Sri Partha Kumar Basu, Member

The complaint was filed u/s 12 of the Consumer Protection Act, 1986 by the complainant for deficiency of services and unfair trade practices with a prayer for relief by refund of deposited sum along with compensation thereof by the OP bank.

The gist of the complaint as averred by the complainant is that having a bank account of the complainant maintained with the OP Punjab National Bank a sum of Rs.48,000/- was deposited by the complainant on 08.11.2018 against a receipt and never withdrawn the amount by self or bearer. But when complainant subsequently visited the branch for withdrawal of money she was told by OP bank having no such amount credited in her said account. Inspite of several efforts and visits of the complainant, she did not receive back her money. The petitioner approached the  CA & FBP office when the OP bank was issued notice but of no avail and hence the complainant prayed for a direction on the OP bank to allow the complainant to pay back her original deposited amount alongwith a  compensation of Rs.25,000/-.

The case was contested by the OP bank stating inter-alia that the complainant being an account holder in the branch that was opened on 01.08.2019 but the deposit of Rs. 48,000/- as claimed by the complainant was not found by the OP bank. The bank also denied having issued any receipt of the said amount to the complainant being the purported receipt devoid of any account number or bank’s cash counter seal. The OP bank, however, contended in their written version on affidavit that one Subhas Manna s/o Rangalal Manna, being the Business Correspondent agent of the concerned Chakdahat branch appointed by their Financial Inclusion department, Kolkata and M/s e- Governance Services India Ltd., has done such fraudulent activities and after getting intimation from the bank, they have accepted the liabilities for repayment of such amounts. During advancing arguments, it is also stated by the Ld. Advocate of the OP bank that the said person is also facing charges simultaneously for several other fraudulent activities in the bank and for which the bank has initiated actions. The OP bank pleaded innocence in their WV, evidences and BNA and contended that the bank is not responsible for the irregularities and malpractices caused by said person Subhas Manna, BC Agent who was appointed by Financial Inclusion Dept, Kolkata of the bank on the request of the Branch office, Chakdahat and M/s e- Governance Services India Ltd.

After having heard both the sides and having adverted to the materials available on record, it is found that the complainant filed this case against the Bank with an allegation that the Bank had not taken any steps for crediting her deposited money in her savings account and subsequently refused withdrawal of the said money by the complainant.

Now, we advert to the issue as to whether the OP bank would be liable for the wrongs and act of the Agent of the bank. Noted that said Subhas Manna, engaged by third party M/s e- Governance Services Ltd. under contractual term with the OP cum PSU Bank is a third party who admittedly operated under the behest of the OP bank. The bank is an abstract entity but functions through it’s employees and Agents. As individuals are capable of being dishonest and committing acts of irregularities or malpractices or wrongs themselves or in collusion with or without others, such acts of Agents of bank, when done during their course of discharging contractual obligations, are binding on the bank at the instance of their customers who are indemnified against the malpractices and/or wrongful acts of the agents of the bank. Such acts of agents of bank during their course of contractual obligations will give a right to the consumer of the bank to legally proceed for injury, as this is their only remedy available against the bank. Thus, the bank, can and is entitled to proceed against the Agents for the loss caused due to alleged malpractices etc., but this would not absolve them from their vicarious liability (Refer the PNB Vs Smt. Durga Devi & Ors. (1977) SCC Online Del 93) where involved person was acting in the course of discharging his duties.

It was also held by the Apex Court in the matter of SBI Vs Smt. Shyama Devi that for the employer to be liable, it is not enough that the employment afforded the servant or agent an opportunity of committing the fraud, but what is relevant is whether the fraud was perpetrated by the Agent/servant/employee during the course of his employment/engagement. Once this is established, the employer would be liable for their Agent/ employee’s wrongful act, even if they amount to a crime. Whether the fraud is committed during the course of employment would be a question of fact that needs to be determined in the facts and circumstances of the case. In the instant case in hand and as per the factual background of this case, it is the admitted position of the Public Sector OP bank that irregularity and frauds were committed by that Agent in and during his course of discharging his contractual obligations with the OP Bank. This is clear from the records where the OP bank admitted that the said agent might did some wrong doings with many other customers of the branch.Deposit of money to the Agent, made by the complainant or the factual part are not in dispute by either side. But the stand of OP bank suffers from inherent inconsistencies. The OP bank in their WV and Evidence and BNA contemplated in clear terms that their Agent has committed fraudulent activities alongwith so many other cases but refrained from taking any responsibilities of their Agents. Also the Ld advocate of complainant contended in his arguments that the depositor cum consumer lady is not much of a literate person, which was not opposed by the other side. On behalf of the PSU OP Bank, it is however urged that the aforesaid malpractices by their Agent are limited and confined to only himself and his Principal organisation, who is the appointed third party by the OP bank. In our opinion, this contention would not help the OP Bank, since it is apparent that the consumer complainant was faced with a difficult position as the OP bank wanted to act against said Subhas Manna and at the same time also tries to protect themselves against any liability and claims of the complainant. Faced with this dilemma, the OP bank acted half- heartedly and took action in the proceedings initiated against their Agents, while they wanted to protect their commercial interests and defend themselves against claims made by the Complainant. The findings admitted and recorded by the OP bank in their WV, Evidence and BNA hence becomes the basis for the observation of this commission. Since the bank is providing a service to the customer, it owes a duty to exercise reasonable care to protect the interest of the customer. This includes a duty to take steps to prevent unauthorised withdrawals from a customer's bank accounts.

Hence, the bank can be held liable for the wrongs committed by it’s Agents. Accordingly the OP bank will be held liable for the acts of Subhas Manna and / or the by third party M/s e- Governance Services Ltd. during the course of their engagement as Agent.

In view of the aforesaid findings, the consumer complaint succeeds with the following directions:-

(i) OP would be liable to refund back Rs 48,000/- along with 7% simple interest per annum (which is equivalent to prevailing average bank interest rate) from 01.08.2019 till the date of actual payment.

(ii) The complaint would be entitled to a compensation of Rs.10,000/- for mental agony.

(iii) The amounts as directed above would be paid within 60 (Sixty days) from the date of this order. In case of failure to pay the compensation amount within the aforesaid period, the OP would be additionally liable to pay simple interest @ 7% per annum on the compensation amount from the date of this order till the date of actual payment.