State Consumer Disputes Redressal Commission
State Bank Of India vs Ms. Madhu Chawla on 1 March, 2023
FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 31.10.2014
Date of hearing: 01.11.2022
Date of Decision: 01.03.2023
FIRST APPEAL NO.- 1020/2014
IN THE MATTER OF
STATE BANK OF INDIA,
CENTRAL OFFICE AT:
MADAME CAMA ROAD,
NARIMAN POINT, MUMBAI-400021,
LOCAL HEAD OFFICE(S) & ZONAL OFFICE(S)
11, PARLIAMENT STREET,
BRANCH AT GHONDA, DELHI.
(Through: Ms. Jaya Tomar, Advocate)
...Appellant
VERSUS
MS. MADHU CHAWLA,
W/O MR. JOGINDER CHAWLA,
R/O A-31/124, GALI NO. 4,
MAIN MATA MANDIR GALI,
MAUJPUR, DELHI- 110053.
(Through: Mr. Praveen Mahajan , Advocate)
...Respondent
DISMISSED PAGE 1 OF 14
FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Appellant
Mr. Dhiren Gupta, Counsel for the Respondent
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are :
"the complainant is having an account bearing no. 31163503746 with State Bank of India situated at Gamdi Road, Ghonda, Delhi-110053 with ATM facility. It is alleged that on 18-5-12 complainant approached ATM of OP bank for withdrawal of money but failed to operate the card. At the same time some unknown person entered in the ATM booth and asked the complainant that he was in a hurry and would withdraw the money for the complainant and started operating her ATM card forcefully. The password button was pressed by the complainant herself but the money was not disbursed. The complainant approached another ATM of AXIS Bank and inserted the card inside the ATM machine and found that the name on the screen was of some Sh. Girjesh Gupta. Complainant immediately approached OP bank to block the ATM card but no one paid any heed to her and asked her to come in queue which was long. Thereafter complainant came to know that Rs. 40,000/- had been debited from her account before the card was blocked by the bank. An FIR was lodged at police station. That person had also used her ATM card on 22- 5-12 four times. It is pleaded that the OP bank also did not provide the DISMISSED PAGE 2 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 CCTV footage to her and, had the OP bank and the Police seen the CCTV footage, that man could be identified but they did not do so. However, on 25-6-12 PS Bhajanpura was informed by a Bank officer in writing that due to some technical problem the bank was unable to provide the CCTV footage. It is stated that the complainant incurred financial loss due to the negligence of the bank officials. Complaint was also made before ombudsmen but nothing came out. Hence, the present complaint has been filed for refund of Rs. 40,000/- along with compensation."
2. The District Commission after taking into consideration the material available on record passed the order dated 20.2.2017, whereby it held as under:
"The admitted facts are that the complainant had a saving bank account alongwith ATM facility vide ATM no.6220180681800123348 in OP bank; that on 18-5-12 the complainant had gone to the ATM booth of the OP at Ghonda Chowk, and tried to withdraw money from her account, that the complainant could not do so and some other person who was also present in the ATM booth had made an attempt to operate her account and in that process he changed his ATM card with the card of the complainant, and lateron Rs. 40,000/- were withdrawn from her account by doing four transactions of Rs 10,000/- each from Axis Bank. The case of the OP is that the complainant used her ATM card for the first time at 11:12 AM at Ghonda Chowk ATM booth. Copy of TXN report has been filed by the bank which has again not been marked by the bank. Therefore, we now mark it as Mark A as for the purposes of identification. The same shows that one transaction in respect of ATM card in question had been done on 18- 5-12 at 11:12 at Ghonda Chowk ATM booth of the OP. The further case of the OP is that the ATM card of the complainant was used again at 11:23 to 11:25 AM from Axis Bank four times for withdrawal DISMISSED PAGE 3 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 of Rs. 10,000/- on each attempt and Rs. 40,000/- had already been withdrawn during the time of reaching of the complainant from Ghonda Chowk ATM Booth to Ghonda Branch of OP bank. Customer transactions stated to be EX OP5 is reproduced as under:-
From a perusal of the customer transactions slip it becomes crystal clear that the four transactions in respect of the ATM card of the complainant had been done from UTI bank and not from Axis bank. We are not oblivious of the fact that the common case of the parties is that the four transactions of Rs. 10,000/- each stated hereinabove had been done from the ATM booth of Axis bank. However, the OP bank has not disclosed the branch code of the said Axis bank. We don't know whether be a true copy. the branch code of UTI bank that is 06818 shown in the customs transaction slip is infact of Axis bank. This fact creates a doubt about the authenticity of the customer transaction slip stated to be exhibit OP5 which has neither been signed by any official of the bank nor certified to At this juncture the entries made in the passbook of the complainant become very relevant. The complainant has filed a copy of relevant entries of her passbook on 11-3-14 which we now mark as mark B for the purposes of identification. It contains entries of 5 transactions having taken place on 18-5-12 which are as follows:
