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2020 SCC OnLine NCDRC 719

In the National Consumer Disputes Redressal Commission†

(BEFORE DINESH SINGH, PRESIDING MEMBER)

Chairman, Punjab National Bank and Another … Appellant(s);

Versus
Leader Valves Ltd. … Respondent(s).
First Appeal No. 112 of 2015‡
Decided on March 13, 2020
Advocates who appeared in this case:
Mr. Ajay Shanker, Advocate for the Appellant;
Ms. Ishita Jain, Advocate with Mr. Rajesh Sehgal, A.R. for the Respondent.
The Order of the Court was delivered by
DINESH SINGH, PRESIDING MEMBER:— This Appeal has been filed under Section 19
of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, impugning
the Order dated 19.12.2014 in C.C. No. 45 of 2010 passed by The State Consumer
Disputes Redressal Commission, Punjab, hereinafter referred to as the ‘State
Commission’.
The Appellants herein, Punjab National Bank, were the Opposite Parties before the
State Commission, and are hereinafter being referred to as the ‘Bank’.
The Respondent herein, Leader Valves Ltd., was the Complainant before the State
Commission, and is hereinafter being referred to as the ‘Complainant’.
2. Heard learned Counsel for the Bank and the Complainant, and perused the
material on record including inter alia the impugned Order dated 19.12.2014 of the
State Commission and the Memorandum of Appeal.
3. The short point for consideration is whether the Bank is liable for unauthorized
transactions made in the Complainant's accounts when the Complainant/account-
holder was not at fault and when the Complainant/account-holder brought the
unauthorized transactions to the Bank's notice without undue delay.
4. The facts have been succinctly articulated by the State Commission in paras 1 to
3 of its Order of 19.12.2014. The same are reproduced below:
The complainant has availed the following cash credit facilities from the OP bank
for the below mentioned accounts:—

a) c/c ABC Account Rs. 100 lacs

b) c/c Hypothecation Account Rs. 900 lacs
c) c/c Book Debt Account Rs. 300 lacs
Total Ceiling for a) to c) Rs. 900 lacs
2. Out of the three accounts, he was entitled to operate only hypothecation
account and for this he was issued I.D. and Password. Whereas the other two
accounts were for strict operation of the opposite parties alone upon which the
complainant had no functional control. In the ABC account, the limit was Rs. 1 crore
to be used against bill sent for collection. The complainant has been using the
facility of e-banking and immediately after receiving the password, he had changed
his accounts' password and had been changing it almost every month.
3. It was further alleged that on 25.1.2010, the complainant was astonished to
discover that someone had made an unauthorized transfer of a sum of Rs. 40 lacs
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by debiting to C/c Book Debt Account No. 3513008700036013 for which the
complainant had no functional control and was credited in some other account of
the opposite parties. This was immediately intimated to the opposite party and due
to timely action on behalf of the complainant, the amount was traced. He further
discovered that another amount of Rs. 26,48,500/- was illegally mis-appropriated
from ABC Account No. 3513008700032345 of the complainant over which he had
no functional control. The Ops gave reply to the complainant stating that the mis-
appropriation was a result of mis-use of password provided for which they were not
responsible. On the advice of the Ops, FIR was got lodged with the concerned Police
Station. After this incident, they were intimated that same password was used for
the operation of these two accounts. The complainant was further informed that
these accounts have been frozen. On that date a sum of Rs. 10,87,737/- was
outstanding but withdrawls continued till 5.3.2010 by use of ATM and these
withdrawls were not possible except with the tacit connivance of the opposite party
and its officials. Then opposite party apprised the complainant of the IP Addresses,
which were traced back to US from which the amount has been mis-appropriated.
