JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background in brief is that the Complainant is an NRI residing in Dubai UAE, and is a senior Doctor teaching at a Medical College there. He maintains an Account (No. 67802274509) at the Petitioner's Branch Office in Saket, Delhi. During a visit to India on 15th August 2015, the Complainant attempted to withdraw money from his account via an ATM but was surprised to receive a message indicating insufficient funds. Upon inquiry, he discovered that only Rs. 479/- remained in the account, with the rest having been withdrawn without his authorization. Notably, the ATM card had a daily withdrawal limit of Rs. 50,000/-, and the Complainant's mobile number was linked to the ATM, yet he did not receive any SMS alerts for the unauthorized withdrawals, which exceeded the daily limit. Subsequently, the Complainant filed an FIR with the P.S. Ambedkar Nagar, but neither the Police nor the Bank took any action. Despite repeated requests, the Bank refused to provide video recordings from the ATM where the unauthorized withdrawals occurred. Aggrieved by the wrongful withdrawal of his funds, the Complainant filed his complaint before the Ld. District Forum, Delhi.

3. The Ld. District Forum vide its Order dated 02.07.2016 allowed the complaint and directed the Petitioner to refund to the Complainant the amount of Rs. 1,62,729.36/- with interest at 6% p.a. from the date of withdrawal of the amounts, till realization along with Rs. 10,000/- towards mental agony, including litigation costs. The Petitioner filed its Appeal before the Ld. State Commission, which vide the impugned Order dated 12.01.2018, dismissed the same, and upheld the Order of the Ld. District Forum. The relevant extracts of the impugned Order are set out as below – 

“12. Per contra AR of respondent submitted that every case involves disputed questions of facts and law which require determination but that does not mean that consumer foras must return all the cases. It was held by Hon'ble Supreme Court in CCI Chamber Cooperative Housing Society vs. Development Credit Bank AIR 2004 SC 184 that merely because service expert for proving signature writing are required consumer court cannot refuse to entertain the case. IN Dr Merchants vs. Srinath Chaturvedi AIR 2002 SC 2931 it was held that where negligence of experts is alleged, case can be decided by consumer court. In Sutlej Textile vs. PNB I (2010) CPJ 312 National Commission took the same view.

13. In Shiv Kumar Aggarwal vs. Arun Tandon II 2007 CPJ 321 NC it was held that Consumer Foras which are presided over by senior judicial officers are competent to decide disputed questions of fact.

14. Lastly counsel for appellant relied upon decision of National Commission in SBI vs. Sansar Chand II (2015) CPJ 135 that if CCTV footage is not provided only compensation and cost can be allowed but not refund. Firstly this authority does not fully help the appellant. Reason being that compensation and cost were still allowed. The decision cited by counsel for appellant is distinguishable.

15. In Revision Petition No. 4868/12 titled as Vidyawati vs. SBI National Commission held that in case of withdrawal from saving funds by foul play, bank is liable to make good loss. In Bhadra M. Dalal vs. Bank of India IV (2011) CPJ 330 National Commission held that when withdrawals through ATM are in excess of limit, the bank is liable to refund the amount with interest.

 16. Counsel for appellant did not miss to argue that complaint was bad for non joinder of necessary parties. According to him the banks through ATM of which withdrawal were made were necessary parties. We feel argument is bereft of a merit. In Chena Ram vs. OBC II (2016) CPJ 613 National Commission held that there was no privity of contract between complainant and those Banks, thus said Banks could not be joined as OPs.

17. The present case is squarely covered in the ratio of the said decision. Here also limit of withdrawal on one day was Rs. 50,000/- as pleaded by complainant categorically in the complainant. The same was not denied by the appellant in written statement. Thus the same amounted to admission. During arguments counsel for appellant submitted that later on the limit for withdrawal was enhanced. He sought time to produce copy of notification in that regard which was allowed on 08.01.17 till 10.01.17 but no such notification has been filed.

