BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 17^th DAY OF MAY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay him a sum of Rs.1,05,462-64 together with interest @ 18% p.a being the amount fraudulently withdrawn and a sum of Rs.25,000/- towards compensation for deficiency in service, mental agony, inconvenience, hardship caused to him with cost of the proceedings

2. The brief averments made in the complaint are as under:

The complainant is holding a S.B. Account bearing No.849810100003341 at Bank of India, Whitefield Branch, Bangalore and he was issued with a debit card bearing No.4052 3884 9800 1260.  The complainant was in South Africa during May 2009.  On 24.05.2009 the complainant had withdrawn 3,000 Rand (Rs.17,643-60) from an ATM belonging to ABSA Bank at Komattepoort 2 (Near Kruger National Park) by using the above said debit card.  Apart from the said transaction he has not used the said card anywhere else for any transaction nor he had authorized anybody to transact on his behalf.  After returning to India on 28.05.2009, the complainant personally visited OP bank on 29.05.2009 to update his passbook.  To his shock and dismay the balance left in his account was a meager sum of Rs.298-76 as against the supposed amount of Rs.1,05,761-40.  That on enquiry with the Branch Manager and ATM Debit Card in-charge of the Bank, the complainant was informed that several transactions have taken place with his ATM Cum Debit Card which are as follows.

          The complainant neither withdrawn the above mentioned amounts nor authorized anybody to draw any such amount on his behalf.  It is pertinent to note that all the above withdrawals are said to have been made in one single day i.e., on 25.05.2009 through ATM.  It is surprising that when the ceiling limit of cash withdrawals is only Rs.15,000/- per day through ATM, cash withdrawals to the tune of Rs.1,23,107-24 is allowed on 25.05.2009.  The complainant apprehends that the Branch Manager has played fraud on him.

The complainant immediately called upon the Branch Manager and lodged a complaint with regard to the said fraudulent transactions in his account.  The complainant also informed the Manager the nature of the complaint and since it has taken place in South Africa whether he has to do any further things.  The Manager informed that the complaint will be forwarded to Mumbai Office for processing and he has to wait for about three weeks for their reply.  The complainant was also informed that all the sums are insured and the entire process will be over within 2 to 3 months.  However, thereafter no action was taken in the matter.  Thereafter, the complainant wrote a letter dated 17.06.2009 to the OP requesting to inquire to the matter and take necessary action and deposit the said sum of Rs.1,05,462-64 to his account.  However, OP seems to be ignoring the matter with no correspondence at all from their end.  Therefore, the complainant caused a legal notice to OP calling upon them to deposit a sum of Rs.1,05,462-64 in his account with interest within 15 days from the date of receipt of the notice.  The OP though received the notice failed to either reply or comply with the demands made in the legal notice.  The inaction on the part of the OP in the matter amounts to deficiency in service.  The inaction on the part of OP constitutes grave negligence and deficiency in service which has caused immense mental agony to the complainant, for which OP is liable to compensate.

For the aforesaid reasons, the complainant prays for direction to the OP Bank to deposit a sum of Rs.1,05,462-64 in his account together with interest @ 18% p.a being the amount said to have been fraudulently withdrawn and also pay him a sum of Rs.25,000/- as compensation for deficiency of service with cost of the proceedings.

3.      In response to the notice, OP entered their appearance through their advocate and filed their version contending in brief as under:

