State Bank of India vs Subhash Chander, (Dr.)

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), is to order dated 7.3.2014 in Appeal No. 735 of 2013 passed by the State Consumer Disputes Redressal Commission, Haryana (for short “the State Commission”). By its impugned order, the State Commission allowed the Appeal preferred by the Complainant and set aside the Order of the District Forum directing the Bank to pay an amount of 1,27,447.64/- to the Complainant with interest at the rate of 9% per annum from 28.6.2012 till the date of realisation, together with compensation of 7,000/- and costs of 1,000/-.

The brief facts as set out in the Complaint are that the Complainant was having a Saving Bank account bearing No. 1044803252 with the Respondent Bank and has been issued SBI Gold ATM Card No. 4283760570000017, which he was using for his personal purpose and had kept the password secret. He also got the SMS Alert service enabled to be kept informed about the transactions.

The Complainant had used his ATM card last on 25.6.2012 at about 4.00 P.M. when he withdrew an amount of 10,000/-. On 29.6.2012, when the Complainant went through his account status through online banking, he noticed that purchases amounting to 1,27,447.64/- were made from his ATM Card. He immediately informed the Respondent Bank in writing, which was received by them on 30.6.2012 and an email was also forwarded by the Bank official to the head office seeking details of the place where such transactions had taken place.

The Complainant averred that the transactions had taken place in Newport Town in USA, whereas he had never been to USA and had even shown his ATM Card to the Bank Officials to evidence that it was very much in his possession as on the date of cause of action. A police complaint was also lodged on 1.7.2012. Thereafter, the Complainant had written on 10.7.2012 and on 17.9.2012, requesting the Bank to recover the amount of the Complainant. An email dated 18.9.2012, by the Respondent Bank, addressed to the higher authorities’ shows that the amount had not been transferred to the merchant and in spite of this knowledge, the Bank did not stop the transfer of this amount even when the Complainant had already reported the matter and lodged a Complaint with the Police. Despite several requests and representations, the Bank did not take any steps to settle the matter. Hence, the Complaint seeking direction to the Respondent to reimburse amount of 1,27,447.64/- with interest @ 18% p.a.; compensation of 50,000/- and costs of 11,000/-.

The Respondent Bank filed their written version admitting that a Complaint had been received by them from the Complainant mentioning that some culprit had purchased goods worth 1,27,447.64/- from his ATM and has also lodged complaint with Police Station, Hisar. It is averred that the police had to investigate the matter and apprehend the actual culprit and that there was no deficiency in service on the part of the Respondent Bank. On receiving the Complaint, the Bank immediately forwarded the complaint to the Complaint Management System for necessary action and the Complainant was informed about all the steps taken. The Bank denies that there was any lapse on their behalf and submitted that there was no deficiency of service on their part.

The District Forum, based on the evidence adduced, dismissed the complaint on the ground that though a fraud had been committed on the Complainant and the amount was disbursed to the merchant, much after the issuance of the Complaint; the email placed on record reveals that VISA had transferred the money after verifying from the merchant if there was any defect and therefore, fault, if any, is on behalf of VISA, for which the Respondent Bank cannot be made liable.

Aggrieved by the said Order, the Complainant preferred an Appeal before the State Commission. The State Commission, observed as follows:- “ 10. Learned counsel for the Bank has referred to the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.3182/2008, State Bank of India v. K.K. Bhalla, decided on April 7 ,2011. 11. In the aforesaid judgment, it was observed by the Hon’ble National Commission that the procedure involved by the Bank is to ensure that without the ATM, it is not possible to withdraw the money by an unauthorized person from the ATM. In the present case, the transactions were made by purchasing items in USA and all the transactions were signed in different hands, so, no benefit can be derived by the Bank from the authority referred to. The contention of the learned counsel for the respondent is not tenable because at the time of fraud, the ATM card was with the appellant. Not only this, all the transactions were made by purchasing items and the signatures mentioned on the transactions were in different hands. 12. In view of the above, it is held that the appellant is entitled to the amount debited to his account on June 28th 2012 in United State of America by fraudulent transactions”.

The learned counsel for the Revision Petitioner contended that unless pin number is given, the ATM card cannot be used and that it is for the Police to investigate the matter. The Counsel relied on the User’s Manual of State Bank Cash Plus ATM-cum-Debit Card, in which it is stated that after receiving the card, the card holder is requested to sign immediately on the signature panel on the reverse of the card to prevent any misuse and that the pin number should not be shared with any one and the same pin number can be used to purchase goods or withdraw money at Merchant’s Establishments. The learned counsel also relied on the decision of this Commission in R.P. No. 3182 of 2008, in which this Commission held that without ATM Card and the knowledge of the Pin number, it is not possible for the amount to be withdrawn and that the lower Fora had allowed the Complaint on the basis that the CCTV footage was not made available by the Bank. In the instant case, the facts are different in the sense that transactions had taken place in USA and the ATM card was very much in the possession of the Complainant herein.