The complainant also intimated the Ops of the attempted withdrawls of Rs. 20 lacs
from Delhi Branch and similar attempt was made from Bareily Branch. Then the
complainant wrote a letter dated 25.2.2010 to Regional Director of the Reserve
Bank of India intimating about the inaction on behalf of the Ops. The complainant
had also engaged a private net security agency to assist in locating the culprits and
the same net security agency had already intimated to the Ops about the presence
of malware in their website. Inspite of warning, the opposite parties had failed to
take any effective steps, which was entirely the responsibility of the bank. Then
vide letter dated 11.3.2010, the complainant asked for CCTV footage and addresses
of various ATM locations from where the withdrawals were made. However, the
opposite parties vide their letter dated 12.3.2010 expressed its inability. Although
the complainant received a mail from US Company from which IP addresses had
been traced and the Company advised the complainant to pursue domestic legal
resources. He lodged a complaint against the opposite party before Banking
Ombudsman Scheme, 2006 of the RBI. However, the said authority refused to
entertain the complaint under Section 13(C) of the scheme on 28.4.2010 as it was
a complex complaint. The Ops have failed to secure their internet banking to follow
the National Electronic Fund Transfer (NEFT) procedural guidelines issued by the
RBI under Payment and Settlement System Act, 2007. They also failed to observe
and fulfill its obligation under the Internet Banking Guidelines, 2001 of RBI. They
also failed to comply with the procedural guidelines issued by its own IT Audit Cell
at New Delhi vide Circular No. 6/2010 dated 18.1.2010. Out of the mis-
appropriated amount of Rs. 26,48,500/- only a sum of Rs. 2,79,018/- was
recovered. Hence, the complaint has been filed for refunding a sum of Rs.
23,69,482/- alongwith interest @12% for harassment and agony caused to the
complainant, compensation of Rs. 10 lacs and cost of litigation of Rs. 1 lac, total Rs.
34,69,432/- on account of deficiency in services on the part of the Ops.
5. The State Commission vide its Order dated 19.12.2014 allowed the Complaint on
contest.
Extracts of the appraisal made by the State Commission are reproduced below for
ready appreciation:
17. The persons in whose accounts the amount has been transferred are all
account holders of the Ops. Its intimation was given by the complainant to the Op
Bank in his first letter dated 25.1.2010, out of which a sum of Rs. 2,79,018/- has
been received whereas the Ops in para No. 20 of their reply on merits have stated
that a sum of Rs. 3,23,461/- was recovered. However, no specific document has
been filed by the Ops to corroborate that a sum of Rs. 3,23,461/- has been got
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recovered by the bank. Whereas one document has been placed on the record as
Ex. R-2, it is an appeal against the decision of the Banking Ombudsman,
Ahmedabad by Sh. Asbhishek Jain vide complaint No. 1045/AT/2009-2010 and
recovered a sum of Rs. 83,000/, therefore, in the absence of any specific evidence,
which will be treated that only a sum of Rs. 2,79,018/- as alleged by the
complainant was got recovered back.
18. Another point has been taken by the complainant that withdrawls were made
from his account even after 25.1.2010 after freezing of the account. Whereas plea
of the Op is that the transactions were affected upto 25.1.2010 but due to system
failure these were reflected in the month of March. It seems to be correct because
on 25.1.2010, he had made a report that a sum of Rs. 26,48,500/- was withdrawn
from his ABC A/c No. 3513008700032345 and it is the same amount which he is
alleged to be taken away from his account, which shows that after 25.1.2010 no
amount was taken away from this account, although entries in his statement of
account have been reflected after that date.
19. The next question arises what is the role of the Bank to protect the money of
his account holders? In case the Internet account of the complainant has been
hacked, the complainant as referred above had given the intimation on 25.1.2010
at 6.30 p.m. and immediately thereafter, the Bank was able to recover Rs. 40 lacs
as referred above, which shows that the complaint filed by the complainant was
genuine and out of the remaining amount of Rs. 26,48,500/- a sum of Rs.
2,79,018/- was also recovered.
20. Now we have to see whether the bank was quite serious for the recovery of
the remaining amount and had utilized all his resources to recover that amount or
whether the accounts of the beneficiaries in which the amount was transferred from
the account of the complainant were freezed or orders were passed to recover the
said amount from those accounts. List of accounts to which the amount has been
transferred are at Serial No. 1 to 95 and it gives the details of entire amount of Rs.
