigation cost of Rs.30,000/-.

All the OPs i.e. OPs-1 to 3 have contested the case by filing separate WV denying all the material allegations leveled against them. The OP-1 has stated in his WV that the petition of complaint is vague, baseless and motivated one. The complainant has no cause of action to file the case thus the same is liable to be dismissed. It is also alleged by the OP-1 that the petition of compliant is barred by the principles of estoppels, waver acquiescence and limitation as such the same is liable to be dismissed with cost.

It is further stated by the OP-1 that since the complainant herself has alleged that the transactions were all fraud, the complainant ought to have taken the matter seriously and taken proper steps for taking the matter to State Police Lalbazar and ought to have obtained a proper FIR number so that the fraud as alleged could have been investigated and the culprits could be arrested and money could have been recovered but the complainant did not do that rather she informed the investigating agency through mail without perusing the matter to police agency. No document has been submitted before the bank by the complainant so that she lodged the complaint to Lalbazar crime cell in respect of the alleged fraud. It is denied by the OP-1 that the Home branch of SBI, Ruby Park Branch is not respondent whenever the complainant went to meet the bank manager or that she always asked for time without any appropriate answer rather the OP-1 themselves imparted the information that all the alleged fraudulent transactions were done in the HDFC ATM and as such the OP-1 raised a charged back complaint in CMS to refund the money and which is the correct banking procedure so the complainant cannot fasten any liability on the OP-1 for the alleged fraud without taking proper recourse of law by approaching the police authority. The Cyber Crime department also informed the complainant to approach the local police station but the complainant did not do that. It is also stated by the OP-1 that since the complainant has alleged the transaction to be a fraud then the police authority is the best person to investigating the case after proper compliant and lodged the FIR and take appropriate steps against such fraudulent transaction in that case the OP-1 can only help the policy authority in the time of investigation for the purpose of recovery of said money. It is denied that the OP-1 intentionally dragging the matter and did not help the complainant to get back the money rather the complainant with an ulterior motive has filed the case which is baseless vexatious  thus the same is liable to be dismissed.

The OP-2 RBI represented by one Satyabrata Barua has contested the case denying all the allegation leveled against him. It is stated by the OP-2 in his WV that the complainant has alleged about some fraudulent withdrawal from her account maintained with SBI through HDFC bank ATM.  the complainant has alleged that the SBI closed her complaint stating that they submitted claim to the HDFC bank from whose ATM the amount was withdrawn but the same was refused on the ground that all the transactions were successful so it was alleged that there was a deficiency in service on the part of SBI. The OP-2 further stated that complainant has no cause to implead the OP-2 in this case. The petition of complaint is devoid of merits both in law and facts. The OP-2 further stated that the complainant is not a consumer in the eye of law. The OP-2 further stated the OP-2 is not a party of the SBI and HDFC ATM and he is not a party under any provision of law rather the dispute between the complainant and OP bank is a commercial dispute and this answering OP has no role to play in the said commercial dispute.

It is further stated by the OP-2 that the complainant has no cause of action to file the case thus the case is not maintainable in the eye of law and liable to be dismissed.

The OP-3 i.e. the HDFC Bank Ltd. Dalhousie Branch, Kolkata has contested the case by filing separate WV denying all the material allegations leveled against him. It is the case of the OP-3 that he denied the entire case of the complainant and stated that there is / was no valid cause of action  to file the instant case against the OP/ OPs. He further stated that it is revealed from the petition of complaint made by the complainant to the back through mail that on 02.01.2018 at about 02:10:42 p.m. the complainant lodged a customer complaint with her Home branch, SBI, Kasba Branch, contents of the said customer was “ATM relate : A/c debited but cash not dispense : NFS HDF : NFS.” Upon further enquiry into the said case which is raised by the OP-1 before the OP-3 through the complaint raised by RBI it was confirmed by both the bank that the ‘ATM Log’ that is the computerized entry at Poovarim Goa duly evidenced that complainant’s ATM was swiped at the ATM of Poovarim Branch, North Goa on the said date being 18.10.2017 by entering secret the ATM Pin No. made available to the customer of the Concerned Bank and the cash was also dispense by the ATM thus it is submitted that the same was a ‘successful transaction’ .

It is stated by the OP-3 in its WV that as per the  ATM Log records of answering OP-3, the subject ATM transaction was done at Poovarim,  Goa in a proper manner upon using by inserting the ATM card in the machine and the secret ATM PIN of the complainant was entered which resulted in such withdrawal successfully of cash from the ATM machine/ So if the PIN to be entered hence details imputed by person executing the transactions are corrected are matches with the details registered with card issuing bank, there is no occasion to dishonor the said transaction except the validate the same automatically and electronically. Any subsequent transaction required to be PIN which no withdrawal can be happened probably the secret PIN number has been disclosed to any third party by the complainant without the same it cannot be done by any persons so the complainant is solely responsible for the same if she disclosed the PIN to anybody else.