Learned counsel for the Respondent/Complainant submitted that he had never visited USA and these transactions had taken place in Newport, USA and that he never shared his pin number with any one.

A brief perusal of the details of the disputed transactions reads as follows:

Txn. date

Place of Txn.

Amount (Rs.)

28.06.2012

Newport

18,016.97

28.06.2012

Newport

17,453.80

28.06.2012

Newport

17,453.80

28.06.2012

Newport

23,597.54

28.06.2012

Newport

13,874.02

28.06.2012

Newport

19,597.71

28.06.2012

Irvine

17,453.80

TOTAL

1,27,447.64

It is not in dispute that all the transactions had taken place in USA. The Revision Petitioner/Bank did not deny in their written statement the averment of the Complainant that he had shown the ATM card to the Officials to establish the fact that it was in his physical possession at the time of cause of action. The learned counsel for the Revision Petitioner drew the attention of the Bench to the email dated 30.6.2012, wherein the Complainant stated that he had used his ATM Card on 25.6.2012. He submitted that it was a local card which was used on 25.6.2012 and it was not known as to how the Complainant came to know about the other transactions. This contention is unsustainable on the ground that the details of the disputed transactions with the respective dates was taken by the Complainant from the online Banking account.

The first complaint, which copy was received on 30.6.2012, addressed to the Branch Manager, SBI, NGM, Hisar reads as follows: “ To Branch Manager, SBI, NGM, Hisar Sub: Fraudulent transaction from my Saving Account No.10440803252. Sir, It is submitted that I am an account holder in your branch with the above cited account. On 28th June, 2002 my account has been debited a number of transactions amounting Rs. 127447.64 which I never operated. The details of transactions are as under:

Txn Date

Description

Amount (Rs.)

28-Jun-12

POS PRCH-POS 218000618634 MACY''S EAST

528 NEWPORT

18,016.97

28-Jun-12

POS PRCH-POS 2180006389380 MACY''S EAST

528 NEWPORT

17,453.80

28-Jun-12

POS PRCH-POS 218000626369 MACY''S EAST

528 NEWPORT

17,453.80

28-Jun-12

POS PRCH-POS 218000399428 MACY''S EAST

528 NEWPORT

23,579.54

28-Jun-12

POS PRCH-POS 218000633681 MACY''S EAST

528 NEWPORT

38,874.02

28-Jun-12

POS PRCH-POS 218000638806 MACY''S EAST

528 NEWPORT

19,579.71

28-Jun-12

POS PRCH-POS 218002358867 MACY''S EAST

530 IRVINE

17,453.80

Last time I used my ATM card of this account on 25.06.2012 around 4.00 PM at SBI Patel Nagar Hisar Branch ATM, after this I did not use my ATM. Moreover, I did not receive any SMS alert regarding these transactions. Therefore, you are requested to look into the matter immediately and credit my account with this debited amount of Rs. 127447.64. Sd/-/29.06.2012 Dr. Subhash Chander 466 Sector 15-A, Hisar Mobile : 9416474504 Sd/- Branch Manager, State Bank of India New Drain Market, Hisar - 05700"

Letter dated 10.7.2012 and email dated 27.7.2012 written by the Complainant read as follows: ----------------Forwarded message----------- From Subhash Chander subhvet@gmail.com Date:Tue, Jul.10, 2012 at 4.36 PM Subject: Regarding ILLEGAL TRANSACTIONS from my Saving Account No.10440803252 amounting Rs. 127447.64/- To: sbi.05700@sbi.co.in Cc: fssl.ase@sbi.co.in To The Branch Manager, State Bank of India, New Grain Market, Hisar Sir, With reference to above said subject, I want to remind you that many illegal transactions have been made from my above account on dated 28/6/2012. I have two ATM cards with this account, one ATM cum DEBIT CARD and second SBI GOLD, INTERNATIONAL DEBIT CARD. As per your information these transactions are by SBI Gold VISA card in the form of Shopping at MACY’S EAST #528 NEW PORT amounting Rs. 127447.64. I have never gone to USA and neither made any such transactions with any of my cards. As you know both the cards are lying with me and I have not given my cards to anybody else (these cards were verified by you on 30/6/2012). These transactions are totally illegal. In this case there is no fault of mine but still I am facing this loss. I have already lodged complaint regarding these ILLEGAL TRANSACTIONS with your branch on dated 29/6/2012, but no solution has been done so far. So you are again requested to pursue this matter and credit back my money to my account. Dr. Subhash Chander 466 Sector - 15 A, Hisar Mobile : 9416474504 e-mail: subhvet@gmail.com 18.9.2012 “From :Subhash Chander [malito:subhvet@gmail.com] Sent:22 July 2012 09:40 To:barun.verma@sbi.co.in; asc.sbt.@co.in, sreeja,r@sbl.co.in; ramya.praveen@sbi.co.in Subject: Fwd: Regarding ILLEGAL TRANSACTIONS from my Saving Account No.10440803252 amounting Rs. 127447.64/- ----------------Forwarded message----------- From Sujata bhangrefssl. asc@sbi.co.in Date: Fri., Jul.27, 2012 at 6:08 PM Subject: Regarding ILLEGAL TRANSACTIONS from my Saving Account No.10440803252 amounting Rs. 127447.64/- To: subhvet@gmail.com Dear Sir, Please find attached chargelip copies Regards, SBI Visa Team ----------------Original meassage----------- From Sreeja To: fssl.asc@sbi.co.in Sent: Monday, July 23, 2012 11:55 AM Subject: Regarding ILLEGAL TRANSACTIONS from my Saving Account No.10440803252 amounting Rs. 127447.64/- Sd/- Branch Manager SBI New Grain Market, Hisar - 05700