26,48,500/-. The perusal of the list will further reveal that all the account holders
are of Punjab National Bank having their account in various branches throughout
India. The OP bank had checked the accounts of the complainant on 25.1.2010,
therefore, they were able to get back a sum of Rs. 40 lacs, which was a major
amount from two account holders. Similarly on the same day, they had come to
know where the money was transferred and in case all the persons in whose name
money was transferred were the account holders of the OP Bank then certainly,
their accounts could be freezed on the same day so that they were unable to
withdraw the money from their respective accounts.
21. Now we have to see whether any such effort has been made by the Bank?
The abovesaid data reveals that various transfers have been made by the account
holders to which the money was transferred from the account of the complainant
after 25.1.2010. In case proper inquiry would have made through their Branch
Offices and immediately those accounts were freezed then account holders would
not have been able to withdraw this amount and this amount could be again
transferred to the account of the complainant. Amount has not been recovered by
the Ops on account of their own deficiency in not freezing the accounts of the
account holders to which the amount of the complainant was transferred. Then
there is report of Inspection Audit Division IT Audit Cell, Head Office New Delhi Ex.
C-21 wherein it has been observed that recently spurt in fraudulent transactions
has been observed through Internet Banking Channel by way of phishing attacks
and role of the branch where the fraudulent credit had gone has been referred as
under:—
i. Verify if the account is debit frozen and ATM/Debit Card issued in the account
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is hot listed. If not, get it immediately frozen/hot listed.

ii. Verify that the accounts are KYC compliant/duly introduced and the operations
in the account are satisfactory. Even if the account is KYC compliant, the
branch to examine as to whether the a/c is being used as a mule a/c for
fraudulent transactions. Contact the customer/introducer and impress upon
for recovery of amount withdrawn.
iii. If the branch is unable to contact the customer/introducer within three days,
issue registered notices (draft of the notice at Annexure B) to the customer(s)
as to why the amount so transferred and subsequently debit frozen, if any in
the account be not refunded to its true owner and if it is not contended within
a week's time, the amount should be credited back to the true owner's
account after obtaining approval from TBD HO.
iv. If the amount has been withdrawn by the customer and no response is
received from the beneficiary customer in one week, lodge FIR against the
beneficiary (draft FIR as Annexure C) with local police office (cyber crime cell
of local police, if available) within 10 days of report of such incident and follow
up the case for recovery of the amount fraudulently withdrawn.
v. Obtain a copy of the FIR so lodged by the complainant along with copy of his
complaint from the concerned branch on basis thereof, FIR be filed.
vi. Submit the details of action taken so far to FPIS HO, Customer Care Division
HO, Transaction Banking Division HO and Cyber Crime Cell, ITD HO latest by
10th day of reporting of this fraud by FAX/email.
vii. Copy of FIR also be sent to respective Circle Office and Cyber Crime Cell at
ITD : HO and it is to be ensured that FIR is lodged within 10 days of the
suspected fraudulent transactions.”
22. However, the Ops have not placed on the record any report of the Branch
Offices where the fraudulent credit had gone because their accounts/ATM have not
been freezed and they continue to withdraw the amount, their identity on the basis
of KYC forms have not been examined and the role of the person, who identified the
account holder. No efforts were made to recover the amount from the account
holders, who had withdrawn the money before 25.1.2010. In case efforts would
have been taken to a great extent the amount transferred in the account of the
various account holders in a fraudulent manner could have been recovered.
23. Whether there was malware in the website of the opposite party. For that a
reference can be made to the letter Ex. C-11 wherein one Saumil Shah had
addressed to the OP Bank that PNB website serving malware and rootkits and it was
observed that their Computer was infected with a rootkit and Trojan. After this
information some efforts were made by the Ops bank to check the malware. They
have placed on the record the report of the Paladion, who was the service provider
of Internet Banking Website of the Op Bank, who has given a certificate that during
the scanning of the above mentioned websites i.e. (1) www.pnbindia.in (2)
www.pnbindia.com (3) www.internetbanking.netpnb (4) www.netpnbcom from
17.1.2010 to 31.1.2010. They did not observe the presence of the malware.
