Upholding orders passed by fora below and holding the State Bank of India (SBI) responsible for deficiency in service twice, the national consumer disputes redressal commission (NCDRC) directed SBI to pay Rs3.60 lakh fraudulently withdrawn from a pensioner-customer's account using cloned ATM and Rs15,000 towards mental harassment and cost. In this case, SBI failed to produce CCTV footage of the ATM from where the cash was withdrawn and also could not share delivery reports of transaction SMSs.
In
an order earlier this month, the NCDRC bench of justice Sudip Ahluwalia says, "...while it was contended on behalf of SBI that after each withdrawal, the complainant was invariably informed about it by SMS text message, but such messages did not reach him on account of some 'technical issues'. This in itself is yet another instance of deficiency in service because had the 'technical issues' had not been allowed to occur with due diligence, the factum of fraudulent withdrawals from the complainant's account would have promptly come to his notice, and he would have been in a position to make the complaint even more promptly."
Jodhpur-based Govind Lal Sharma has a pension account in SBI. On 12 February 2019, he received a call informing him about daily debits of Rs40,000 from his account between 4 February 2019 to 12 February 2019. On checking, Mr Sharma found his ATM card safe in his possession. On 13 February 2019, he visited the SBI branch with his ATM card and passbook and found that Rs3,60,000 had been withdrawn without his authorisation in multiples of Rs40,000. He reported the matter of unauthorised withdrawals of Rs3.60 lakh from his account to the bank officials, who advised him to submit a written complaint. Mr Sharma submitted a complaint to the SBI branch manager on the same day, receiving an assurance that the matter would be investigated within 15 days. Simultaneously, he filed a written complaint with the police station Udaymandir at Jodhpur, leading to the registration of FIR No77 on 14 February 2019.
Mr Sharma did not receive any SMS notifications of the transactions and deemed this a deficiency in SBI's service. Even after over a month, he neither recovered any amount nor received any satisfactory response. Subsequently, on 19 March 2019, he filed a complaint before the banking ombudsman. The ombudsman directed SBI to resolve the grievance through standard operating procedures (SOP) and an internal committee but did not issue any specific directions as of the complaint filing date.
Displeased with the alleged deficiency of service and unfair trade practices, Mr Sharma filed a complaint before the Jodhpur district forum-II. On 2 December 2012, the district forum asked SBI to pay Rs3.60 lakh with interest at 9%pa (per annum), Rs10,000 towards mental harassment and Rs5,000 litigation cost to Mr Sharma.
SBI challenged the order before the Jodhpur circuit bench of the Rajasthan state consumer disputes redressal commission. However, on 28 July 2023, the state commission, while upholding the district forum order, dismissed the petition filed by SBI.
SBI then approached NCDRC with its revision petition. The counsel for SBI contended that the state commission and the district forum failed to appreciate the fact that the bank sent an SMS to Mr Sharma multiple times, and the truth of the same cannot be ascertained unless the police investigate the matter as the details are available only in the mobile phone of Mr Sharma.
"The state commission and the district forum failed to appreciate that there is no question for the Bank to compensate the Complainant as there was no lapse on the part of the Bank's security systems. The illegal withdrawal is at best an act of fraud and forgery and criminal nature, and hence the consumer commissions have no jurisdiction to decide on the matter," he argued.
After hearing both parties and perusing material available on record, NCDRC observed that both the fora below have concurrently decided in favour of Mr Sharma, holding that there was a deficiency in service on the part of the bank, as he had lost Rs3.60 lakh due to fraudulent withdrawal of money by some unauthorised person from his account.
Justice Ahluwalia noted that the district forum was very mindful of the fact that SBI itself could not be blamed for the situation as the cybercriminals or hackers were and are known to have cloned ATM cards of the genuine account-holders which obviously was also the situation in this case. "Further, even this Commission is conscious of the fact that at the relevant point of time, a huge cyber-crime wave was on across the length and breadth of the country, in which by way of some tampering on the part of the cyber criminals or hackers, the cards of innocent account holders would get cloned after being inserted in the ATM machines, due to installation of some malicious software in the same. Similarly, even the PIN Code could be monitored by way of installing hidden cameras above the keyboard of the machines."
"It is not at all the direct allegation of the Bank that it was Mr Sharma who had withdrawn the amounts himself and then blamed the SBI. But it is undisputed that no CCTV footage of the relevant transactions of withdrawal, which had occurred far away from the place of Mr Sharma was available even though he had reported to SBI within 11 days from the date of first withdrawal. This ex-facie amounts to a deficiency in service," NCDRC says.
Finding no grounds to interfere with the well-reasoned orders issued by the fora below, justice Ahluwalia dismissed the revision petition filed by SBI.
(Revision Petition No3002 of 2023 Date: 6 February 2024)
