National Consumer Disputes Redressal
State Bank Of India vs Dr. J.C.S. Kataky on 3 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3073 OF 2016 (Against the Order dated 23/08/2016 in Appeal No. 33/2015 of the State Commission Assam) 1. STATE BANK OF INDIA (CODE NO. 05604) THROUGH ITS BRANCH MANAGER, RRL JORHAT BRANCH, DISTRICT-JORHAT-785006 ASSAM ...........Petitioner(s) Versus 1. DR. J.C.S. KATAKY NH-37, AT ROAD, NEAR NEIST GATE NO.1, JORHAT ASSAM ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 03 May 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
:
Mr. Siddharth Sangal, Advocate
Mr. Abhay Tayal, Advocate
For the Respondent
:
In person
PRONOUNCED ON : 3rd MAY 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 23.08.2016, passed by the Assam State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 33/2015, "State Bank of India & Ors. vs. Dr. J.C.S. Kataky", vide which, while dismissing the appeal, the order dated 13.08.2015, passed by the District Consumer Disputes Redressal Forum Jorhat, allowing the consumer complaint No. 7/2014, filed by the complainant/respondent, was upheld.
2. The facts of the case are that the complainant/respondent is the holder of a savings bank account No. 10354169732 with ATM facility in the RRL Jorhat Branch of the State Bank of India. As stated in the consumer complaint, somebody claiming to be calling from the Mumbai office of the State Bank of India, telephoned the complainant at 08:00 PM on 08.08.2012, stating that his ATM card had been upgraded and its new number was 5196200003281481, valid from August 2012 to August 2016 and that the PIN will be sent through email and that his old ATM card had been blocked. The said caller informed the complainant about the new PIN as well. The said person also stated that the new ATM card had been delivered to the concerned branch office. After some time on the same day, the complainant received a message on his mobile phone that his ATM card had been used for purchase worth ₹976/- on POS000000000015131. A similar message of purchase worth ₹769/- on another POS was also received thereafter. The complainant transferred the remaining amount in his account to his another account in the State Bank of India through internet banking. On making online verification, he found that his savings bank account No. 10354169732 had been debited with another amount of ₹28,949/- but no message had been received pertaining to the said amount.
3. On the next morning, the complainant contacted the SBI branch at Jorhat and on their advice, lodged an FIR with Pulibar Police Station. A case was registered vide C/No. 151/12 under section 420 IPC. After investigation, the Police gave report that they could not trace the culprit and they submitted the same to the court. The complainant approached the banking ombudsman as well, but they informed him vide order dated 11.03.2014 that the complaint had been closed. However, they stated that the complainant was free to approach any other forum of competent jurisdiction. The complainant filed the consumer complaint in question, claiming refund of the amount of ₹28,949/- alongwith interest @11.5% p.a. and also litigation cost of ₹3,000/-
4. In their written statement filed before the District Forum, the OP Bank stated that there was no record or evidence of any call made or SMS sent to the complainant by them. The OP stated that the complainant could verify and inspect his account at the concerned branch of SBI. The District Forum after considering the averments of the parties, concluded that a sum of ₹30,694/- (₹976/- + ₹769/- + ₹28,949) had been debited from the account of the complainant in the State Bank of India on 08.08.2012 at 8:00 PM by unknown miscreants, without the knowledge of the complainant. The District Forum found deficiency in service on the part of the Bank in not trying to trace-out the transactions at the concerned point of sale. The District Forum ordered that a sum of ₹30,694/- with interest @10% p.a. from 08.08.2012 should be paid to the complainant alongwith a compensation of ₹20,000/- and litigation cost of ₹3,000/-. Being aggrieved against the said order of the District Forum, the OP challenged the same by way of an appeal before the State Commission. The said appeal having been dismissed vide impugned order, the OP Bank is before this Commission by way of the present revision petition.
5. Notice of the revision petition was sent to the complainant/respondent who appeared in person and was heard. The arguments of the learned counsel for the petitioner were also heard.
6. The learned counsel for the petitioner Bank submitted that there was no question of any call being made at 8 PM to the complainant by any official of their Bank, because their working hours were upto 5 PM only. The learned counsel stated that the transaction in question, could be done only, if the person making the transaction was aware of the debit card number, the expiry date, the PIN as well as the CVV number. This whole information must have been given by the complainant himself to some other person, who could be instrumental in making the transactions in question.
