State Consumer Disputes Redressal Commission
Virendra Kumar Pandey vs Punjab National Bank Ltd. on 31 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
CONSUMER COMPLAINT NO. 02 / 2011
Sh. Virendra Kumar Pandey S/o Sh. Babu Ram Pandey
R/o 21 Siddharth Enclave, G.M.S. Road, Dehradun
....... Complainant
Versus
1. The Punjab National Bank Ltd.
Through its Chief Manager
Sh. Sandeep M. Khanwalker
Branch Office: Nari Shilp Mandir
Tagore Villa, Dehradun-Uttarakhand
2. Chairman / Managing Director
Punjab National Bank Ltd.
Head Office: 7 Bikaji Kama Place, New Delhi
3. Chief Manager (Presently Sh. S.N. Rout)
ATM / Debit Card
Punjab National Bank Ltd.
H.O.: 5 Sansad Marg, New Delhi
......Opposite Parties
Sh. Atul Singh Pundir, Learned Counsel for the Complainant
Sh. V.K. Gupta, Learned Counsel for the Opposite Parties
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 31/05/2017
ORDER
(Per: Mrs. Veena Sharma, Member):
The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite parties for Rs. 16,11,108/-, as the complainant's rightful money and for compensation of Rs. 6,00,000/- as the expenses incurred by the complainant and mental agony and loss suffered.2
2. The facts of the consumer complaint are that the complainant Sh. Virendra Kumar Pandey had opened an NRE account No. 4040000500079153 with the Punjab National Bank, Branch Nari Shilp, Dehradun-opposite party No. 1. At the time of opening the said account, the complainant was assured by the bank and its employees that all transactions either manual or electronic are fully secured and there was absolutely no possibility of any risk involved in the money deposited by the complainant in the bank-opposite party No. 1. The complainant was issued an ATM debit card having No. 5048848881013243707 in connection with his account and on enquiry with the bank's manager, the complainant was personally assured that all card based transactions carried very high levels of security and that usage of the said card by the complainant would be completely secured and safe. On the assurances given by the bank and bank employees, the complainant accepted the above said debit card issued by the bank. The complainant is employed with M/s Transocean Drilling Company and during the period starting from October, 2009 till present date, he was posted at Mumbai High. In October, 2010 when the complainant arrived on port in India, he reached Dehradun and on 14.10.2010 at 17:37hrs. and visited the Kaulagarh Road ATM branch of the opposite party No. 1's bank to withdraw some money for his personal use and to utter shock of the complainant, the ATM machine brought to the notice of the complainant that the complainant's bank account was approximately Rs. 14 lakhs short of what had to be in his account. The complainant's ATM transaction slip dated 14.10.2010 is enclosed and details of money withdrawals received by the bank are enclosed. The complainant immediately contacted the bank and enquired about the matter. He was informed by the bank that cash withdrawal transactions ranging between period from 20th August, 2010 to 14th October, 2010, were done from various ATM machines, located in London. The complainant later came to know that a total of Rs. 16,11,108.68ps. was illegally withdrawn from his account. The bank also informed the complainant that the withdrawals were being made from some card No. 8844040010026599.
3It is pertinent to mention that the complainant has never visited London ever in his life, nor has any of the complainant's family members/relatives visited England ever. The complainant has never handed his debit card into the custody of another ever in the past or at present. Even on the present date, the disputed card is within his custody. The complainant duly informed the bank that during the above said period, he was posted in Bombay High on the seas and during this time he had no internet banking facility nor did he have facilities of mobile phone banking. The concerned authorities at the bank again assured the complainant that they were enquiring into the matter. On 18.10.2010, the complainant made a written complaint stating that his money was withdrawn from the bank and lodged a criminal complaint at Kotwali Police Station on 17.10.2010. After a long time had passed and the opposite party bank had yet not done anything to resolve the issue, the complainant again made a written complaint through e-mail with the bank. The complainant had made several repeated requests with the opposite party bank for acquiring video footage of the fraudulent money withdrawals, but he has not been provided with any information with regard to the withdrawals till date. The opposite party bank was the custodian of the complainant's money and is liable to refund his money alongwith all incidental damages and losses to the complainant. So due to lapses in the security system of the bank and due to inadequacy of service and safety on the part of the opposite parties, the complainant has suffered enormous mental and financial damage for which the opposite parties are liable to compensate the complainant. The complainant is a consumer, as defined under the Consumer Protection Act. There exists a deficiency in service and serious lapses in security on the part of the opposite parties.