DISMISSED PAGE 4 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
Thus the four transactions of Rs. 10,000/- each are shown to have been done from ATM 00008 Fateh Singh Marg, Delhi. It further shows that the OP bank had infact "set hold" Rs. 40,000/- on that date after the 4 transactions of The distance from the ATM both situated at Ghonda Chowk and the branch of the OP bank situated at Ghonda Chowk has not been specified by the OP. We do not find any sufficient material before us which may convince us that the amount of Rs. 40,000/- by way of 4 transactions of Rs. 10,000/- each had already been withdrawn before the complainant could reach to OP bank to get her account stopped. It is the case of the OP itself that the complainant was advised by the bank to get the operation of ATM closed by telephone on line and she was given telephone numbers and as a matter of security the operation of her account was stopped by the OP bank. In this regard, we are of the view that the first duty of the officials of the OP bank was to stop the operation of her ATM and only thereafter to advice her to get the operation of her ATM stopped by telephone on line. This shows utter negligence on the part of the officials of the bank. Here, we must say that we are not unmindful of the fact that the PIN number allotted to a customer is personal and secret one and the customer is not supposed to disclose the same to anyone. In case the customer does so, he/she does it on his/her own peril and risk and in case of withdrawal of money from his/her bank account by using his/her PIN number he/she cannot put any blame or liability on the bank. However, there are instances where gullible DISMISSED PAGE 5 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 persons have fallen prey in the hands of the imposters and cheats and these persons prevail over the innocent persons and make them to disclose their personal details for the purpose of cheating. The present case seems to be a case of an innocent and gullible lady, who even could not get any help from the officials of OP bank in time. Admittedly, the OP bank did not provide the CCTV footage of the relevant date and time to the complainant or to the Police only on the ground that due to some technical problem the CCTV camera was not functioning on the relevant date and time. No convincible evidence has been filed on the record to fortify this fact. The E-mail dated 31-5- 12 shows that the OP bank had received a letter from local Police requiring the bank to provide CCTV footage dated 18-5-12 11:00 AM to 11:30 AM of the branch. It was ultimately on 14-6-12 that it was recorded in E-mail that due to hard disk failure the NCR engineer who had gone to the site had failed to take the images as it had got corrupted. Therefore, it was an intentional or unintentional mistake on the part of the OP bank that the CCTV footage of the relevant date and time had corrupted and this was the only reason that the local police could not do the investigation of the criminal case effectively and had to get the FIR cancelled as is clear from the copy of the report filed under section 173 of the Code of Criminal Procedure.
Had the officials of the OP bank taken necessary precautions in maintaining the CCTV footage that man could have been identified and arrested and investigation made from him and the police must have definitely investigated the matter from the point of view whether the money had been withdrawn by him before the complainant could go to the OP bank and make a request to stop the operation of her account or before that. The "set hold" amount of Rs. 40,000/- dated 18-5-12 had been deleted on 22-5-12 as is clear from mark B referred to above. Therefore, we are of the considered opinion that inspite of the complainant herself disclosing or forced to disclose her PIN number to a 3rd unknown person, the OP bank was grossly negligent in not immediately stopping the operation of her account and, hence, facilitated the said 3rd person to withdraw the amount of Rs. 40,000/- from the bank account of the complainant. OP bank was thus guilty of DISMISSED PAGE 6 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 providing deficient service to the complainant. In view of the above discussion, we allow the complaint and direct the OP bank to pay to the complainant Rs. 40,000/- alongwith uptodate interest @ of Rs. 6% p.a. from 18-5-12 till the date of realization and Rs. 10,000/- towards mental harassment and litigation charges within one month from the date of receipt of the copy of the order. File be consigned to record room"
3. Aggrieved by the aforesaid order of the District Commission, the Appellant has preferred the present Appeal contending that the District Commission has erred in establishing deficiency on part of Appellant as the Respondent herself handed over her ATM card and allowed some unknown person to operate her account. It is further argued that by the time the Respondent reached the Branch of the Appellant Bank, Rs.40,000 were already withdrawn from the account of the Respondent. Pressing the aforesaid contentions, the Appellant prayed for setting aside the impugned order passed by the District Commission.
