3. Admitting the Consumer Complaint this Commission has issued notice to the Opposite Party and duly acknowledging the same.
4. The O.P. filed written version through his advocate. It is stated that instant complaint as famed and filed is not maintainable either on facts or in law and is an abuse of this learned Forum. The instant consumer complaint has been filed by the complainant against ICICI Bank ltd. Branch Manager, ICICI Bank ltd, Dharma Nagar Branch, Berhampur Odisha alleging that on 16th November 2016 by means of two fraudulent transactions an amount of Rs.3,59,918.94p. has been debited from the savings account bearing no. 027001002335 maintained by the complainant with the O.P. and a sum of Rs.5,15,000/- has been transferred by partially breaking a fixed deposit for a sum of Rs.9,00,000/- bearing number 027010076341 transferred into the accounts of various beneficiaries without the complainant’s consent/knowledge. It has been alleged by the complainant that the said transactions are fraudulent in nature and that OTP for the said transactions were not received by the complainant. Without admitting anything save and except what are matters of record, the OP herein at the outset denies and disputes all the allegations as made out in this complaint. An internal investigation being conducted by the O.P. it transpires the complainant and himself initiated and executed the alleged fraudulent transaction. The complainant on 16th November 2016 had initiated an outward remittance request towards transfer/remittance of the alleged fraudulent amount of Rs.3,59,918.94p. and Rs.5,15,000/- utilizing the internet banking channel upon filing in requisite details as required to initiate the said transaction and completed the said transaction upon entering the confidential security details including the onetime password issued by the Bank to the registered mobile number of the complainant. The alleged fraudulent transactions of an amount of Rs.3,59,918.94p. and Rs.5,15,000/- were carried out from the complainants account through the same device which the complainant had been using for other transactions as would be evident from the internal log reports of the Bank which would show that the device id used for the fraudulent transactions is the same as the device id which has been continuously used by the complainant for which the complainant has not denied nor any dispute about. Further, such transactions are validated only on inserting correct grid value mentioned in debit card of the complainant. The IP address used for the alleged fraudulent transactions post successful login into the internet banking portal as on 16th November 2016 are similar to the IP address of an undisputed transaction which the complainant had carried on 15th November 2016. Further, the devices from which the complainant had undertaken the transaction do indicate that the both devices are mapped to the complainants login Id and as such the alleged fraudulent transaction and the undisputed transactions have taken place from the same device and on the same IP address thereby raising a reasonable apprehension that the said transactions have been made by the complainant himself and/or share/compromised his device/confidential security details pertaining to his account for which actions no liability may be fastened upon the O.P.Bank. Further the complainant had admitted in his complaint that the O.P.Bank on being notified on such fraudulent transactions, have successfully recalled the funds from one of the beneficiary of an amount of Rs.3,59,918.94p. and have credited the same into the complainant’s account. In the facts and circumstances of the case, the balance of convenience lies in favour of the O.P. and passing of necessary order dismissing the complaint as against the O.P.
5. On the date of hearing of consumer complaint learned counsel for the complaint is present. We heard argument from the counsel for the complainant. We perused the complaint petition, written version, written arguments and documents placed on the case record. The OP neither filed the written argument nor participated in the final argument. The Commission provided sufficient opportunities to OP to table the matter. The O.P. refunded Rs.3,59,918.94p. to the complainant’s account but not refunded amounting of Rs.5,15,000/-. To prove the case of the Complainant, the Ld. Counsel for the Complainant relied upon the circulars issued by the Reserve Bank of India in different times for protection of interest of Customer Service i.e., ‘Customer Service – Reversal of Erroneous Debits Arising on Fraudulent or Other Transactions’ vide Circular DBOD.LEG.BC.86/09.07.007/2001-02, Dated:08.04.2002 & 1995 wherein the RBI has advised the banks that once the bank is convinced that an irregularity / fraud had been committed by its staff towards any constituent, it should at once acknowledge its liability and pay the just claim. Further the RBI to redress the grievances of the customers in this regard, advise that (i) in cases where banks are at fault, the banks should compensate customers without demur, and (ii) in cases where neither the bank is at fault nor the customer at fault but the fault lies elsewhere in the system, then also the banks should compensate the customers (up to a limit) as part of a Board approved customer relations policy. In the instant case, the opposite party admitted the irregularity and fraudulent transaction on their part in Annexure G1 at para 2. The complainant relied upon the judgment passed by the Hon’ble National CDR Commission, New Delhi has held in case of Vidyawanti versus State Bank of India and others reported in 2015 CJ 838 (NC) such as:-“Unauthorized withdrawal from ATM constitutes deficiency in service on part of Bank”. And the judgment of Hon’ble National Commission in another Case held in the HDFC Bank ltd. & Another versus Swapan Kumar Joardar (2016) 1 CPJ 544 (NC) Consumer Protection Act, 1986-Section 2(1)(g), 21 (b)- Banking and financial Institutions services- Unauthorized transfer of money- Forged application for net banking facility- Negligence of staff- Deficiency in service. Serious lapse amounts to deficiency in service on part of bank.
6. On foregoing discussion it is crystal clear that the O.P is negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.P.
7. So far as the compensation and cost of the case is concerned, we are convinced that the O.P failed to take any effective steps to short out the problem of the complainant for which the complainant has suffered physically and mentally. As such the complaint is entitled to get cost of litigation since he has hired the services of an advocate for filing his complaint in this Forum and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award interest on the lost amount from the Fixed Deposit as well as litigation cost in favour of the complainant.
In the result we direct the OP. to refund Rs.5,15,000/- together with 9% interest per annum from the date of filing of this case i.e. on 04.08.2017 within 45 days from the date of receipt of this order. Further the O.P. is also directed to pay Rs.50,000/- towards cost of litigation to the complainant within 45 days from the date of receipt of this order failing which all the dues shall carry 12% per annum till its actual date of realisation and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for realisation of all dues.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 23.05.2023
