State Consumer Disputes Redressal Commission
The Chairman Cum Managing Director, ... vs Kalyani Chintagumpala W/O.Ravi Babu ... on 21 September, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. FA.No.537/2011 against C.C.No.31/2010 District Forum, RANGA REDDY DISTRICT. Between 1. The Chairman cum Managing Director, ICICI Bank, 10th floor, ICICI Towers, South Tower, Bandra Kurla complex, Mumbai, Maharashtra-400 051. 2. The Branch Manager, M/s ICICI Bank Ltd., 1st floor, B-44, Journalist Colony, Film Nagar, Jubilee Hills, Hyderabad. ..Appellants/ Opp.parties And 1. Kalyani Chintagumpala W/o.Ravi Babu Gogineni, flat No.419, Nirma Ratna Apartments, Huda Colony, Gangaram Hyderabad-50. . Respondent/ Complainant 2. The Branch Manager, Oriental Bank of Commerce, 4-113/1, Gupta Commercial complex, Chandanagar, Hyderabad-50. Respondent/ Opp.party (R2 is a proforma party as no relief is claimed) Counsel for the Appellants : M/s P.Ramachandran Counsel for the Respondent : R1 appeared in person QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE TWENTY FIRST DAY OF SEPTEMBER, TWO THOUSAND TWELVE Oral Order (Per Honble Sri Justice D.Appa Rao, President) *** The opposite party ICICI bank preferred this appeal against the order of the District Forum directing it to refund an amount of Rs.70,000/- with interest @ 9% p.a. from 01-11-2009 till realization together with compensation of Rs.50,000/- and costs of Rs.5,000/-.
The case of the complainant in brief is that she worked as Senior Software Engineer in Value Labs at Hi-tech city, Hyderabad. The employer had opened a corporate account in her name and credited the salary directly into her account. The opposite party bank issued a Titanium International Debit card for withdrawal of the amounts through ATM and the debit card number being 5326661119000011. It had also informed that SMS alerts would be given to her as and when withdrawals and deposits were made.
Accordingly salary was being credited into her account and she was withdrawing and receiving SMS alerts. While so she had withdrawn Rs.2,000/- on 24-1-2010 through ATM card and on seeing statement slip, she found 7 transactions were done wherein a total of Rs.70,000/- was withdrawn on 11-1-2010 between 20.58 Hrs. and 21.21 Hrs.
These were all unauthorized withdrawals without her knowledge. She did not receive any SMS alerts. She complained to the police as well as to the bank and also Customer care centre. However, the bank did not show any interest to solve the problem and failed to explain as to how these transactions could find a place. Since the amounts were said to be withdrawn from ATM belonging to opposite party No.3, Oriental Bank of Commerce, she requested them to show the CCTV footage and furnish system generated statement account; on the information furnished she could know that some unknown person had withdrawn the amounts by using altogether a different debit card bearing No. 5326661119000010. When she gave notice by furnishing the particulars by narrating these facts, they neither gave a reply nor paid the amount. The bank was not diligent in protecting the interests of its customers and her hard earned money was allowed to be withdrawn by third parties.
Therefore, she filed the complaint claiming Rs.70,000/- together with interest at 24% p.a. from 11-1-2010 till the date of payment besides compensation of Rs.2,00,000/- for mental agony, Rs.2,00,000/- for deficiency in service, damages of Rs.20,000/- and costs of Rs.10,000/-.
The appellant, ICICI bank, resisted the case. It admitted that the complainant was holding an account and it had issued Titanium International Debit card for withdrawal of the amounts through ATM centers. In order to avoid frauds and to safeguard the interest of the customers, they had informed that SMS alters would be given on mobile whenever withdrawals or deposits were made. While admitting the withdrawal of Rs.2,000/- on 24-01-2010 by the complainant, they deny that the complainant had nothing to do with the withdrawals of Rs.70,000/- made on 11-1-2010. On receiving the complaint, they had put in all the efforts to ascertain the fact through their internal Risk Containment Unit (RCU). It is the customers responsibility to keep the credit and debit cards in safe custody and maintain confidentiality of the pin etc., It is liable only for any transactions that occur on lost or misplaced card from the time the loss is reported.