3. The opposite party No. 1-Punjab National Bank has filed written statement on behalf of all the opposite parties and has pleaded that the consumer complaint is wrong, erroneous and denied. Punjab National Bank is a renowned public sector bank of India having robust IT infrastructure and foolproof security. The answering opposite parties 4 cannot be held liable for any fault or fraud or carelessness of the complainant or any other customer. In para No. 3 of the written statement, the answering opposite parties accepted that the account of the complainant was opened by the bank after obtaining necessary documents required for opening the account. The answering opposite parties stated that money deposited in the public sector banks is fully safe and there is absolutely no risk involved in security of the money deposited in the banks subject to the condition that the customers do not indulge in any fraudulent activities or any fault which may be attributed to their own carelessness. In para No. 5, the opposite parties denies all the contentions of the para No. 5 of the complaint, only it is admitted that ATM card bearing No. 5048848881013243707 was issued to the complainant by the bank. Rest of the allegations made under the same para are not admitted. It may be pertinent to mention that the complainant was issued another ATM card also bearing No. 8844040010026599 in his name. The fact of which has not been disclosed by the complainant which makes the fraud and malafide intentions of the complainant. There was no question of giving any personal assurance by the bank's manager to the complainant regarding all transactions carrying very high level of security. All the ATM centers and booth / kiosks of the bank or the bank's associates were also secured and safe and at each ATM machine also had a security camera installed in them, so as to ensure the highest level of security. In para No. 7, the answering opposite parties stated that in this case money can be withdrawn by anyone using ATM card and correct PIN and loss, if any, is attributed to the negligence of the complainant. In para No. 8, it is stated that it is important to point out that PIN is known only to the complainant and not even to answering opposite parties. The only way to withdraw money from the ATM is to swipe in the card and enter the unique PIN and then only the ATM machine dispenses the money. It is clear that money cannot be withdrawn from any ATM machine without supplying it the correct PIN. The answering opposite parties denied that the complainant has given the information regarding withdrawal of money through ATM card 5 No. 8844040010026599. The fact, as was conveyed to the complainant is this that the money was withdrawn only through ATM card No. 5048848881013243707 and not through card No. 8844040010026599. According to written statement, para No. 10 of the complaint has no relevance, hence denied. It hardly matters whether the complainant ever visited London in his life or has any of his family members visited England ever. Copy of complainant's passport has absolutely no relevance with the alleged withdrawals from his account through ATM. When the complainant approaches the bank with a complaint, he is properly attended by the bank and assurance is given to him to look into the matter. In this case, the complaint was received by the bank and the same was forwarded to the concerned department of head office of the bank and upon investigation. In para No. 16, the opposite parties submitted that there is no question for the bank to compensate the complainant for any so called illegal withdrawals from his account. There are no lapses in the security system of the bank. It is emphatically wrong and denied that due to inadequacy of service and safety on the part of the opposite parties, the complainant has suffered enormous mental and financial damage for which the opposite parties are liable to compensate the complainant. The money withdrawn through ATM was not due to any laps of security system of the opposite parties-bank. In additional pleas, the answering opposite parties have pleaded that the present complaint does not fall within the prescribed pecuniary limits of the State Consumer Commission, moreover the present matter as alleged by the complainant himself is at best of fraud and forgery and of criminal nature and the State Consumer Commission does not have the necessary jurisdiction to conduct the extensive inquiry or trial. All withdrawals, made from the account of complainant, were within his knowledge. The complainant had accepted all the terms and conditions before issuing debit card to him. There has been no negligence, security lapses in service on the part of answering opposite parties. So there is no substance in the complaint and it merits dismissal with cost.
64. The complainant has filed rebuttal/reply to the opposite parties' written statement, wherein averments made in complaint have been reiterated and the averments of written statement have been denied.
5. In support of allegations in the consumer complaint, the complainant-Sh. Virendra Kumar Pandey has filed detailed affidavit in evidence and the averments of complainant were also reliable. Complainant has also filed documentary evidence in support of their case. Details as per:- a) copy of ATM card; b) copy of ATM slip; c) copies of ATM transaction details; d) copies of complainant's ID proof; e) copy of letter dated 18.10.2010 to PNB Circle office; f) copy of letter dated 18.10.2010 to SSP, Dehradun; g) copy of FIR; h) copies of e-mails (paper Nos. 10 to 30) and copy of certificate dated 08.02.2011 (paper No. 35).
