State Consumer Disputes Redressal Commission
The Zonal Manager, Central Bank Of ... vs .Mr.R.G .Prabaharan, Theni District & 2 ... on 6 November, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present
Date of appeal filed: 19.09.2018
THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
F.A.No.149/2018
MONDAY, THE 06th DAY OF NOVEMBER 2023.
1. The Zonal Manager,
Central Bank of India,
Regional Office, First Floor,
Raja Muthaiah Mandram,
Dr.Ambedkar Road,
Madurai - 625 020. 1st Appellant/1st Opposite Party
2. The Branch Manager,
Central Bank of India,
Nattathi Nadar Hospital Building,
Theni, Theni District. 2nd Appellant/2nd Opposite Party
-Vs-
1. Mr.R.G.Prabaharan,
S/o R.Gowthaman Moorthy,
Plot No.30, Sriram Nagar,
Theni, Theni District. 1st Respondent/Complainant
2. The Branch Manager,
HDFC Bank,
Periyakulam Road,
Theni, Theni District. 2nd Respondent/3rd Opposite Party
3. The Regional Manager,
HDFC Bank,
Regional Office,
96, Prince Kushal Towers, Ground Floor,
Anna Salai, Mound Road,
Chennai-2. 3rd Respondent/4th Opposite Party
Counsel for Appellants-1&2/Opp.parties-1&2 : Mr.B.Rajesh Saravananan, Advocate.
Counsel for Respondent-1/Complainant : Served Called Absent.
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Counsel for Respondent-2/Opposite Party-3 : Mr.A.Jenifer Raja, Advocate.
Counsel for Respondent-3/Opposite Party-4 : Returned as Refused.
Aggrieved by the order passed by the District Consumer Disputes Redressal
Commission, Theni, made in C.C.No.38/2017, dated 07.08.2018 the opposite parties-
1&2/Central Bank of India preferred this appeal. This appeal coming before me for
final hearing on 13.10.2023 and upon perusing the material records, this
Commission made the following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The Facts:
The complainant one R.G.Prabhakaran was a account holder of the first and second opposite parties/Central Bank of India and they were provided with a ATM card. On 27.11.2016 morning 11.29 a.m. the complainant tried to withdraw Rs.2000/- in the ATM maintained by the third and fourth opposite parties/HDFC Bank but the intimation receipt came out as transactions was declined. The complainant again at 11:36 a.m. on verification of the slip found that Rs.2000/- has been debited from his account. He immediately contacted the first and second opposite parties and informed his grievance. Since there is no reply, again he sent request letters to first and second opposite parties on 24.06.2017, and on 25.07.2017. For which no reply was received from the opposite parties. Hence, he filed the complaint seeking to direct the opposite parties to refund of Rs.2000/- with interest and Rs.1,00,000/- towards compensation for mental agony and 3 Rs.1,00,000/- towards compensation for deficiency in service and also Rs.10,000/-
as costs of the proceedings.
2. The first and second opposite parties filed their written version admitting the complainant as their customer. It is their case that after receipt of the grievance they immediately contacted the third and fourth opposite parties/HDFC Bank through common plat form by name Service Desk Manager and addressed the complainant requests. The second opposite party received the communications dated 13.12.2016 that the HDFC bank has reported the "Transactions was Successful". Since the complainant again approached the opposite parties and again service request was made and the same reply has been received by them. Since the third and fourth opposite parties informed the Transactions is Successful there is no deficiency of service on their part and they requested to dismiss the complaint.
3. The same defense has been taken by the third and fourth opposite parties.
4. The District Commission after perusal of the records, evidence, documents marked as Exhibits-A1 to A6 and Ex.B1 finally, allowed the complaint partly directed the first and second opposite parties jointly and severally to refund of Rs.2,000/- and to credit the complainant's account and to pay Rs.5,000/- towards compensation for mental agony and to pay Rs.5,000/- towards compensation for deficiency in service and also to pay Rs.5000/- as costs to the complainant. The District Commission dismissed the complaint against third and fourth opposite parties.
5. Aggrieved with the above order, this appeal has been preferred by the first and second opposite parties on the following:
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Grounds: That, the District Commission failed to see the opposite parties readily reported the grievance to third and fourth opposite parties. The District Commission failed to see that the third and fourth opposite parties are alone liable for any defect in the ATM card sections and wrongly held the appellants- 1&2/opposite parties-1&2 are liable for the above loss of Rs.2000/-. Hence they prayed to allow the appeal.
