State Consumer Disputes Redressal Commission
Icici Bank Ltd. vs Amit Kr. Ghosh on 7 October, 2020
IN THE STATE COMMISSION: DELHI
(Constituted under section 9 of the Consumer Protection Act, 1986)
Date of Hearing: 23.09.2020
Date of Decision:07.10.2020
First Appeal No. 549/2013
IN THE MATTER OF
M/S ICICI BANK LIMITED
Having its branch at
W-57, Greater Kailash-I,
New Delhi-110048 ....Appellant
VERSUS
MR. AMIT KUMAR GHOSH
S/o Late Sh. B.C. Ghosh
R/o- D-7/7240, Vasant Kunj,
New Delhi-110070 ....Respondent
HON'BLE SMT. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
Present: Sh. Ravi Kumar, Counsel for the appellant
Sh. Vikrant R. Shah, Counsel for the respondents.
PER: ANIL SRIVASTAVA, MEMBER
JUDGEMENT
1. Aggrieved by the orders dated 28.01.2013 passed by the Consumer Disputes Redressal Forum-VII in CC-717/2009 in the matter of Amit Kumar Ghosh versus ICICI Bank Limited, holding the (FA-549/2013) M/S ICICI BANK LIMITED VERSUS MR. AMIT KUMAR GHOSH PAGE 1 OF 5 Bank deficient and issuing a direction to them to pay Rs. 1,25,000/- along with interest @ 10% p.a. to the complainant from 16.01.2008 till realisation as also a sum of Rs. 40,000/- as compensation along with Rs. 10,000/- cost of litigation, the ICICI Bank Limited have preferred an appeal before this Commission, for short appellant, under Section 15 of the Consumer Protection Act 1986, the Act, assailing the said order, against Sh. Amit Kumar Ghosh, hereinafter referred to as respondent, alleging that the order impugned has been passed without appreciating the evidence and other necessary facts and praying for setting aside the order since not sustainable.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The respondent is a Corporate Salary account holder of the appellant and user of the internet banking facility. On 16.01.2009, the respondent received five sms alerts on his mobile regarding five times debit of Rs. 25,000/- from his account each time and the respondent thereafter lodged a complaint alleging that the said transactions have not been done by him. The appellant on receipt of the complaint had conducted an inquiry and after the inquiry the respondents were duly informed that it was a case of fraud and cheating done by some fraudsters. It was further reported that the bank was in no way deficient and thus no compensation can be claimed or allowed. It was also observed that the possibility of connivance of the respondent in the alleged fraud cannot be ruled out. They may have shared the personal information with some stranger.
4. The stand of the bank not accepting the request made by the respondent/complainant led to filing of a complaint before the District Forum which complaint having been allowed this appeal has been preferred by the bank on the ground that the District Forum has erred in passing the impugned order in wrongful exercise of jurisdiction and material irregularity. Secondly, the District Forum while passing the impugned order had acted beyond its jurisdiction since the impugned order was passed mechanically without any application of mind based on the averments made without considering of the evidence, examination, cross examination of witness on oath, production of documents to such effect and that such adjudication of issues of fraud in regard to automated, mechanical transactions falls beyond the scope of the ld. Forum. Thirdly, the District Forum failed to appreciate the fact that the user ID, banking password/T Pin is in the exclusive custody of the respondent and highly confidential and without his knowledge or consent the amount in his account cannot be transferred in any other person's account. Fourthly, the Forum has failed to appreciate the fact that the appellant shall not be liable for (FA-549/2013) M/S ICICI BANK LIMITED VERSUS MR. AMIT KUMAR GHOSH PAGE 2 OF 5 any unauthorised transaction in the account through the use of internet/phone banking services which can be attributed to the fraudulent or negligent conduct of the user. The bank always takes care and thus they for any damages caused on account of breach of secrecy/confidentiality due to any omission and commission on part of the user is beyond the control of the bank. Fifth, the Forum below failed to note that the bank officials do not permit/reject the internet/phone banking transactions. It is done by the mechanized system of the bank which is an automated system and responds only to authorised password, user id, ATM Card, T. Pin details etc. Sixth, the Forum below wrongly held, without any evidence, that the bank officials had connived with the fraudsters and thereby holding the appellant to be deficient in services to the respondent/complainant. Seventh, ld. Forum failed to consider and appreciate that in Sharad R. Khekale versus ICICI Bank Limited, Pune (FA-11/2010), the State Commission, Mumbai, has held that 'customer was expected to keep user Id and password numbers as top secret. He is the only holder of the account who knows user id and password numbers. In the instant case, request was made for transfer of amount of Rs. 25,000/- by using correct user id and password number. The bank was bound to follow this request since made on behalf of complainant by using exclusive user id and password. The Maharastra State Commission upheld the order of the forum and observed that:
He had divulged his user id and password number of his internet account facility to somebody else and said person using these user id and password numbers operated his account and got transferred Rs. 25,000/- from his account to Mr. Deshmukh's account and Bank had not committed any act of deficiency in service as alleged by the complainant.
