DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.294/2017
Sh. Anil Kumar Khanna
R/o PC- II, 102, Essel Towers,
M.G. Raod, Gurgaon,
Haryana- 122002
….Complainant
Versus
The Branch Manager
Axis Bank
B-6, Ground & 1st Floor,
Lajpat Nagar-2, New Delhi- 110024
The Banking Ombudsman
2nd Floor, RBI Building,
6, Sansad Marg, Delhi- 110001
….Opposite Parties
Date of Institution : 21.08.2017
Date of Order : 18.08.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant has filed the present complaint seeking refund of Rs. 69,584/- illegally deducted by the OP from his savings bank account. The complainant is also praying for interest at the rate of 18% per annum till realization. Along with this, the complainant is also seeking sum of Rs.15,000/- as compensation on account of mental and physical agony, harassment, tension on account of the unprofessional attitude of the OP and Rs.15,000/- towards the cost of litigation. OP-1 is Axis Bank limited and OP-2 i.e. banking ombudsman.
It is stated by the complainant that while the complainant was in Dubai from 09.01.2015 to 01.02.2015. Upon his return, the complainant noticed some fraudulent transactions whereby money was withdrawn from a savings bank account number 031010100295833 which he maintained with the Lajpat Nagar branch of OP 1. The said transactions were madeat Sharjah, UAE. On 30.01.2015 an amount of Rs.34,525.02/- was withdrawn from the complainant’s account and thereafter on 02.02.2015, two separate withdrawals of Rs.17,529.77/- each were made from the same account. It is the case of the complainant that though he returned back to India on 01.02.2015, yet the account was showing withdrawals on 02.02.2015 in Sharjah UAE when the complainant had not even visited Sharjah during his entire stay in Dubai. The copy of the statement of account is annexed as annexure C2. The complainant registered a formal complaint with OP 1on 02.02.2015 itself but there was no response from them. It is stated by the complainant that between 02.02.2015 and 31.03.2015, the complainant repeatedly followed up with OP 1 to get an update on this complaint and after much persuasion he received an email dated 17.04.2015 from OP 1 stating that the bank was not liable for the transactions as they were ATM withdrawal authenticated with the PIN.
It is stated by the complainant that he has never shared his PIN details with anyone including his family members. It is further stated that the ATM debit card which was used for the fraudulent transaction has been throughout in the possession of the complainant and though the complainant was in Dubai the transactions took place in Sharjah, UAE which the complainant never visited. It is further stated by the complainant that OP 1 has not shared the CCTV footage of the withdrawal despite repeated request for the same. The aggrieved complainant then approached the banking ombudsman but the complaint was closed on a vague and unexplained ground. Copy of the email from the ombudsman is annexed as annexure C5. Aggrieved by this, the complainant has filed the present complaint.
In its reply, OP 1has stated that the present complaint is barred by limitation and is liable to be dismissed as per the judgement of the Hon’ble NCDRC in Richard Raja Singh vs Ford Motor Company and BS Agricultural Industries vs SBI. The other preliminary objection taken by the OP pertains to territorial jurisdiction as it is stated that the complainant is the resident of Gurugram and his savings account is also in Gurugram branch, the transactions which are disputed have taken place at Dubai and therefore by virtue of the judgment of the Hon’ble Supreme Court in Sonic Surgical vs National Insurance Company Ltd. this Commission would not have the territorial jurisdiction to entertain the complaint.
On merits, the disputed transactions took place in UAE on 30.01.2015 for a sum of Rs 30,525.02/- and two transactions of Rs.17,529.77/- each which took place at 01.20 hours on 01.02.2015 when the complainant was in UAE and was in possession of his ATM card as well as its PIN. The transactions were done after the normal banking working hours. The transactions were reflected and recorded on the next working day in the account statement of the complainant on 02.02.2015. It is further stated that the complaint has not reportedany loss of his ATM card and it’s PIN at any point of time which goes to show that the alleged transactions were conducted by the complainant himself and he himself is liable for the transactions.
The OP has also relied on the judgement of the Hon’ble NCDRC in State Bank of India vs KK Bhalla wherein it was stated that in view of elaborate procedure involved by the petitioner bank to ensure that without the ATM card and knowledge of the PIN number, it is not possible for money to be withdrawn by an unauthorised person from an ATM. The circumstances of cases where fraudulent withdrawals have happened may not be the same as in this case and in all probability these fraudulent withdrawals occurred either because of the ATM card or the PIN number fell in wrong hands.
At the stage of admission itself, notice was not issued to OP 2, being unnecessary party. The Commission has gone through the rejoinder, evidence affidavits and written submissions of both the parties.
After carefully going through the documents filed by the complainant, it is observed that the present complaint has been filed by the complainant on 21.08.2017 whereas the response received from the banking ombudsman was on11.05.2015. Thereafter, the complainant, it seems has filed another complaint with the banking ombudsman however this complaint does not seem to be registered with the office of the banking ombudsman. It is also noticed that the particulars provided to the banking ombudsman in both the complaints are different. In the first complaint dated 18.04.2015, the branch is mentioned as ‘M.G Road branch’ whereas in the subsequent complaint, the branch is referred to as ‘Lajpat Nagar branch’. Even, in his complaint dated 31.03.2015, the complainant has referred the branch as ‘MG Road branch’.
Therefore, we conclude that the preliminary objections of the OP are valid. The present complaint is time barred as the cause of action has last arisen on 11.05.2015 whereas the complaint was filed after two years i.e. on 21.08.2017. The second complaint filed with the ombudsman was not registered. The second preliminary objection raised by the OP pertaining to territorial jurisdiction is also valid as no part of cause of action has arisen within the territorial jurisdiction of this Commission. Reliance is placed on the judgment of the Hon’ble Supreme Court in Sonic Surgical vs National Insurance Company Ltd. in this regard. Therefore, on these grounds, the complaint is dismissed without any order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