6. In this case, the appellants/opposite parties alone filed written arguments and their oral arguments were also heard.
7. It is an admitted position that the complainant is a consumer of the first and second opposite parties/Central Bank of India and they were provided with ATM card facility to avail banking service. It is further admitted that the complainant on 27.11.2016 tried to withdraw an amount of Rs.2000/- from ATM which is maintained by the third and fourth opposite parties. The complainant submitted that the receipt came out as transaction was declined. However by subsequent receipt he came to know that Rs.2000/- has been deducted from his account. To prove that this fact he marked Exhibits-A1 and A2. It is the case of the first and second opposite parties that after receiving the grievance request they approached the third and fourth opposite parties through a common plat form and it was informed that the Transactions is Successful.
8. At this juncture this Commission perused the both sides cases and documents. The short question arose for consideration in the appeal is, whether the refusal by the bank to re-credit the alleged withdrawal amount from customer's account through ATM machine amounted to deficiency in service? 5
9. The complainant stated that Rs 2,000/ was not withdrawn by him. On the other hand, the bank has debited that the amount from complainant's account as if it was withdrawn by him. Then, which one is to be true? This Commission faced and dealt with the same and similar question previously. For this question it is necessary to analyze the entire procedures and the technological know how of the ATM banking.
10. The Procedures:
To make it easier and convenient for the public, banking transactions can now be made even without going to the Bank. Banking services are expanded from personal banking to core banking and then further developed to online banking. Now a days the customer of a bank need not enter into the Bank for withdrawal of money from his account. Automatic Teller Machines, ATM in short, are also standing in different areas to disburse money to the ATM cardholders against their accounts. To operate the ATM machine, ATM cards are used which are issued by the concerned Bank to the account holders against their accounts in the Bank. For obtaining money through ATM counter, one has to swipe his ATM Card in the machine, and then to command for paying the required amount following the directions correctly. The machine then dispenses the notes of the said amount from inside. The currencies inside ATM were filled by the banks which installed ATM or else the banks engaged other outside agencies.
11. One need not search for his bank's ATM to withdraw money, he can withdraw money from other banks ATM also for which also charges are deducted from the customer's account. Technology advancement made this possible, as all the banks 6 are inter connected among themselves and also with customer accounts, ATM transactions etc. It is a chain of communications. As per system, all the transactions are recorded both in respect of one's individual account and against each ATM. Whole transactions are held with date and time and the amount given along with the deposit of money to the ATM machine. The ATM machines are guarded by security people and CCTV cameras were fixed inside for safety purposes.
12. While the banking technologies are so advanced, are they foolproof and beyond any defects? The answer is an emphatic "No" The ATM Machines run with the help of electric power as well as Internet services. The machine unable to function sometimes, due to some mechanical defects or want of notes in stock inside the machine, power failure or slow down of Internet connection. These factors can disturb the proper transactions and function of an ATM machine. Against each transaction, the machine provides a slip to the drawee account holder to see about his transaction. Sometimes for any reason, ATM machine does not comply with the command of the customers for which as per system put to it, it expresses "Sorry, unable to process". When emitting of currency is processed inside the ATM machine, the intending amount is debited from the account holder's account. Sometimes the amount which was not delivered again absorbed by the ATM and separately kept in a box or a tray inside bank. Only the person engaged by the bank, who subsequently came to ATM to fill the currencies, can find it out and bring to the ATM account. Sometimes, even after the said amount is debited, the machine may not eject the money, although transaction may appear successful. In that situation, it is generally seen that machine automatically credits the debited amount to the account at the same time from which the amount was debited. If it happens, a bank 7 customer expresses no grievance. But occasionally a customer alleges that though he did not get money from the ATM machine, but the slip coming out from the ATM machine reflects that the amount he demanded has been debited by the ATM machine from his account. Immediately thereafter, he may make complaint to the Branch Manager of the concerned Bank where the account of the customer lies that he wanted to draw some money from the ATM machine, but though the transaction appeared successful and the amount was also debited from his account, practically, he did not get any amount of money from the ATM machine.
13. In this case the complainant alleged that the amount was not withdrawn by him but entries made as if the amount was debited from his account. The customer/complainant immediately reported this matter to the bank, the opposite parties. At this juncture is it sufficient for the bank to say simply, that the amount was shown as withdrawn in the personal pass book entry as well as Statement of account, or else, what was their obligations and expected duties from them in this respect?
(i) The service provider/customer's bank immediately called and informed this fact to the bank or to the outsource agency who maintained the ATM.
(ii) The customer's bank must rule out mechanical defect in the ATM at the relevant time.
(iii) The customer's bank must ascertain the power connection and internet connectivity was proper at the time.
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(iv) The customer's bank must ascertain that the amount was not absorbed again by the ATM by enquiring the person who filled the currencies subsequent to the transaction that no amount was found in the box or tray.
(v) The customer's bank must ascertain that there was no ATM card fraud such as card shimming, card skimming, card, jamming etc.
(vi) The customer's bank must immediately gone through the CCTV footage and ascertain the amount was taken out by the customer alone.
(vii) They ought to have referred the matter to Bank Ombudsman or other Inter dispute management system.