4. The Respondent, on the other hand, has filed the reply to the present appeal wherein in its reply has stated that the Respondent did not give her card to the stranger voluntarily but the card was taken from her possession by way of coercion. Further, it is contended that had the Appellant bank blocked the ATM card in a timely manner, such unauthorised transaction would not have taken place at all. Lastly, it is contended that the even after persistent requests to the bank officials to block her account, the Respondent did not get any help from them nor the Appellant provided the CCTV footage which could have helped in ascertaining the identity of the person who made the unauthorised transactions.
5. We have perused the material available on record and heard the Counsel for Respondent.
DISMISSED PAGE 7 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
6. The only question for consideration before us is whether the Appellant bank was actually deficient in providing its services to the Respondent by not blocking the card in a timely manner and not maintaining the CCTV footage.
7. In the present case, the Respondent has alleged deficiency in service by claiming that her account was not blocked in time by the Appellant bank. The case of the Appellant Bank is that withdrawal of cash is not possible without inserting ATM card and without entering the confidential PIN number given to every customer. Further, the Appellant Bank contended that it is the duty of every customer to keep the PIN number as secret and confidential and not to divulge it to anybody.
8. It is an admitted fact by the Respondent that she entered the PIN herself and kept the card in safe custody until it was fraudulently changed by the unknown person. The Respondent has stated that it was only through coercion that the unknown person intercepted her while she was conducting the transaction at the ATM machine and replaced her card with another one.
9. It is pertinent to mention here that the Respondent reported the said incident to the Appellant Bank and the Police vide complaint dated 18.5.2012. Thereafter an FIR bearing number 193/12 was registered at Bhajanpura Police Station on 19.6.12. Another complaint was made to the Banking Ombudsmen on 04.07.12 but the same was of no avail. Therefore, we concur with the view taken by the District Forum and come to the observation that the present case is one where an innocent citizen susceptible to trickery on account of her old age has fallen prey to misdeeds of miscreants.
DISMISSED PAGE 8 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
10. The Appellant bank has submitted that the amount of Rs. 40,000 was withdrawn from the account of the Respondent well before she reached the concerned branch of the bank and the bank has no liability as such since money was withdrawn before the account could be blocked. However, we do not find any material on record to ascertain the distance from the ATM booth at Ghonda Chowk and the concerned branch of the Appellant bank. Here, we concur with the finding of the District Commission. Moreover, the Appellant has submitted the copy of transaction enquiry (Annexure A-4 with the present appeal) which shows four transactions at 11:23, 11:24, 11:25 and 11:25:44 from ATM of UTI Bank bearing ATM ID no. TPCN1145. Again, we are faced with the question of ascertaining whether the Respondent reached the bank before the withdrawal or after the said withdrawal.
11. To resolve this issue, we deem it appropriate to mention here that the Appellant itself submits that the Respondent was advised by the bank to get the card blocked by telephone on the helpline and she was given helpline numbers to call on. The Respondent in her affidavit has stated that despite persistent requests made by her to the bank officials that her account operations be stopped, she was made to stand in queue and was instead being given number to call on. If Appellant bank would have blocked the said ATM card immediately then no fraudulent withdrawal would have taken place.
12. We are of the opinion that the Respondent being a senior citizen of 63 years of age, cannot be expected to be friendly with advanced technology and smooth with operations requiring technical know- how and finesse. The contentions of the Appellant that merely because the ATM equipment does not accept anything except ATM card and PIN and the DISMISSED PAGE 9 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 PIN is like a password and only in the knowledge of the ATM Card holder does not mean that such withdrawals cannot be made unauthorisedly or fraudulently. Had it been so there would not have been large number of cases of fraudulent withdrawals from the ATM accounts of consumers.
