Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This consumer complaint is filed alleging deficiency in service on the part of the Opposite Party Bank, hereinafter referred to as the ‘Bank’ for transferring the funds of Fixed Deposit of the Complainant without her instructions.

(2)          Undisputed facts are that, Complainant had kept N.R.I. Fixed Deposit with the Opposite Party Bank which was renewed from time to time.  Lastly it was renewed on 25/04/1996.  The deposit was for US$ 17840.17.  It was the deposit in the name of Complainant – Ms.Roma Thadani and her two children, Nasim and Latika.  The said deposit was to mature on 25.04.2009.

(3)          According to Complainant, for the marriage of her daughter, she was in need of money and therefore, she came to India from Nigeria to withdraw the amount lying in the fixed deposit, supra and visited the Bank on or about 10^th August, 2008 for that purpose.  She was shocked and surprised when she came to know that the amount of the said fixed deposit was transferred by the Bank to some party in China. She had not instructed at any time to make such transfer and she even does not know the name and identity of the person to whom the amount was transferred by the Bank.  Therefore, she sent a notice through her lawyer on 12^th August, 2008 which was replied by the Bank on 25/08/2008, denying their liability and cooking a false story.  Therefore, she filed this consumer complaint inter alia claiming the relief to recover the amount of US$ 17,840.17 together with interest @18% per annum, further compensation of US$ 20000 for expenses towards air fare, and also claiming compensation of `5,00,000/- since she was required to pay interest over borrowed money for her daughter’s wedding and also claimed `3,00,000/- as compensation towards mental agony, pain and suffering and another `50,000/- towards cost of the litigation.

(4)          The bank resisted this complaint as per the written version dated 29^th March, 2010 and denied all other allegations leveled against it.  It is specifically stated by them narrating the course of events as to how they were acted consequent to the directions of the depositors, viz. the Complainant and her children, prematurely broke the deposit and remitted the amount in the account of herself.  Subsequently, suspecting some fraud they also even lodged complaint with the police.  With this, they asked to dismiss the complaint.

(5)          Following points arise for our determination and we record our findings on each of them for the reasons to follow:

REASONS:

Issue No.(i)

In the instant case Complainant by way of evidence, filed Affidavit of her power of attorney holder – Chaitanya Pradhyumnya Purohit dated 14/06/2010.  It can be seen from the said affidavit that it is mere reproduction of the complaint.  Certainly, power of attorney holder did not disclose his knowledge about the facts stated therein and thus looses his evidence value.  Except this no other evidence is produced on behalf of Complainant.  The e-mail and other correspondence and documents on record are not disputed by the Complainant.

Opposite Party filed affidavit dated 11.06.2010 of S.D.S. Carapurkar, Chief Manager, Bank of India,  NRI Branch where the deposit in question was kept.  The course of events and relevant facts dealing with the dispute as narrated by him find corroboration from the documents on record, particularly, the correspondence between the parties through e-mail.  It may be mentioned at the outset that e-mail address by the Complainant, “Roma Thadani” <roma_mthadani@yahoo.com> and the e-mail address of the Bank, “BOI Mumbai NRI”  ‘Annexure-I’ is not in dispute.  It is further revealed from the material placed on record as per provisions of section 13(4) of the Consumer Protection Act, 1986, hereinafter referred to as ‘Act’.  Undisputed documents reveal that it was started from 10.08.2007 when the Bank had received request from the Complainant to encash deposit and remittance of the amount..  According to Complainant herself she was in need of money at that time for the marriage of her daughter.  The case of the Bank as aptly quoted in notice reply dated 25.08.2008 and which reads as under:

“My clients say that your client alongwith two minors had made a FCNR deposit of USD 17840.17 with my clients on or about 28.04.2006, which was due to mature on or about 25.04.2009.  Your client had approached my client by an e-mail on or about 10.08.2007 for premature payment of the deposit, which was followed by a facsimile of written requested dated 15/08/208 whereby your client required the proceeds to be transferred in the account no.3058-3008-67-2810003197 maintained with CAJA MAR BANK in the name of Kwame John.  My clients had noted that the signatures of your client on the said request did not tally with the signatures available on the record of my client as per the passport no.Y548783, and this fact was communicated to your client.  It was also desired that the signatures of the two minors who had subsequently become major should also be confirmed and provided to my clients.  Further, my clients also expressed their reluctance in transferring the proceeds in a third party’s name.

Your client had represented to my client that she had been robbed of the said passport and for security reason had stopped using the said signatures.  After much deliberation, on or about 31.8.2007, your client had provided to my clients the request to transfer the proceeds in the Account no.477272001880443281 maintained with Bank of China standing in her name. i.e., Roma Mohan Thadani.  The said request was carrying the signatures of your client, Mohan Thadani and Roma Mohan Thadani as attested by “Edward Brown and Co. Notary Public” and further confirmed by IBTC Chartered Bank PLC, Victoria Island Branch, Lagos through Kate I. Mathew.  It was pursuant to these instructions that the amount of USD 18917.62 was remitted to the requested account or or about 04.09.2007.”

Their such case is duly established form the affidavit of its Chief Manager of N.R.I. Branch Mr. S.D.S. Carapurkar which finds corroboration from undisputed correspondence through e-mail between the parties.  It can be seen that as per the request made to the Opposite Party through e-mail dated 22^nd August, 2007 by the Complainant herself about the closure of the account and transfer the proceeds to her account as mentioned therein (Annexure -1A).    It reads as under:

 “With reference to your mail dated 24^th August, 2007, please find below as advised by you the letter to close the above deposit account.

Kindly close the above fixed deposit account and transfer the proceeds to my account detailed below:

BANK OF CHINA

SHENZHEN BRANCH

SHENZHEN LOUHU BRANCH

SWIFT CODE          -  BKCHCNBJ45A

A/C NO.                  -  477272001880443281

A/C NAME               -  ROMA MOHAN THADANI”

This particular authorization and request was an endorsed document and the Complainant signature was duly attested by the IBTC Chartered Bank official.  It is a composite request of all the deposit holders, i.e. Complainant and her children.  Having satisfied about the authenticity of the said communication the Bank acted on those instructions and promptly encashed the deposit and remitted the proceeds to the account of the Complainant herself  as per her instructions.  This course of events as established is not rebutted by the Complainant. This course of events further falsify the case of Complainant that for the first time when she visited the Bank on or about 10^th August, 2008 to get encashed the deposit, she came to know to her surprise that the Bank had transferred the amount to some party in China to whom she did not know and that she had not given any instructions to transfer said amount.  So also since the instructions were received on e-mail in the course of several e-mail exchanges between the parties and that too on her correct e-mail addresses a relevance as to whether at the relevant time the Complainant visited or not is not relevant.  Furthermore, interesting  circumstances of the correspondence through e-mail is that, initially Bank had suspected a signature and other deficiencies such as co-depositors signatures or instructions were wanted.  The Complainant saw it that all those deficiencies were removed or clarified and ultimately she had sent an endorsed duly authenticated signature document dated 22.08.2007, supra and then only Bank acted as per those instructions.  There is no reason to hold that Bank acted without any instructions of the Complainant or acted negligently and thus, guilty for deficiency in service.  Therefore, we record our finding on point no.(i) in the negative and on point no.(ii), accordingly.

(6)          For the reasons stated above and findings recorded on the points for determination, we pass the following order:

O  R  D  E  R

     (i)       Complaint stands dismissed.

    (ii)       Complainant to bear its own costs and pay `10,000/- as costs to the Opposite Party Bank.

  (iii)       The copy of this order be sent to the parties as per rules.