It is true that, the complainant is an S.B account holder of the OP Bank and was issued a debit card as claimed by him.  OP does not deny that on 24.05.2009 the complainant had withdrawn 3,000 Rand (Rs.17,643-50) from an ATM belonging to ABSA Bank at Komapttepoort-2 by using his debit card.  It is false to allege that apart from the above said transaction the complainant has not used the card anywhere else for any transactions nor he had authorized anybody to transact on his behalf.  The complainant has utilized his debit card as per the statement of accounts furnished by the OP Bank.  The transactions as mentioned in the complaint have taken place but it is false to allege that the actual withdrawal made by the complainant is only Rs.17,643-60, whereas the total withdrawal made on 24.05.2009 and 25.05.2009 is Rs.1,23,106-24 as per the transactions recorded in his account.  The ceiling limit of cash withdrawal of Rs.15,000/- per day through ATM is only applicable for the transaction which take place in the country.  So far as the transaction which take place overseas, when a debit card is used in overseas there is no ceiling limit for cash withdrawal and thus the complainant cannot make any false allegations having utilized the ATM card to his convenience.  The complaint lodged by the complainant with the Bank was forwarded to Mumbai office wherein it was informed that all the transactions taken place on the said day were genuine and the complainant having made use of the debit card now cannot contend that he has not withdrawn the said amount.  The OP is a public sector Bank having lakhs of customers across the country.  OP has come across customer like the complainant who is bent upon to indulge into a false and fictitious litigation.  Despite he informed by the OP personally, telephonically as well as the reply notice.  There is no deficiency of service on the part of the OP Bank.  The complainant appears to be chronic litigant who is in the habit of indulging into false and fictitious litigation.  The complainant has not lodged any police complaint against fraudulent transaction.  The complainant is not entitled to any of the reliefs claimed.

For the aforesaid reasons OP Bank prays for dismissal of the complaint with exemplary costs.

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

5. After version was filed by the OP, the complainant was called upon to file his affidavit evidence.  Accordingly, he filed his evidence by way of affidavit reiterating the allegations made in the complaint.  Thereafter, the OP Bank filed affidavit of their Chief Manager, White Field Branch in support of the averments made in the version.  Written arguments have been filed by both sides.

6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties, documents produced by the parties, written submissions and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8. (Point No.1) It is not in dispute that, the complainant is holding an S.B account bearing No.849810100003341 at Bank of India, Whitefield Branch, Bangalore and was issued with a debit card bearing No.4052 3884 9800 1260.  It is also not in dispute that, the complainant was in South Africa during the month of May 2009 and on 25.05.2009 he has withdrawn 3,000 Rand (Rs.17,643-60) from an ATM belonging to ABSA Bank at Komattepoort-2 (Near Kruger National Park) by using the above mentioned debit card.  The complainant alleges that, except the above said transactions of withdrawing 3,000 Rand equivalent to Rs.17,643-60 from an ATM, he did not made any other transactions with the said debit card and also did not authorize anybody to deal with the said debit card.

9. Admittedly, subsequent to the transaction of withdrawing 3,000 Rand from the above mentioned ATM at South Africa other 12 transactions have taken place in the said debit card held by the complainant and a total sum of Rs.1,05,462-64 has been withdrawn from ATM, at South Africa.  The said amount has been debited to the account of the complainant.  Complainant claims that, he came to know about the said withdrawal of Rs.1,05,462-64 only after he visited the OP Bank on 29.05.2009 for updating his pass book.  The complainant claims that except withdrawing a sum of Rs.17,643-60 in the form of African Rands he has not made any other transaction and the other 12 transactions have happened that day are fraudulent transactions.  The complainant argues that, since he has not withdrawn the said sum of Rs.1,05,462-64 and since the said amount has been withdrawn fraudulently he is liable to be compensated by OP Bank.

10. Further it is argued on behalf of the complainant that, as per the information provided in website of OP Bank regarding debit cards a debit/credit card holder can withdraw cash up to Rs.15,000/- only, per day.  The complainant has produced the copy of the information furnished on the website of OP Bank.  In the said hard copy of the website information, it has been specifically mentioned that withdrawal of cash up to Rs.15,000/- per day only is permitted by debit card holder.  No where it is mentioned in the said website information that during the transaction at overseas ATM withdrawals more than Rs.15,000/- per day is permitted.  It is contended by the OP Bank that, the upper limit of Rs.15,000/- per day is applicable to the withdrawals made with and help of debit card within Country and there is no such upper limit for withdrawals from ATM overseas.  However, the OP Bank did not produce any material to substantiate their contention that, there is no any upper limit for the withdrawals from an ATM, at overseas ATM.  Therefore, one cannot believe that, the withdrawal at overseas ATM are not restricted to Rs.15,000/- per day.

11. The complainant immediately after having come to know about the above mentioned withdrawals has orally complained to the Manager and also lodged complaint.  The Manager of the OP Bank has informed the complainant that, his complaint has been forwarded to Mumbai Office and he has to wait about for 3 weeks for their reply.  However, when the complainant did not get any reply he has written letter dated 17.06.2009, which is acknowledged by the OP on 23.06.2009 requesting to inquire into the matter and take necessary action and deposit a sum of Rs.1.05,462-64 in his account.  It is apparent from the records that, the OP Bank has not bothered to reply to the said letter or comply the demand made in the said letter.