6. Opposite parties have filed an affidavit of Sh. B.S. Rawat, Sr. Manager, Punjab National Bank, Branch Narishilp Mandir Marg, Tagore Villa, Dehradun. On oath, deponent has stated that he has read the consumer complaint and affidavit dated 31.01.2012 filed by the complainant. There is no least possibility of any withdrawal from any account by using any unauthorized or illegal ATM card or by not providing correct secret PIN. The PIN is known only to customer unless and until it is made known to others negligently, otherwise it cannot be known to others by any means. The complainant has alleged fraud committed with him, to prove the same it needs elaborate documentary and oral evidence and, thus, the State Consumer Commission has no jurisdiction to hear and decide the above complaint. All the nationalized banks including Punjab National Bank are in banking business since long and have great reputation and good will in dealing with their customers and takes all precautions as may be required in ordinary course of business. The complainant himself is a well-educated person and engaged in some foreign drilling company and he is also quite aware and have knowledge of software / information technology knowledge. The opposite parties have highest level of security 7 in their information technology services. Contents of para No. 8 of complainant's affidavit, is totally false that the deponent had visited on 14.10.2010 at ATM, Kaulagarh Road to withdraw some money. In fact the complainant had used his ATM card for ulterior motive, he had not withdrawn any amount on 14.10.2010 from ATM Kaulagarh, Dehradun and it is also false that the ATM card brought to the notice of the complainant that the complainant bank account was approximately Rs. 14 lacs short / cash. The deponent's ATM transaction slip filed by the complainant do not show any withdrawal of money on the above date. It is false that the bank had informed the complainant that the withdrawal were being made from some card No. 8844040010026599. The complainant had two ATM cards, first card No. 8844040010026599 and second card No. 5048848881013243707. It is pertinent to note that the complainant had used the previous ATM card on several occasions from 25.08.2006 to 03.12.2007 and it was also used at various places. The complainant has not come with clean hands before this Commission. He deliberately concealed that he hold another card No. 8844040010026599. There was no lapses in the security system of the bank and no inadequacy of service and safety in the system. If the complainant had suffered any loss, for the complainant's negligence is responsible. It is very strange that the complainant had operated the said account just before 20.08.2010 regularly, but from 20.08.2010 to 14.10.2010 did not operate, for the reasons known to him. The complainant had failed to disclose whether he ever viewed his account or the passbook was updated between the alleged period. It appears that either the complainant is himself involved in the fraud or due to his negligence and carelessness, he shared his ATM secret details to someone else. For this details cross examination regarding his whereabouts and activity is necessary, but which is possible in regular suit. Thus, when such intricate enquiry and evidence is required, this Commission has no jurisdiction in this matter.
87. An another affidavit of Sh. Amit Kumar Puri, Sr. Manager, IT Department Punjab National Bank, Circle, Dehradun has been filed on behalf of opposite parties, wherein the deponent has submitted that there is no least possibility of any withdrawal from any account by using any unauthorized or illegal ATM card or by not providing correct secret PIN. The PIN is known only to consumer, unless and until it is made known to others negligently, otherwise it cannot be known to others by any means. As per Transaction Inquiry Chart, on 04.10.2010, twice wrong PIN was used, so the transaction was failed, third time the correct PIN was used and the transaction was successful, which clearly proves that confidential PIN was shared by the complainant with some person, so the consumer himself was responsible for the same. There was no lapse in the security system of the Bank and there was no inadequacy of service and safety on the part of Bank. He further submitted that it is highly improbable that the complainant had not checked his account earlier than 14.10.2010 because he himself had operated his account by making payment on 11.06.2010, 24.06.2010, 06.08.2010, 16.08.2010 & on 21.08.2010. The complainant had also made enquiry regarding balance on 21.08.2014. If any fraud has been committed with the complainant, it was due negligence of the complainant himself and the opposite parties are not responsible for the same and the complaint of complainant is liable to be dismissed.