Hence the complainant has no cause of action to file the case thus the same is liable to be dismissed with costs.

In view of the facts as stated by the complainant it has to be considered by this Commission:

1. Whether the case is maintainable or not?

2. Has the complainant any cause of action to file this case?

3. Is the complainant consumer?

4. Is there any deficiency in service on the part of the OPs?

5. Is the complainant entitled to get the relief as prayed for?

Decision with reasons

All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetition.

On a close scrutiny of the materials on record,  facts and circumstances, and position  of law it is found that the case is well maintainable  in the eye of law and the Commission has got ample jurisdiction  to try this case in all respect.

Admittedly the complainant has a Bank A/c at Ruby Park Branch, Kasba, SBI being A/c No. 30337543599, hence, the complainant is a consumer and the OP-1 is the service provider.

It is alleged by the complainant in her petition of complaint that on 18.10.2017 she discovered that withdrawal of a sum of Rs.38,023/- in done from her subject A/c lying with the SBI,  OP-1 branch being A/c No.  30337543599 in four transactions of Rs.10,000/- each in three transactions and Rs.8,023/- in one transaction. Thereafter she made complaint to the OPs and Police claiming refund of Rs.38,023/-. The complainant further stated that the transactions in questions were made from Poovarim Branch, North Goa and she receipt with withdrawal SMS  at about 07.12 p.m. The Complainant stated that she did not made any ATM transactions nor any one contacted her for secret PIN and the ATM card was in her possession (Annexure-A). The Complainant further stated that he informed the matter to the Lalbazar Police through email on 19.12.2017. She alleged that SBI , OP-1 has not responded adequately and they informed her through mail that the subject transaction happened in her A/s in HDFC ATM so the charged back in CMS to refund the money (Annexure - D and D1).

From the evidence on record as well as the content of petition of complaint we got that the Complainant has informed the matter to SBI, Policy Authority, the OP-1 wherein the subject a/c is lying and the HDFC Bank as well as the RBI i.e. the OPs-2 and 3.  She alleged that the OP-1 the Ruby Park Branch of SBI is solely responsible for the same because she did not share her bank details to anybody else but fact remained as well as it reveals from the evidence on record as adduced by the parties that transaction in question were made from HDFC ATN, Poovarim Branch, North Goa and 4 transactions were made, first 3 transactions were of Rs.10,000/- each and last one is Rs.8,023/-, in total a sum of Rs.38,023/- was debited from the subject A/c of the Complainant which is admitted fact. But it is well known to us that in the present situation the hackers have withdrawn the money from the A/c of persons by knowing there A/c details including the secret PIN of the Debit Card by any means. It is also well proved that if anybody cannot share his / her secret PIN of ATM card then nobody could be able to debit any amount from his / her A/c. But in the Instant case though the Complainant claimed that she did not share her secret PIN or bank details of the A/c lying with the OP-1 Bank, SBI but it is fact that if she did not share it then nobody could be able to withdraw amount from the A/c, from the ATM which was the ATM of OP-3 bank. So the amount in question deducted from the A/c in question of the Complainant lying with the OP-1 branch of SBI from the ATM of HDFC, OP-3 Bank situated a Poovarim Branch North Goa.  Without sharing the secret PIN by any means to the miscreants from the end of the Complainant it cannot be possible, because actually the secret PIN was only in her knowledge none else.  

It is not the case of the Complainant that she used her Debit Card (ATM) of the subject A/c lying with the OP-1 branch of SBI but she did not get the money which was deducted from her A/c then the OP-1 branch of SBI will be responsible to refund the amount but in the instant case as we got it from the materials as well as evidence on record the Complainant who is the sole custodian of her ATM / Debit Card and the secret PIN number was only within her knowledge none else, then she must disclosed the same to anybody else by any means from which the fraudulent transactions were made, then she cannot blame the OP-1 bank or the other OPs claiming the refund of Rs.38,023/- which was deducted from the subject A/c lying with the OP-1 branch. 

It is duty of the Complainant to inform the Cyber Crime Branch of Kolkata Police about the incident for recovery of the subject amount. The Commission did not find any sort of negligence and deficiency in service on the part of the OPs. The OPs after getting the complaint from the Complainant tried to solve the matter within their ambit but in vain and it is fact that the cyber crime cell is the only option to the Complainant to get the relief as prayed for.

In view of the discussion made above it is held by the Commission that the Complainant failed to prove the case against the OPs beyond all reasonable and is not entitled to get any relief as prayed for.

All the points of consideration are thus considered and disposed of accordingly.

The case is properly stamped.

Hence,

Ordered

that the case be and the same is dismissed on contest against the OPs without any cost.

Copy of the judgment be uploaded forthwith on the website of the Commission for