5. Respondent were noticed and in response thereto they have filed their reply resisting the appeal. They have averred that no ground exists for interference with the order impugned here and accordingly prayed for dismissal of the appeal.
6. This matter was listed before this Commission for final hearing on 23.09.2020 when the counsel for both sides appeared and advanced their arguments, the appellant for setting aside the order since passed without appreciating the evidence and the respondents for dismissal of the appeal since the deficiency on the part of the bank writ large on the face. We have perused the records of the case and given a serious consideration to the subject matter.
(FA-549/2013) M/S ICICI BANK LIMITED VERSUS MR. AMIT KUMAR GHOSH PAGE 3 OF 5
7. It is an undisputed fact that the money was withdrawn through electronic mode. On inquiry conducted by the appellant it was noted as under:-
"A fraud has been committed on my account by the accused fraudsters"
8. We may now examine the legal position on the subject. The State Commission of Chandigarh in the matter of State Bank of Patiala versus Ritu Lakhanpal as reported in IV [2014] CPJ 8A (CHD)(CN) is pleased to hold as under:-
"In view of elaborate procedure evolved by bank to ensure that without ATM Card and knowledge of PIN Number it is not possible to withdraw money from ATM. Contention of the respondent/complainant not accepted. District Forum erred in holding appellant (the Bank) deficient in rendering proper service. Impugned order holding bank deficient is set aside.
9. The State Commission, Jharkhand in the matter of State Bank of India versus Srinath Prasad Singh as reported in II [2014] CPJ 4B (Jhar) (CN) has held that no withdrawal is possible through ATM machine unless secret code, which is in the exclusive possession of card holder, is used, similar view was taken by the State Commission Chandigarh in the matter of Rajnikant Upadhyay versus ICICI Bank Ltd. and anr. as reported in II [2012] CPJ 211 (Chd).
10. The Hon'ble NCDRC in the matter of State Bank of India versus K.K. Bhalla as reported in II [2011] CPJ 106 (NC) is pleased to hold that it is not possible to withdraw money from ATM without using ATM Card and PIN.
11. The Hon'ble NCDRC in yet another matter, in the matter of Raghbehdra Kumar Sen and anr. versus Punjab National Bank as reported in I [2015] CPJ 254 (NC) is pleased to observe that no withdrawal from ATM can be made unless the ATM Card/Debit Card issued to account holder is inserted in ATM machine followed by use of ATM pin provided to customer. Even if amount was withdrawn by third person he would have done it using ATM Card provided to him by complainant and ATM pin disclosed by him.
12. Having regard to the discussion done and the legal position explained, it is more than obvious that the money can be withdrawn from the ATM only if the person withdrawing it has the ATM Card and the pin which is otherwise in exclusive possession of the card holder (FA-549/2013) M/S ICICI BANK LIMITED VERSUS MR. AMIT KUMAR GHOSH PAGE 4 OF 5 and thus the money withdrawn from the ATM by a person other than the card holder is not coupled with any fault of the Bank. In these circumstances the orders passed by the District Forum holding the bank deficient in rendering service cannot sustain and it is accordingly set aside.
13. Ordered accordingly, leaving the parties to bear the cost.
14. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information.
15. File be consigned to records.
(Dr. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 07.10.2020 sl (FA-549/2013) M/S ICICI BANK LIMITED VERSUS MR. AMIT KUMAR GHOSH PAGE 5 OF 5