8. We have heard learned counsel for the parties and perused the material placed on record.
9. Learned counsel for the complainant has vehemently argued that there was gross negligence on the part of the opposite parties bank. It is the case of card skimming / cloning. He widely explained how skimming or cloning takes place. Skimming and cloning frauds, where bank customers lost money in unauthorized ATM withdrawals without even using the ATM and without ever losing sight of their ATM cards. As the fraudsters put skimming devices inside the debit card slot of ATM machines, which reads 9 data from debit cards. There is also a small camera set up at the machine's keypad, so that the fraudsters can know the PIN number entered by users. The data so collected by the skimming machine and the camera is removed and loaded onto a computer software, which writes it on cloned or duplicate cards, which are then used to make unauthorized transactions without any knowledge of the genuine card-holder, when the genuine card is always in the possession of the genuine card-holders.
10. Fraudsters generally target the ATMs, which are left unguarded by the banks or are guarded by untrained / uneducated security guards or ATMs not fitted with CCTV cameras, which shows great carelessness of the opposite parties bank.
11. In support of his contention, the complainant has filed a citation in Revision Petition No. 2667 of 2014; State Bank of India vs. Dr. Subhash Chander (NCDRC). In the said case, the complainant has established his case that he had never gone to USA and even filed a certificate dated 27.12.2012 from the department of Animal Husbandry and Dairying Haryana certifying that Dr. Subhash Chander, who is the complainant herein, is working as Veterinary Surgeon and was regularly attending his duty without any absence for the last one year. The case in hand is similar to the case cited by the complainant, as in this case, the complainant had never gone to London, Great Britain and he also filed certificate of his department to prove that during the transactions he was in his job.
12. Contrary to this, learned counsel for the opposite parties Bank apprised this Commission that the complainant is misguiding the Commission. The complainant himself has handed over the ATM card to his one of the family members or relatives. There is no negligence or carelessness on the part of opposite parties. He further stated that the complainant has not disclosed this fact that he was bearing another ATM debit card also. In support of his contention, learned counsel for the 10 opposite parties has placed reliance on Revision Petition No. 2479 of 2008; UCO Bank vs. S.D. Wadhwa (NCDRC) and this Commission's judgment in the case of Yogendra Mohan Shukla vs. State Bank of India and another, decided on 03.11.2014. Both the citations filed by the opposite parties relates to forge signature in cheque, which needs detailed examination, volumetric record and hand-writing expert's evidence. The complaint in hand is a case of cyber-crime - cloning of ATM card. In the present case, the opposite parties never co-operate the complainant in any investigations and complainant has proved that his ATM was in possession. So these citations do not help the opposite parties-Bank.
13. Another citation cited by the learned counsel for the opposite parties in Revision Petition No. 3973 of 2014; Raghabendra Nath Sen and anr. vs. Punjab National Bank (NCDRC). The facts of the cited case and case in hand are different. The citation filed by the opposite parties was decided on two points, i.e. (1) ATM PIN was disclosed by the ATM card holder, and (2) The complainant has not lodged complaint immediately. But in the present case, the customer never disclosed his ATM PIN. ATM card was in his possession and he immediately informed the opposite parties Bank for fraudulent transactions. Thus, the said citation also does not help the opposite parties.
14. After going through the detailed study of the present case and by a perusal of the documents before us and written statement and written arguments advanced by the counsel for the parties, this Commission has to consider the following points:-
Firstly, as the opposite parties have alleged that the complainant has not disclosed the fact about another ATM card bearing No. 8844040010026599, which was issued to the complainant in the year 2006. According to the complainant, he returned the said ATM card to the opposite parties Bank on 20.06.2006, to issue a new card in place of damaged card and to block his damaged card. The opposite parties 11 themselves stated in para No. 9 of the written statement that money was withdrawn only through ATM card No. 5048848881013243707. So if the complainant did not disclose the fact regarding ATM card No. 8844040010026599 does not affect the facts of the case, because the transaction took place from the complainant's account has been done through card No. 5048848881013243707 and it is evident that his previous ATM card No. 8844040010026599 has no significance to relate the above transactions.
Secondly, all the transactions were conducted in London and the complainant or his family members have never visited London. As evidence the complainant has filed photocopy of his passport. After perusal of the passport, it is evident that the complainant has not issued any visa for London.