14. Here the opposite parties/the bank, did not do anything mentioned above except intimated through a common platform. While the customers keeping their hard earned money with the banks, the banks acted as their agents and trustees. They must assure and take necessary care for the safety of customers money. While a complaint was made about an unauthorized deduction, the opposite parties banks should act swiftly to ascertain the real facts and offer a satisfactory reply to the complainant. They not only failed to respond swiftly but also failed to reply properly to the complainant in this case. Even they failed to satisfy this commission that they took proper steps to resolve the issue. Even they failed to explain why CCTV footage or the hard disc were not examined immediately by ascertaining the fact of transaction. They failed to make a complaint to the police since the complainant's money was swindled while the money was on their hand. Actually they are the competent person to inform the police about the disputed withdrawals. Not only they omitted to complain but shifting this burden upon the consumer. Those 9 failures, commissions and omissions on the part of the opposite parties banks clearly proved their deficiency in service. Apart from it, the observation of the National Consumer Disputes Redressal Commission in T.N. Ravi Prakash -Vs- The Manager, State Bank of Mysore.on 8 June, 2018 is that "From the above examination, I reach to the conclusion that even if the JP log are to be believed to be true and the money has been withdrawn by using ATM card there is deficiency on the part of the bank for not producing the video footage of this date. Accordingly, it is not possible to confirm the assertions made by the opposite party bank with respect to withdrawal from ATM by using ATM card of the complainant, particularly when there were more similar cases as observed the District Forum and when the respondents bank has not properly investigated the matter. In this way, clearly the opposite parties bank is deficient in its service for not maintaining and providing video footage of this date ATMs and for this deficiency atleast, the complainant is entitled to get compensation." It is also relevant and supported this Commission views.
15. Another important fact is, the Reserve Bank Of India issued a Circular bearing Reference Number:- RBI/2017-18/15,DBR.No. Leg.
BC78/09.07.005/2017-2018, dated July 6, 2017, Page No.5, Table 2, states that the Bank customer has zero liability if the incident is reported to the bank within 3 working days and the transaction value of the amount if reported within 4 to 7 working days and beyond 7 working days as per Bank's approved board policy. The RBI Circular of 2017 10 whose heading is CUSTOMER PROTECTION - LIMITING LIABILITY OF CUSTOMERS IN UNAUTHORISED ELECTRONIC BANKING TRANSACTIONS, some other provisions have also come to light before this Commission which are as follows:-
Rule 12. Burden of Proof:- The Burden of Proof of proving customer liability in case of unauthorized electronic banking transactions shall lie on the bank.
Rule 9. Reversal timeline for Zero Liability/ Limited Liability of Customer:- On being notified by the customer the bank shall credit (shadow reversal) the amount involved in the unauthorized electronic transaction to the customer's account within 10 working days from the date of such notification by the customer (without waiting for settlement of insurance claim if any). Banks may also at their discretion decide to waive off any customer liability in case of unauthorized electronic banking transactions even in cases of customer negligence. The credit shall be valued dated to be as of the date of the unauthorized transaction.
Rule 10. Further banks shall ensure that:
(i) A complaint is resolved and liability of the customer, if any established within such time, as may be specified in the bank's board approved policy, but not exceeding 90 days from date of receipt of the complaint, 11 and the customer is compensated as per provisions of paragraphs 6 to 9 above;
(ii) Where it is unable to resolve the complaint or determine the customer liability, if any, within 90 days, the compensation as prescribed in paragraphs 6 to 9 above is paid to the customer; and;
(iii) In case of debit card/ bank account, the customer does not suffer any loss of interest, and in case of credit card, the customer does not bear any additional burden of interest.
16. Therefore it is clear from the above that the law laid down by the controlling body of the opposite parties namely The Reserve Bank of India envisages an early disposal of the dispute in these kind of electronic unauthorized transactions within a period of 90 days as per Rule 10 stated above. But the opposite parties have not followed the circular of RBI. In every respect the opposite parties/bank have committed deficiency of service. The District commission also came to a correct finding and passed an award. Further there is no appeal by the complainant against the dismissal with respect to third and fourth opposite parties and that become also final. So there is no infirmity which warrants this Commission's interference.
17. So, this Commission hereby confirmed the finding and award of the District Commission. So, in every respect this Commission also confirmed the order of the District Commission and the appeal is dismissed. This Commission also awarded 12 further cost of Rs.5000/- to the complainant in this appeal and answered the point accordingly.
18. In the result,
1. The appeal is dismissed.
2. The order passed by the District Commission, Theni, made in C.C.No.38/2017, dated 07.08.2018 is hereby confirmed.
3. The appellants-1&2/opposite parties-1&2 are directed to pay further cost of Rs.5000/- to the 1st respondent/complainant in this appeal.
Sd/-xxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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