7. The learned counsel has drawn attention to the evidence affidavit filed by the Bank before the District Forum, in which the whole process of obtaining the ATM card has been explained. It is stated that a customer has to come physically to the Bank to take the secret PIN. The cards etc. are sent by registered post, but the PIN is delivered in person. There was no question of PIN having been delivered by any bank official on phone. The learned counsel has also drawn attention to the manual delivered to the customers by the Bank, in which the whole process of issuing the card/PIN etc. had been explained and the necessary precautions to be observed by the complainants had also been listed. It had been stated clearly in the said manual that the Bank had no liability for the unauthorised use of the card and the responsibility was fully upon the card holder. In the same manual, the customers had been advised to change the PIN immediately on receipt of the same from the Bank.
8. The complainant/respondent stated on the other hand that both the consumer fora below had passed orders in his favour and there was no sufficient ground to make any change in the said orders in exercise of the revisional jurisdiction. The complainant stated that he had not divulged information about his card or PIN to anybody. On the very next day of the incident, he had personally gone to his bank branch, and on their advice, had lodged an FIR with the Police. The Bank was clearly deficient in service as they made no efforts to check the fraud inflicted upon him. Moreover, it was the duty of the Bank to take up the matter with the local police and then ensure follow-up with them. The complainant also stated that he had received SMS on his mobile phone in respect of two minor amounts only and not for the main amount of ₹28,949/-.
9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
10. The main issue that requires consideration in the matter is whether it was the duty of the Bank to play any meaningful role in the matter when their own customer/complainant had reported to them about the alleged fraudulent transaction from his account on three different occasions on the same day. The Bank has simply taken the plea that once the ATM card was issued to the complainant and a PIN was provided, it was the duty of the card holder to change the PIN immediately, and the Bank was not liable in any manner, if any fraudulent transaction had taken place from that account. In the written statement filed by the OP Bank before the District Forum, the Bank simply stated that there was no record or evidence of any call, SMS etc. having been made by any official of the Bank to the complainant. They have further stated that an FIR was lodged by the complainant with the local police and as per the Police report, the accused persons were untraceable. The Bank has stated in their reply as follows:-
"that to great regret the complainant lodged this complaint where the OP can do nothing but request the complainant to verify and inspect his account in the branch of the Bank where it is open for him."
11. On the other hand, a perusal of the complaint indicates that specific numbers of point of sale (POS) terminals at merchant establishments (MEs) have been given, saying that there were purchases worth ₹976/- and ₹769/- on 2 occasions and these amounts were debited to the account of the complainant. The complainant received messages also in respect of these two transactions from the Bank. However, there was a third transaction of ₹28,949/- also and the said amount was debited from the account of the complainant, but no SMS etc. was received in respect of the said amount. It is clear from the facts on record that the Bank flatly refused to even look into the matter, what to speak of making any investigation into the same. Once the specific POS number had been given in the message received from the Bank itself to the complainant, the Bank could have very well verified the genuineness of these transactions, after establishing contact with the person or merchant establishment in possession of the said POS, but nothing of that sort was done.
12. The OP Bank has consistently taken stand in their written reply as well as in the oral arguments before us that unless the particulars of the card number, PIN, expiry date and the Card Verification Value (CVV) are divulged to a third person, the card cannot be misused. It is a matter of common experience that when some payment is made from a credit/debit card on some website, the details like the card number, the expiry date, the CVV number etc. are required. In addition, a one time password (OTP) is generated and is sent to the mobile number of the consumer and such OTP is entered before the said transaction is complete. However, for making transaction in a merchant establishment (ME), the card is handed over to the staff of such establishment and the same is put into POS and a transaction takes place after simply recording the PIN, which is valid for the ATM machine as well. It is worthwhile to mention here that the practice of entering the PIN on the POS terminal has been started only a couple of years back or so and before that, there was no requirement of entering the PIN as well. It is very clear, therefore, that the transaction on a POS terminal could be made by simply providing the card to the personnel of the merchant establishment and there was no need of sharing the other details etc. with that establishment. It was, therefore, necessary for the Bank to have carried out suitable investigation into the alleged transactions.