12. The complainant when did not get any response from the OP Bank to his letter dated 17.06.2009 has caused a legal notice calling upon the OP Bank to deposit a sum of Rs.1,05,462-64 in his S.B account with interest within 15 days from the date of receipt of the notice.  The OP Bank despite receipt of the said notice neither replied to the said notice nor complied the demand made therein for the reasons best known to them.  The OP Bank also did not explain as to why no response was given to the letter dated 17.06.2009 as well as the legal notice dated 16.10.2009 caused by the complainant.  The failure on the part of the OP Bank in response to the above mentioned letter as well as legal notice strengthens the allegations of the complainant that, the OP Bank has not at all made any enquires to ascertain the genuineness or otherwise of the disputed transactions reported by the complainant.  However, in their version, the OP took up a contention that, all the transactions made at South Africa are genuine transactions and the same have been made by the complainant himself.  The OP Bank did not produce any documentary evidence to substantiate the same.  The OP also did not produce any material to show that they have investigated into the complaint submitted by the complainant.  If at all any investigation was done by Mumbai Office of the OP Bank in this regard, nothing prevented the OP Bank to produce the copy of such investigation report.  OP Bank did not produce any documentary evidence including the copy of the alleged reply to the legal notice given by the complainant to substantiate the contention that they have made sincere efforts to investigate into the complaint lodged by the complainant.

13. It is argued on behalf of the OP that, the complainant is indulged into a false and fictitious litigation and he is a chronic litigant who is in the habit of indulging into false and fictitious litigation.  The OP Bank did not substantiate this allegation made against complainant by producing any credible, oral or documentary evidence.  Therefore bare allegation of OP that, the complainant is a chronic litigant and in the habit of indulging into false and fictitious litigation is baseless and is made only to get over its liability to compensate the complainant. 

14. The complainant has no reason to make false allegation of fraudulent withdrawals.  If at all he had any such intention even he would have denied the withdrawal of Rs.17,643-60 on 25.05.2009 at South Africa.  We don’t find any reason for the complainant to make false allegations against the OP Bank with any oblique motive.  It is bounden duty of OP Bank to protect the money deposited in their Bank by the complainant.  When withdrawal per day for more than Rs.15,000/- are not permitted, the OP Bank ought not to have permitted more than 12 transactions on 25.05.2009 which resulted in a huge loss of more than Rs.1,00,000/- to the complainant.  We are of the considered opinion that, the failure of OP Bank in protecting the money of the complainant amounts to deficiency in service.  The OP Bank having permitted fraudulent withdrawal ought to have compensated the complainant immediately after receipt of his complaint or atleast after proper investigation into the matter.  It is apparent from the records that, the OP Bank has not at all initiated any investigation on the complaint filed by the complainant.  Without conducting any proper investigation the OP Bank is blindly contended that all the disputed transactions have been done by the complainant himself.  This conduct of OP Bank amounts to grave deficiency on their part.  Therefore, we are of the opinion that OP Bank has to be directed to compensate the complainant by depositing the said sum of Rs.1,05,462-64 in his S.B account together with interest @ 9% p.a from 25.05.2009 till the date of realization.  Further, the conduct of OP Bank must have put the complainant to mental agony, inconvenience and hardship to the complainant for which the OP Bank has to be directed to pay compensation of Rs.15,000/- apart from litigation cost of Rs.5,000/-.

 15.  The order could not be passed within the stipulated time due to heavy pendency.

 16. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OP Bank is directed to deposit a sum of Rs.1,05,462-64 in the S.B account bearing No.849810100003341 held by the complainant in their Branch together with interest @ 9% p.a from 25.05.2009 till the date of realization together with compensation of Rs.15,000/- and litigation cost of Rs.5,000/-.

The OP shall comply the order passed by this Forum within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 17^th day of May 2016)

MEMBER                           MEMBER                     PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 26.05.2010.

1. Mr.Shibi T. Koshy

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 12.07.2010

1. Sri.C. Visweshwaran

Documents produced by OP – Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*