Moreover this Saumil Shah had no locus-standi to write any letter. Merely on the
letter written by Saumil Shah Ex. C-11 we cannot give definite findings that the
website of the Ops were having malware but certainly, they were on the target i.e.
the reason that a huge amount has been transferred from this account and then
there is phishing report, abusive IP addresses attention stating that the Paladion
Internet services, which have committed crime and have made fraudulent
transactions from Indian Bank Accounts by hacking into net banking accounts of
the PNB and transferred about 1,45,000 US$ value from the accounts and logs of
the account. Then a reference has also been made to the judgment dated
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12.4.2010 in Petition No. 2462 of 2008 before Adjudicating Officers of Judicature at

Chennai wherein it was observed that in case, if any person without permission of
the owner or any other person, who is incharge of the Computer had access to such
Computer, if attracts the offence under Section 43 & 85 of the IT Act. It was further
observed that the Banking Code and Standard Mode of India which had set the
minimum standard for banking practices with customers to be followed has
incorporated in its model code that clearly implies that a bank may wish to
investigate transactions and Police Involvement and Customer's Involvement are
anticipated in such a situation and CCTV clippings and video clipping that contained
images of the individuals, who had committed a fraud could be helpful. Here also
the complainant had asked for CCTV footage from the branches from where the
amount was withdrawn but no such information was provided by the OP bank to the
complainant, therefore, whatever help the Op Bank can provide to get back the
amount from the concerned un-authorised persons has not been provided by the Op
Bank. Therefore, the website of the Op Banks was vulnerable. Even if for the sake of
arguments, it is taken that the OP Bank cannot anticipate the hacking of the
accounts of the complainant but its role as discussed above after the incident and
timely information about the hacking of the complainant's account is under
question and is not upto the mark. As stated above in case adequate steps would
have been taken the matter would have been investigated then a major amount
could have been received back in the account of the complainant, therefore, we are
of the opinion that certainly, there was deficiency in services on the part of the Ops.
24. In view of the above discussion, we accept the complaint with a direction to
the Ops to refund Rs. 23,69,482/- alongwith interest @9% per annum from the
date of withdrawal till the date of payment; compensation of Rs. 1 lac and Rs.
21,000/- as litigation expenses.
(emphasis supplied)
(paras 17, 18, 19, 20, 21, 22, 23 and 24 of the State Commission's Order)
6. It is an admitted fact that the Complainant was availing cash credit limit on
three accounts, c/c ABC account, c/c Hypothecation account and c/c Book Debt
account.
7. It is well evinced that on 25.01.2010 unauthorized transfer of a sum of Rs. 40
lakh was made by debiting the Complainant's c/c Book Debt account. The said sum of
Rs. 40 lakh was credited in some other accounts maintained with the same Bank. On
timely intimation by the Complainant, the unauthorized transfer was detected, the
accounts to which the said sum of Rs. 40 lakh was wrongly credited were identified,
the erroneous entries were reversed, and, as such, except for time and trouble, the
Complainant was not put to pecuniary loss or injury.
8. It is also well evinced that on 25.01.2010 another sum of Rs. 26,48,500/- was
unauthorizedly transferred from the Complainant's c/c ABC account. The said sum was
credited in some other accounts maintained with the same Bank. Again on timely
intimation by the Complainant, the unauthorized transfer was detected, the accounts
to which the said sum of Rs. 26,48,500/- were wrongly credited were identified.
The erroneous entries in respect of Rs. 2,79,018/- were reversed, and, as such,
except for time and trouble, the Complainant was not put to pecuniary loss or injury in
respect of the said sum of Rs. 2,79,018/-.
The residual sum of Rs. 26,48,500 (-) Rs. 2,79,018 : Rs. 23,69,482/- could not be
recovered, the erroneous entries in respect of the said Rs. 23,69,482/- were not
reversed, and, as such, in addition to time and trouble, the Complainant was put to
pecuniary loss and injury in respect of the said sum of Rs. 23,69,482/-.
9. In such proven facts, the State Commission ordered that an amount of Rs.
23,69,482/- be refunded with interest at the rate of 9% per annum from the date of
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withdrawal till the date of payment along with compensation of Rs. 1 lakh and cost of
litigation of Rs. 21,000/-.
10. The State Commission has passed a well-appraised and well-reasoned Order.
Extracts of its appraisal, quoted in para 5 above, are, in particular, noteworthy. Its
Award, quoted in para 9 above, is just and equitable.
11. The first fundamental question that arises is whether the Bank is responsible for
an unauthorized transfer occasioned by an act of malfeasance on the part of
functionaries of the Bank or by an act of malfeasance by any other person (except the
Complainant/account-holder). The answer, straightaway, is in the affirmative. If an
account is maintained by the Bank, the Bank itself is responsible for its safety and
security. Any systemic failure, whether by malfeasance on the part of its functionaries
or by any other person (except the consumer/account-holder), is its responsibility, and
not of the consumer.
12. The second fundamental question that arises is whether the Bank is responsible
for an unauthorized transfer due to any virus or hacking in the Bank's computerized
system. The answer, straightaway, to this question also is in the affirmative. If an
account is maintained by the Bank, the Bank itself is responsible for its safety and
security. Any systemic failure, due to any virus or hacking in its computerized system,
is its responsibility, and not of the consumer.
13. It is seen that the Complainant, on his part, had been diligent and dutiful in
bringing the unauthorized transfers to the notice of the Bank without undue delay, he
brought the unauthorized transactions to the Bank's notice the same day, in the
evening, on checking his accounts. His responsibility ended there, and the Bank's
responsibility started, it was the Bank's responsibility to identify the systemic failure,
remedy the pecuniary loss and injury to the Complainant.
14. It is seen that the Complainant (i) had to register an FIR with the Police, (ii)
was not provided CCTV footage by the Bank, (iii) had to engage the services of a
private net security agency, etc. That is to say, the Complainant was put to
unwarranted and undue trouble and prejudice, in effect, the burden was put on him to
either resolve the Bank's deficient act, or, if not being so successful, to live with it.
15. There is nothing on record to show that inquiry was conducted by the Bank to
identify the man-made or systems' failure, or to fix responsibility, etc., when, Rs. 40
lakh + Rs. 2,79,018/- were unauthorizedly transferred and then recovered, and, when
Rs. 23,69,482/- were unauthorizedly transferred and could not be recovered.
16. There is nothing on record to show that the Complainant had himself made the
concerned transfers, and that his averments of unauthorized transfers were malafide,
an attempt at fraud, etc. Had it been so, the account-holders, in whose accounts the
said sum of Rs. 40 lakh + Rs. 26,48,500/- had been transferred, and from whose
accounts it was then recovered, would have come forth to agitate/object. None came
forth. The Complainant lodged an FIR with the Police. The Police did not (repeat not)
file any report under Section 177 of the I.P.C. (Furnishing false information) etc.
The bonafide of the Complainant does not come under question.
17. It was not for the Complainant to show whether the Bank's computerized
system was affected by malware or any other virus, it was the Bank's job to keep its
system clean and functional.
It was not for the Complainant to show that hacking had been undertaken, it was
the Bank's job to keep its system safe and secure.
It was not for the Complainant to show malfeasance on the part of the Bank's
functionaries or of any other person, it was the Bank's job to take the necessary action
and to remedy the pecuniary loss and injury to the Complainant in case of
malfeasance on the part of its functionaries or of any other person.