13. The learned counsel for the petitioner Bank has drawn attention to the orders passed by this Commission from time to time in support of his arguments. In the case "Raghabendra Nath Sen & Anr. vs. Punjab National Bank" [I (2015) CPJ 254], the issue involved was that a sum of ₹5,000/- was alleged to have been fraudulently taken out from the ATM machine. The Bank took the stand that as per their record, two transactions of ₹5,000/- and ₹1,000/- on the ATM card had been made on the same date and the presumption was that both these transactions were made by the card holder himself. This Commission also observed that the complainant did not lodge the complaint immediately with the Bank. This Commission also noted that withdrawal from the ATM could not have taken place unless the PIN was shared with some other party. It is obvious, therefore, that the facts of the case in "Raghabendra Nath Sen & Anr. vs. Punjab National Bank" (supra) are not applicable in the present case, as the present complaint relates to use of the card at POS terminal of a merchant establishment.
14. Further in "State Bank of India vs. K.K. Bhalla" [II (2011) CPJ 106 (NC)], it was observed that the ATM card was very much in possession of the complainant and only he was aware of the four digit PIN number. The matter related to the withdrawal of money from the ATM machine. This Commission held that the withdrawal could not take place unless the ATM card or PIN fell in wrong hands. In "State Bank of India vs. Sansar Chand Kapoor & Anr." [II (2015) CPJ 135], the issue was the withdrawal of money from the ATM machine. This Commission found that no cash from the account of the complainant could have been withdrawn without use of the ATM card and the complainant himself was aware of the PIN number.
15. In another case cited by the complainant/respondent and relied upon by the State Commission, "Vidyawati vs. State Bank of India & Ors." [RP No. 4868/2012 decided on 18.02.2015], the allegation was that there had been unauthorised withdrawal from the savings accounts of the complainant as well as some other person. This Commission held that since the money had been wrongly withdrawn by foul play from the account of the complainant as well as some other person, the bank was liable to make good the loss.
16. Given the overall set of facts and circumstances of the case, it becomes abundantly clear that the citations given by the petitioner Bank as well as by the respondent relate only to the withdrawal of money from the ATM machine by the use of the PIN. The present complaint has, however, different fact because the transactions were made at POS terminals at different merchant establishments. Moreover, there was a third debit from the account of the complainant amounting to ₹28,949/- for which no message was received by the complainant from the Bank. It was, therefore, the duty of the Bank to have looked into the matter to arrive at the truth of the same.
17. A perusal of the literature explaining the features of the debit card in question and relied upon by the counsel for the Bank does say that the Bank bears no liability for the unauthorised use of the card and the responsibility for the same is fully that of the card holder. However, in the said literature, it has been stated under the head terms and conditions as follows:-
"(d) Transactions : The transactions record generated by the ATM or POS will be binding on the Cardholder and it will be conclusive unless verified otherwise and corrected by the Bank. The verified and corrected amount will be binding on the Cardholder."
18. A perusal of the above provision indicates that the transaction record generated by the ATM or POS will be binding on the card holder and will be conclusive unless verified otherwise and corrected by the Bank.
19. A plain reading of this provision is sufficient to establish that once the complaint was made citing specific incidents of unauthorised withdrawal, it was the duty of the Bank to have carried out the necessary verification in the matter, rather than washing their hands off from the whole episode. Evidently, there has been deficiency in service on the part of the Bank, vis-à-vis, the consumer/complainant. It is held, therefore, that the consumer fora below have made a correct appreciation of the facts and circumstances on record which deciding the complaint in favour of the complainant. Moreover, it is a settled legal proposition that the powers in the exercise of the revisional jurisdiction are used only if there is a jurisdictional error or material defect in the orders passed by the consumer fora below. We are supported in this assertion by an order passed by the Hon'ble Supreme Court in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]".
20. From the foregoing discussion, it is held that there is no merit in this revision petition and the same is ordered to be dismissed and the orders passed by the consumer fora below are affirmed. The OP Bank is directed to make payment of the amount in question to the complainant within 4 weeks from today. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER