Punjab

Ludhiana

CC/18/632

Braj Kishore Singh - Complainant(s)

Versus

Axis Bank - Opp.Party(s)

Complainant in person

30 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 632 dated 15.10.2018.                                                        Date of decision: 30.03.2022. 

Braj Kishor Singh S/o. Late Sh. Gorakh Nath Singh, R/o. Bachatar Nagar, Block No.1, Gali no.2, Near Sarpanch Colony, Jamalpur, Ludhiana.                                                                                                         ..…Complainant

                                                Versus

1. Axis Bank Limited, Court Road Branch, Siwan, Distt. Siwan, Bihar-141226, through its Authorized Signatory.
2. Axis Bank Limited, AG 01 to 11, Lower Ground Floor, The Boulevar, Mall Road, Ludhiana, through its Authorized Signatory.
3. Axis Bank Limited, 3^rd Floor, Solaris New Bldg. Opp. L&T Gate No.6, Saki Vihar Road, Powai, Mumbai-400072 through its Authorized Signatory.

                                                                                      …..Opposite parties 

          Complaint Under Section 12 of the Consumer Protection Act,               1986.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Subhash Thakur, Advocate.

For OP1 and OP3          :         Exparte.

For OP2                         :         Sh. Raju Chopra, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Briefly stated, the case of the complainant is that the complainant is maintaining a savings account bearing No.042010100227520 with OP2 who has issued International Debit card to the complainant which was valid from 11/12 to 11/22. The said account was also linked with mobile No.8054200563. On 10.04.2018, the complainant went to his village in Bihar in connection with marriage of his son. He withdrew a sum of Rs.20,000/- from ATM installed at Siwan, Bihar by way of two entries of Rs.10,000/- each. After the withdrawal of Rs.20,000/-, there was a balance of Rs.2,28,934.62 in the account of the complainant. Thereafter, on 21.04.2018, the complainant again went to withdraw the money, but found that only an amount of Rs.481/- was left in his account. The complainant tried to contact the nearest OP1 branch of the bank but the bank had been closed. It happened to be Sunday on 22.04.2018. On 23.04.2018, the complainant visited the bank to get his passbook updated but the officials of the bank did not make any entry on the passbook on some excuse. The complainant reported the matter to the police and the police of P.S. Nagar, Siwan, Bihar registered a case vide FIR No.244 dated 24.04.2018. After the registration of the case, the complainant visited OP2 and he was assured that he would get the money back in his account. Therefore, on 08.05.2018, the entire amount deducted from his account was credited back in the account of the complainant vide various entries and the credit balance of Rs.2,48,934.62 was restored. However, later on, when the complainant came to Ludhiana and visited OP2 bank for updation of the passbook, he was surprised to see that the amount returned has been reversed and balance in the account was reduced to Rs.2039.62. The complainant visited OP2 branch many times but to no avail. The complainant never leaked his debit card detail or OTP to any one and, therefore, the money could not be withdrawn from his account. The action of OP2 in refusing to refund the amount is illegal and unethical and amounts to deficiency of service and unfair trade practice on the part of OP2. In the end, it has been requested that the OPs be directed to refund the amount of Rs.2,48,453 with interest @24% per annum and the OPs be further made to pay a compensation of Rs.1,00,000/- and Rs.55,000/- as litigation expenses.

2.                Upon notice, OP3 did not appear despite service and was proceeded against exparte.

3.                The complaint, however, has been resisted by the OP1 and OP2. In the written statement filed on behalf of the OP1 received by post, it has been, inter alia, pleaded that the complaint is not maintainable and is false and frivolous. According to OP1, the complainant has not named the person who has withdrawn the amount from his account. In the FIR also, the complainant has not mentioned the name of any person as the culprit. According to OP1, every international debit card is insured by insurance company. However, when the bank came to know about the illegal withdrawal, the bank credited the withdrawal amount in the account of the complainant. However, as there was inordinate delay in lodging of FIR, as per terms and conditions of the insurance, the bank came to know that it was a case of cyber crime. Therefore, the bank reversed back the amount credited in the account of the complainant. Under the circumstances, no illegally has been committed by OP1 bank. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

4.                In a separate written statement filed on behalf of OP2, it has been, inter alia, pleaded that the complaint is nothing but an abuse of process of law and the complainant cannot take advantage of his own wrong. According to OP2, it is admitted fact that mobile of the complainant was linked with the bank account of the complainant. The debit entries in question related to e-payment. For the transactions done by the complainant from 10.04.2018 to 16.04.2018, the bank sent messages of all payments on the registered mobile of the complainant. However, the complainant never disclaimed those entries despite SMS messages hence the payment made by the bank were presumed to be correct. OP2 has further pleaded that all of a sudden on 21.04.2018, the complainant disowned the transactions. However, as per guidelines/norms of the bank, shadow credit of the amounts of the entries was made in the account of the complainant subject to the condition that the complainant shall not withdraw any amount out of the shadow credit. Later on, it came to the notice of OP2 that there was nothing fraudulent in the payments. As a result, the amounts of shadow credit was reversed as the bank has legally rejected the claim of the complainant. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

5.                In evidence, the complainant submitted his affidavit as Ex. CA along with documents Ex. C1 to Ex. C5 and closed the evidence.