18. The Bank's contentions suffer from irrationalities and inner-inconsistencies.
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It first argues that the Complainant himself had access to operate the concerned
accounts, when, access or no access, it is not the Bank's case that the Complainant
had himself made or authorized the said transactions, nowhere does the Bank argue
that the Complainant himself was indulging in malfeasance or attempting fraud etc.
It then argues that it recovered Rs. 40 lakh + Rs. 2,79,018/- and reversed the
erroneous entries. That being so, the factum of the transactions being erroneous
stands accepted by the Bank.
It then further argues that non-recovery of the residual Rs. 26,48,500 (-) Rs.
2,79,018 : Rs. 23,69,482/- is not its responsibility. This is an out-and-out erroneous
contention, brazenly professed, an index of a misplaced notion of non-accountability.
It is not the Bank's case that the Complainant committed fraud. The fraud being
advocated by the Bank relates to its other account-holders in whose accounts the
erroneous credits were made by the Bank and from whose accounts they could not be
recovered.
Qua the Complainant, the case is simple and straight, the Bank did not keep his
accounts safe and secure, did not remedy the erroneous transfers on being diligently
and dutifully so intimated by the Complainant.
19. Rather than immediate remedy and apology, the Bank preferred an illogical
nebulous proposition that if it could trace the unauthorized transactions and reverse
the entries, so far so good, else, it was the Complainant's risk and cost, whether it was
a man-made or systems' failure is inconsequential, whether the Complainant was not
at fault is inconsequential, whether the Bank was at fault is inconsequential, the Bank
has no responsibility, no accountability, the Bank is under no obligation to remedy the
Complainant's pecuniary loss and injury.
The entire spectrum of the Bank's acts, seen in the totality of the examination made
by the State Commission and the critique made hereinabove by this Commission, in
addition to being deficient within the meaning of Section 2(1)(g) & (o), is also unfair
and deceptive as to unquestionably qualify to be ‘unfair trade practice’ within the
meaning of Section 2(1)(r) of the Act.
In respect of ‘unfair trade practice’, it may be noted that it is a specific provision
unique to The Consumer Protection Act, 1986.
Section 2(1)(r) says of “a trade practice which, for the purpose of promoting the
sale, use or supply of any goods or for the provision of any service, adopts any unfair
method or unfair or deceptive practice including any of the following practices,
namely : -”.
The list provided in Section 2(1)(r) is illustrative and not comprehensive.
That is to say, an unfair method or unfair or deceptive practice, as is judiciously
determined, on facts and reasons, on fair and objective appraisal of the evidence and
material on record, would qualify as ‘unfair trade practice’ within the meaning of
Section 2(1)(r).
20. The Appeal, being patently bereft of merit, is dismissed.
The Award made by the State Commission in respect of ‘deficiency in service’ is
confirmed.
21. In respect of the ingredients of ‘unfair trade practice’, which are well and truly
evinced, the Bank, through its Chief Executive, is put to stern advice of caution by
imposition of cost of Rs. 1,00,000/- (rupees one lakh), to be deposited with the
Consumer Legal Aid Account of the State Commission, within four weeks of the
pronouncement of this Order.
Its Chief Executive is also advised to conduct inquiry to fix responsibility as also to
imbibe systemic improvements to avert such deficiency and unfairness in future qua
‘consumers’ in general.
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It will be open for the Bank to recover the amount of the Award made by the State
Commission and the cost imposed herein by this Commission from its functionaries
responsible and/or from the persons/account-holders etc. responsible.
22. The amount deposited by the Bank with the State Commission in compliance of
this Commission's Order dated 19.02.2015, along with interest, if any, accrued
thereon, shall be utilized by the State Commission, as per the due procedure, towards
satisfaction of its Award and of the cost imposed herein (refer para 20 and 21 above).
23. A copy each of this Order be sent by the Registry to the State Commission, to
the Chief Executive of the Bank, the Appellant herein, and to the Complainant, the
Respondent herein, within three days of its pronouncement.
———
† New Delhi Bench
‡
(Against the Order dated 19/12/2014 in Complaint No. 45/2010 of the State Commission Punjab)
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