13. The Commission is of the conviction that Service provider like banks have to ensure that no such fraudulent withdrawals take place and to ensure that no such fraudulent withdrawals either through the connivance of the bank officials or by some unauthorized persons every bank is obliged to install CCTV and it was only through these CCTVs that large numbers of banks were able to detect fraudulent withdrawals.
14. It is pertinent to highlight that the primary motive of installation of CCTV cameras in ATM room is the detection of such frauds and to provide aid in ascertaining the identity of the miscreants. We further deem it necessary to refer to the dicta titled as State Bank of India vs. Sansar Chand Kapoor and Ors. (2015) CPJ 135 (NC) where the Hon'ble National Commission has held as under:
"It is an admitted case that CCTV recording was provided by the respondent No. 2-Punjab National Bank to the petitioner State Bank of India but despite request of the complainant a copy of the said video footage was not provided to him. Though according to the petitioner- bank the said video footage was shown to the complainant and his son- in-law when they visited the bank, that in our opinion would not be sufficient and considering the fraudulent withdrawal claimed by the complainant, the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner-bank, therefore, was deficient in rendering services to the complainant, by not DISMISSED PAGE 10 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 making available a copy of the aforesaid CCTV footage to him. For the reasons stated hereinabove the order of the District Forum and the State Commission to the extent the petitioner-bank has been directed to refund the amount of Rs. 10,000 to the complainant along with interest is set aside. However, the order to the extent it awards compensation and cost of litigation to the complainant is upheld."
15. The Hon'ble National Commission in the aforesaid case observed that every bank is obliged to provide a copy of the CCTV complaint to the Complainant and not providing the same shall amount to deficient service on part of the bank.
16. Moreover Section 43-A of the Information Technology Act, 2008 provides that:
" 43A. Compensation for failure to protect data.--Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.
Explanation.--For the purposes of this section,--
(i) "body corporate" means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities;
(ii) "reasonable security practices and procedures" means security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified DISMISSED PAGE 11 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit;
(iii) "sensitive personal data or information" means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.
(iv) a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource, which is owned or controlled or operated by it shall be liable to pay the damages by way of compensation not exceeding five crore rupee to the person to whom loss is caused due to negligent in implementing and maintaining reasonable security practices and procedures.
17. In view of the aforesaid provision, a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource, which is owned or controlled or operated by it shall be liable to pay the damages by way of compensation not exceeding five crore rupee to the person to whom loss is caused due to negligent in implementing and maintaining reasonable security practices and procedures. The Appellant Bank has admitted its failure in providing the CCTV footage to the Police and the Banking Ombudsmen on account of corruption of hard disk. If the CCTV footage before Police or Ombudsman had been DISMISSED PAGE 12 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023 produced, then inference of deficient service on part of the Appellant could not be deduced. However, it is evident from the face of the record that the Appellant distilled and greatly hindered the operation of the investigating agencies in investigating the matter and ascertaining the identity of the miscreant. Had the bank been maintaining the ATM room and the CCTV footage properly, the identity of the miscreant could have been traced. Hence, implementing and maintaining reasonable security practice and procedure could not be established on part of the Appellant Bank.
18. In our opinion, in the absence of CCTV footage, the Bank could not provide the footage in respect of person who actually operated the machine and withdrew the money from her account through the ATM. Even through there is no independent evidence with the Respondent to prove as to who withdrew the money from her account, the fact remains that not only there was negligence in maintaining CCTV cameras in the ATM room but also there was gross negligence on part of the Bank in not blocking the account of the Respondent well in time. Moreover, the Respondent was quite vigilant in immediately bringing the said incident into notice of the Bank officials and also lodging an FIR in this regard.
19. Therefore, we do not find any reasons to reverse the findings of the District Commission. Consequently, we uphold the order dated 01.09.2014, passed by the District Consumer Disputes Redressal, North East, Nand Nagri, New Delhi - 110093. Consequently, the present Appeal stands dismissed with no order as to costs.
20. Application(s) pending, if any, stand disposed of in terms of the aforesaid Judgment.
DISMISSED PAGE 13 OF 14 FA NO./1020/2014 STATE BANK OF INDIA VS MS. MADHU CHAWLA D.O.D. 01.03.2023
21. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
01.03.2023 DISMISSED PAGE 14 OF 14