Thirdly, after receiving the complaint from the complainant, what steps for investigation had been taken by the opposite parties. In para No. 12 of the written statement, the opposite parties stated that in this case, the complaint was received by the opposite parties Bank and the same was forwarded to the concerned department of head office of the bank for investigation. After perusal of the documents, we do not find any such investigation report or any proceeding for investigation.
Fourthly, in para No. 20 of the written statement, the opposite parties Bank stated that the complainant had operated the said account just before 20.08.2010 regularly, but from 20.08.2010 to 14.10.2010 the complainant did not operate the said account, for the reasons known to him. According to the complainant, during this period he was posted at Bombay High. The complainant has filed a copy of working certificate dated 08.02.2011 for the disputed period at paper No. 35. Contrary to this, the opposite parties Bank did not file any evidence to support their contention.
Fifthly, the account of the complainant has ATM debit card facility. Between the dates 20.08.2010 to 14.10.2010 some known person illegally withdrawn Rs. 16,11,108/- from the complainant's bank account. The complainant informed the bank immediately after coming to know about 12 the said transaction. The complainant himself lodged FIR on 19.10.2010 at Thana Kotwali, Dehradun. No complaint or FIR was lodged by the opposite parties Bank, rather complainant has sent a reminder through e- mail on 27.12.2010 regarding enquiry about the loss of his money from his NRE account No. 4040000500079153, where he enquired about suspected fraudulent transaction from his account. Despite repeated e-mail sent to Cyber-Crime Cell of Punjab National Bank about complainant's pending investigation, the opposite parties Bank never replied or gave any satisfactory answer to him. It seems that the case was not thoroughly investigated by the Cyber-Crime Cell, which shows gross negligence on the part of opposite parties.
Sixthly, in the affidavit of Sh. Amit Kumar Puri, Sr. Manager, IT Department Punjab National Bank, Circle, Dehradun has averred that it highly improbable that the complainant had not checked his bank account earlier than 14.10.2010, because he himself had operated his account on 11.06.2010, 24.06.2010, 06.08.2010, 18.08.2010 and on 21.08.2010. The complainant has also made an enquiry regarding balance on 21.08.2014. The opposite parties have not filed bank statement regarding operation of the account or enquiry of balance on 21.08.2014, because fraud transaction had been started from 20.08.2014. It could be a strong evidence in support of opposite parties Bank, if it was filed.
Seventhly, the complainant has demanded for CCTV footage from the opposite parties Bank, but there is no evidence that the opposite parties Bank ever done any correspondence or asked for CCTV footage from the concerned authorities of London.
15. From the perusal of the record and documents filed by both the parties and having heard learned counsel for both the parties and going records of the complainant, we are of the view, that the complainant has proved that on 14.10.2014 he used his ATM-debit card No. 5048848881013243707 at opposite parties' ATM at Kaulagarh Road, Dehradun at about 17:37 hrs. Yet the amount was again withdrawn from 13 the ATM situated in London at about 15:16:37hrs on the same day. It proves that the complainant's ATM card was in his possession, while he was in Dehradun. It was not possible that within difference of five hours an another transaction was done in London by the same ATM card. Opposite parties never rebutted this fact. ATM debit card was always in his possession. Opposite parties Bank has not proved that the complainant was indulged in any fraudulent activities or any fault of the complainant, which may be attribute to his own carelessness. This is a perfect example of card cloning / duplicate card, which shows failure of opposite parties' security system. The opposite parties have not investigated the case properly and never asked CCTV footage from the concerned authorities in London. The opposite parties Bank never diligently acted on customers' complaint that filed on 20.10.2010. It itself raises question on banks' security systems.
16. In view of the discussion made in forgoing paragraphs, we are of the view that there is deficiency in service on the part of the opposite parties Bank. Considering the aforesaid deficiency in service on the part of the opposite parties rendered to the complainant since security system was not proper, therefore, we direct the opposite parties Bank to pay a sum of Rs. 16,11,108/- together with interest @ 6% per annum, from the date of filing the consumer complaint till the date of actual payment and Rs. 5,000/- towards litigation charges to the complainant, within one month.
17. Accordingly, the consumer complaint is partly allowed. The opposite parties are directed to pay to the complainant a sum of Rs. 16,11,108/- together with interest @ 6% per annum from the date of filing the consumer complaint till payment and Rs. 5,000/- towards cost of litigation within 30 days from the date of order.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)