6.                Subsequently during the proceedings of the case, OP1 did not turn up nor submitted any evidence, so he was proceeded against exparte vide order dated 04.02.2022. However, the learned counsel for the OP2 tendered affidavit Ex. RA of Sh. Manu Agnihotri, Branch Head of OP2 bank along with documents Ex. R1 and closed the evidence.

7.                We have heard the counsel for the parties and have gone through the record.

8.                During the course of arguments, the counsel for the complainant has argued that the transactions from10.04.2018 to 16.04.2018 were never done by the complainant using his debit card. The counsel for the complainant has further contended that these transactions must have been carried out by some employee of the OP bank in-collusion and in-connivance with some fraudster. Therefore, the bank is under an obligation to refund this amount to the complainant along with compensation and costs. The counsel for the complainant has further contended that the OPs once voluntarily credited the amount of Rs.2,48,453/- in the account of the complainant on 08.05.2018 but later on, the said entry was wrongly reversed without any intimation. According to the counsel for the complainant, this amounts to an admission on the part of the OPs that the transactions were fraudulent otherwise they would not have credited the money back into the account of the complainant. Under the circumstances, the OPs are liable to refund the amount of Rs.2,48,453/-  along with interest and compensation, as prayed for in the complaint.

9.                On the other hand, the counsel for OP2 has contended that the complaint is false and frivolous and has been filed with a malafide intention to extract money from OP2. According to the counsel for OP2, debit card was in possession of the complainant throughout and unless and until the complainant shared the details of the debit card with anybody, the money could not have been withdrawn. Even otherwise, SMS messages were sent to the complainant whenever the disputed transactions were made from 11.04.2018 to 21.04.2018 as is evident from the detail Ex. R1, but the complainant never responded to the messages nor he disowned the transactions at any point of time. Therefore, the OP bank cannot be held liable.

10.              We have thoughtfully considered the contentions raised by the counsel for the parties and have gone through the record carefully.

11.              In the statement of account Ex. C4, all the transactions from 10.04.2018 to 16.04.2018 are e-commerce transactions i.e. online payments have been made using the debit card at different places i.e. Gurugram, Pune, Thane, Chennai etc. As per Ex. R1, the detailed messages were sent to the complainant immediately after each transaction, but the complainant never disowned the transactions nor informed or requested the bank to block the usage of the debit card. It is well settled that such like transaction cannot be made unless and until the person holding debit card shares the details of the debit card or its PIN number with somebody. In this regard, a reference can be made to law laid down in judgment dated 07.04.2011 passed in Revision Petition No.3182 of 2008 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case title State Bank of India Vs K.K. Bhalla whereby it was held that it is not possible to withdraw money by an unauthorized person from an ATM without using ATM card and PIN number nor any adverse inference can be drawn against the bank to hold that the withdrawal entries were fraudulently in nature. Moreover, the complainant has not pleaded anywhere in the complaint that he never shared the ATM debit card details with anybody. Even in the complaint made to the police, the complainant has simply alleged that an amount of Rs.2,48,453/- has been un-authorizedly withdrawn from his account by way of fraud. No evidence has been led by the complainant as to what action was taken by the police in the case got registered by the complainant. Therefore, under the circumstances, it has to be held that the complainant has miserably failed to prove that the money was withdrawn due to some negligence or deficiency of service on the part of the OPs. Even otherwise, there are allegations of fraud which cannot be adjudicated in summary manner as detailed evidence is required to be recorded. In this connection, a reference can be made to judgment dated 11.09.2015 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi passed in case title Raju Devi Vs Branch Manager, State Bank of India whereby it has been held that the case of fraud cannot be adjudicated in summary manner and, therefore, the complaint cannot be said to maintainable.

12.              As a result of above discussion, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. The complainant shall be, however, at liberty to approach Civil Court or any other appropriate form to seek redressal of his grievance. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:30.03.2022.

Gobind Ram.

Braj Kishor Singh Vs Axis Bank limited                        CC/18/632

Present:       Sh. Subhash Thakur, Advocate for the complainant.

                   OP1 and OP3 exparte.

                   Sh. Raju Chopra, Advocate for OP2.

                  

                   Arguments heard. Vide separate detailed order of today, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. The complainant shall be, however, at liberty to approach Civil Court or any other appropriate form to seek redressal of his grievance. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:30.03.2022.

Gobind Ram.