She had informed the mis-use of the card after a long gap of time. She did not choose to complain immediately. When the debit card belongs to a third party, the account of the complainant could not be transacted. The question of paying the amount will not rise. The system was so developed to avoid frauds, in fact, it is the complainant who has to keep the card with due diligence without revealing the pin number to third parties. Therefore, they prayed for dismissal of the complaint with costs.
The complainant in proof of her case filed her affidavit and Exs.A1 to A4 were marked on her behalf while the opposite parties marked the affidavit evidence of its Branch Manager and filed Exs.B1 to B8.
The District Forum after considering the evidence placed on record opined that the amount from the account of the complainant has been withdrawn with different card number evident from the statement of account furnished by Oriental Bank of Commerce vide Ex.A4. The appellant bank filed transaction slips Exs.B2 to B8 which did not tally with the statement issued by Oriental Bank of Commerce and therefore the deficiency in service lies with the appellant and therefore directed the appellant bank to refund an amount of Rs.70,000/- together with compensation of Rs.50,000/- and costs of Rs.5,000/-.
Aggrieved by the said order, ICICI bank preferred the appeal contending that the District Forum did not appreciate either facts or law in correct perspective. In order to avoid frauds and safeguard the interests of its customers, SMS alerts are given. The complainant did not immediately complain about withdrawal by third parties. The amount was withdrawn by third parties as she parted the confidential pin number of the debit card. In fact the National Commission in R.P.No.3182/2008 had taken cognizance of these cases and opined that the banks cannot be penalized, therefore, it prayed for dismissal of the complaint.
The point that arises for consideration is whether the order of the District Forum is vitiated by any mis-appreciation of fact or law in that regard?
It is an undisputed fact that the complainant is having account with the appellant ICICI bank having debit card facility to withdraw through ATMs. It is also not in dispute that the debit card issued by the bank bears number 5326661119000011. The complainant alleges that on 24-1-2010 she had withdrawn Rs.2,000/- and a SMS alert was received along with ATM card statement slip. A perusal of the said slip showed that she had withdrawn a sum of Rs.70,000/- on 11-1-2010 in 7 spells between 20.58 Hrs. and 21.21 hours. When she complained to the appellant bank as well as the Customer care centre, it has given a reply under Ex.A1, which we excerpt below for better appreciation.
Dear Ms.Kalyani Further to our email of January, 28,2010, we wish to inform you that based on complaint we matter for the disputed transactions of cash withdrawal from non ICICI ATM.
As a process we have raised a charge back/claim on the acquiring bank for the transactions response to which we have received a valid proof from them indicating that the funds have be dispensed. Also, the card number mentioned on the document provided by them is your card confirm the branch at which we can arrange to sent the documents so that you can view the same.
We understand that video clippings have already been provided to you by Oriental Bank of commerce. You were unable to identify the person making the transaction. We have not received the clipping like to inform you that as per NFS net work operating rules, the Bank whose ATM was used to obligated to provide the CCTV footage to the card issuing Bank.
We would like to state that the transaction disputed by you is a PIN based transaction. The rest the security of the card and PIN lies with the card Member. As soon as the bank is informed of card by the card holder the card is hot listed/blocked at out end to prevent any misuse.
In view of the above, we regret out inability to reverse the funds.
Though the appellant bank had the statement of amounts withdrawn at ATM of oriental Bank of commerce, without even verifying the card number with which the amount was withdrawn, denied its responsibility to reimburse the amount. Evidently Ex.A4, statement of account furnished by Oriental Bank of Commerce shows that the card that was used bears 5326661119000010. On the very same day, within few hours, by using the above number a third party had withdrawn about Rs.70,000/-. The bank did not take up the matter with Oriental Bank of Commerce as to how it could allow the amount to be withdrawn by using altogether a different debit card bearing number 5326661119000010. When the debit card that was given to the complainant bears 5326661119000011, the appellant bank ought to have taken up the matter with Oriental Bank of Commerce to know whether its ATM was faulty.