It is the Complainant’s case that he had brought to the notice of the Revision Petitioner that the amount debited was not transferred to the Merchant establishment:4445001105999:VISA and to take necessary steps to recover his amount.

The Bank was very much in the knowledge that the amount was not transferred to the merchant as can be seen in the email dated 30.6.2012, addressed by the Bank to the Head Office, which email reads as follows: “Complainants Management System Complaint Details

Ticket No.

AT42925330160

Source

BRN

Complaint date

30/06/2012

Txn Date

28/06/2012

Lodging Date (Effective date of Complaint)

30/06/2012

Account No.

10440803252

Customer Name

Mr. Dr. Subhash Chander

ATM Card No.

4283760570000017

Customer Details

H.No.466 466-Sector 15 - 466 Sector 15-A, Hisar Hisar 125001 466 Sector 15-A Hisar

Hisar Ph: E.Mail

Product/Services

POS related: Amount debited but amount not transferred to merchant establishment 4445001106013 VISA

Details

Dear Sir, Customer has said that these txn has not been made by him so you are requested to give us all the details of said txn where these txn has been made thanks & regards.

Requested amount

17453.8

Dispensed Amount

Disputed Amount

17453.8

ATM Id:Txn No.

00000037:218002358867/7352100/001

Controller Response

GM/CGM Response

Corporate Centre Response

Previous Response

Closing Date

Referred Date

03/07/12 07:31 PM

Visa we have requested for chargeslip copy from ACQ Bank. If the bank did not fulfil our request we will raise Chargeback After 30 Days. There is a mandatory lock in period of 45 days from the date of chargeback raised. If no representation is received from the Acquiring Bank, the amount will be credited to the customer A/c after 46 days of the date of charge back. Regards, Sujata” “Sbingm “From :”ngm” sbi.05700@sbi.co.in To: ATMHELP ‘ atmhelp.lhocha@sbi.co.in Sent: 18 September 2012 17:16 Attch: VRR 254 tlf. VRR249 tif. VRR250 tif., VRR251 tif., VRR252 tif., VRR253 tif; ILLEGAL TRANSACTION REPORT BMP COMPLAINT DETAIL.BMP Subject: Regarding ILLEGAL TRANSACTIONS from my Saving Account No.10440803252 amounting Rs. 127447.64/- Dear Sir, We submit that account of Sh. Subhash Chander was debited on 28.06.2012 fraudulantly with Rs. 127447.64 in California. But the customer was in India, we have lodged the complaint in CMS but it did not materialise. So you are requested to take up the matter with appropriate authorities so that customer may be given justice. You are also requested to make necessary pressure on the merchant so that money may be recovered. Kindly accede to our request and obliged. Yours faithfully, Branch Manager NGM Hissar-5700”

Thereafter the email on record evidences that the Complainant had made special request to the Bank, first to stop the payment to the merchant and thereafter to recover the amount from the merchant. Even in the written version, there was no substantial explanation given as to why the payment was not stopped to the merchant despite the admitted complaint made by the Respondent herein. To reiterate, the Complainant had 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 & Dairying Haryana certifying that Dr. Subhash Chander, who is the Complainant herein, is working as a Veterinary Surgeon and was regularly attending his duty without any absence for the last one year. It is an admitted fact that the disputed transactions were made in USA and that he had made a complaint to the Bank in writing on the very next day and further that he had brought to the notice of the Bank that the amounts were not yet transferred to the concerned Merchant and to stop the transaction. The privity of contract is only between the Complainant and the Bank and it is the duty of the Bank to instruct its counterpart agent to take appropriate steps. The Revision Petitioner herein did not file any documentary evidence to establish that steps were taken by them to ‘stop’ the transactions despite the complaint having received by them on 30.6.2012. The cards were verified by the Bank officials on 30.6.2012 and this was not rebutted by them in their written version.

Keeping in view our limited revisional jurisdiction as laid down by the Hon’ble Apex Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. II (2010) CPJ 19 (SC), I do not see any substantial reasons to interfere with the well - considered order of the State Commission.

For all the afore - mentioned reasons, this Revision Petition fails is dismissed accordingly. No order as to costs. Revision Petition Dismissed.