The contention that the complainant had disclosed her pin number to one of the family member is patently incorrect. Even if she revealed, the card holder of 5326661119000010 could not have withdrawn on the account of the card holder bearing No. 5326661119000011. It intends to get over the transaction though knowing full that she did not part the details to a third party. Moreso, the CCTV footage at the ATM revealed third party withdrawing the amount. It is not the case of the appellant bank that on verification, it was one of the family members or person known to the complainant had withdrawn the amount. There is CCTV footage. It could have taken up with Police.
Police did not allege that the complainant gave a false report. Therefore, the contention that she must have disclosed the confidential pin number for withdrawal of the amount by using debit card cannot be accepted.
The learned counsel for the appellant ICICI bank relied on the decision reported in R.P.No.3182/2008 by Honble National Commission. The decision relied by the appellant counsel is not relevant to the facts of the case. It pertains to the same debit card. We may also state herein, this is a case where with altogether a different debit card, a third party had encashed the amount. It is not that of the complainant. she cannot be fount at fault obviously there is fault in the very programming of the system.
We may state herein that the banks introduced ATMS in order to facilitate the customers to withdraw the amount at whatever time convenient to them. It looks as though the appellant bank is of the opinion that the system is full proof where third parties cannot withdraw the amount without knowing the details like pin number etc. It is still labouring under such a mis-conception. This is a classic case, where the complainant herself a computer expert, could demonstrate, how a third party could withdrew her amount, by using another debit card, obviously a very nearer number to her debit card number. Except the last two numericals rest of the numbers tally.
When sufficient information could be culled out from the credit card number as we can see, it will not be difficult for the hackers to manipulate the system and withdraw amounts. We reiterate that this system is not full proof. The appellant bank ought to have filed the affidavit of the persons, who had developed this programme to demonstrate as to how by using a debit card as in this case allow a third party entering the account of the complainant to withdrawn these amounts. He could have otherwise proved that it is not possible.
We reiterate that the amount was not withdrawn by using the debit card of the complainant. Obviously as no amount was withdrawn by using the debit card, no SMS alerts did go to the complainants mobile. This is still an area where the system is caving in. It has become hacker friendly. It cannot be said that the complainant resorted to a false complaint for a sum of Rs.70,000/-. Having approached the Police as well as bank for the loss of her amount and as they did not investigate into it, she filed the complaint.
It is not a case where she intended to benefit herself. The appellant bank dare not filed any complaint against the complainant for misleading or defrauding the bank in order to gain herself. It is not known why the bank is hesitant to initiate any action either against their programmer on the complaint or the bank where the transaction took place, when photographs of person who withdrew amounts are available taken by CCTV cameras. We doubt the very credibility of the bank in these transactions. The complainant could demonstrate how a third party could withdraw her amount by using his card which has nothing to do with the card of the complainant. Necessary the bank is liable to take whatever action it intended either with opposite party No.3 or its own programmer. So far as the complainant is concerned, it is bound to refund the amount. The District Forum has awarded a sum of Rs.50,000/- towards mental agony for the loss of Rs.70,000/- which we feel is on the higher side. Considering the circumstances and inaction of the bank, we are of the opinion that the complainant is entitled to Rs.25,000/- towards mental agony.
In the result this appeal is allowed in part modifying only the part of order awarding compensation and by reducing the same from Rs.50,000/- to Rs.25,000/-. However, the rest of the order of the District Forum is confirmed. In other words, the appellants are directed to refund Rs.70,000/- together with interest at 9% p.a. from 01-11-2009 till the date of realization together with compensation of Rs.25,000/- and costs of Rs.5,000/-. The complainant is also entitled to costs of Rs.5,000/- in this appeal. Time for compliance one month.
Sd/-PRESIDENT.
Sd/-MEMBER.
.
JM Dt.21-9-2012