18. For the foregoing reasons we found that appeal has no merit. The same is dismissed…”

4. Ld. Counsel for Petitioner has argued that the Complainant had not approached the Ld. District Forum with clean hands and had suppressed the true facts. The Complaint regarding unauthorized ATM withdrawals was received through the Complainant's father, who is pursuing the matter, but the Complainant himself never visited the Bank. He has not requested the blocking of the ATM card to date and has not disclosed his geographical location on the date of the alleged forged transactions. Despite the Petitioner Bank's request to fill out a form for collecting important information on the disputed transactions, the Complainant neither replied to the request nor filled out the form; That according to the Email to the bank and the FIR, the Complainant was aware of each transaction. It is mentioned in the FIR that there was a balance of Rs. 12,509/- on 11th August, indicating that he was tracking the statements, and that the Petitioner Bank has no liability for the alleged deficiency in service; That the Petitioner requested CCTV footage from the Axis Bank, IndusInd Bank, and State Bank of India, but IndusInd Bank and Axis Bank replied that the footage is not available; That the District Forum and State Commission failed to appreciate that no amount of more than Rs. 50,000/- could be withdrawn within 24 hours; That the present Complaint involves issues requiring consideration of elaborate documents and evidence, including oral evidence, which makes proceedings under the Consumer Protection Act inappropriate for its adjudication; That no cash could have been withdrawn from the Complainant's account without the use of the ATM Card issued by the Bank along with the PIN. The ATM card must have been stolen or otherwise obtained by some unscrupulous person, and the PIN may have been disclosed by the Complainant to some person who withdrew cash from the Bank; That as per judgments by the Hon’ble Supreme Court, such as "The Chairman & Managing Director, City Union Bank Ltd. & Anr. v. R. Chandramohan, 2023 LiveLaw (SC) 251" and "Oriental Insurance Co. Ltd. v. Muni Mahesh Patel, IV (2006) CPJ I (SC)", it has been held that proceedings under the Consumer Commission are summary in nature and complaints involving highly disputed questions of facts, tortious acts, or criminality like fraud or cheating cannot be decided under the Consumer Protection Act.

5. Ld. Counsel for Respondent has argued that the Respondent never disclosed his ATM PIN to any person, nor did he request the Petitioner Bank to enhance his daily withdrawal limit of Rs. 50,000/-. The Respondent did not receive any SMS alerts for the transactions in question, indicating that the Petitioner Bank had not linked his mobile number with the ATM; That upon sensing potential fraud, the Respondent immediately alerted the Petitioner and lodged FIR No. 857/15 dated 20.08.2015 with the Police Station, Ambedkar Nagar, Delhi. Despite repeated requests during proceedings before the District Forum and the State Commission, the Petitioner failed to provide CCTV footage of the ATMs to identify the culprits. The Petitioner Bank also failed to send SMS alerts during the three days of withdrawal and enhanced the withdrawal limit from Rs. 50,000/- to Rs. 1,00,000/- without any request from the Respondent; That Banks are custodians of public money, and in this case, the Petitioner Bank failed to protect the Respondent's money, constituting a deficiency in service. The State Commission and the District Forum rightly held the Petitioner liable for this deficiency.

6. This Commission has heard both the Ld. Counsel for Petitioner and the Respondent, and perused the material available on record.

7. This Commission has carefully perused the available material on record including the written submissions filed by both the sides and the case laws relied upon by them.

8. Reliance of the Petitioner/Bank is firstly on the decision of the Hon’ble Supreme Court in “The Chairman and Managing Director, City Union Bank Ltd. & Anr. Vs. R. Chandra Mohan (2023) Life Law (SC) 251 in CANo.7289 of 2009”, in which it was held that there was no deficiency in service on the part of the Petitioner/Bank where the payment had been made by the Bank to one of the Directors in the Company “D-Cube Construction (P Ltd.)”, after a dispute between the Directors had occurred and other Director had asked the Bank to not allow withdrawal from the current account of the Company.  The Apex Court had observed inter-alia –

“9. Under the circumstances, when the Current Account No. 4160 was opened by R. Thulasiram as the proprietor of “D-Cube Construction”, relying upon the letter dated 15.02.1997 written on behalf of the “D-Cube Constructions (P) Ltd.”, and when the disputed two drafts in question which were in the name of “D-Cube Construction”, were credited in the account of “D-Cube Construction”, it could not be said that there was any willful default or imperfection or short coming so as to term it as the deficiency in service on the part of the appellant-bank within the meaning of Section 2(g) of the said Act. The counsel for the appellants has rightly relied upon the decision of this Court in case of Ravneet Singh Bagga (supra) as under:

“5. Section 2(i)(o) defines “service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines “deficiency” to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”

10. The ratio of the aforestated decision has also been followed in case of Branch Manager, Indigo Airlines Kolkata (supra). In Oriental Insurance Co. Ltd. vs. Munimahesh Patel 5, this Court held that the proceedings before the Commission are essentially summary in nature and the issues which involve disputed factual questions, should not be adjudicated by the Commission.

11. So far as the facts of the present case are concerned, even if the allegations made in the complaint are taken on their face value, then also it clearly emerges that there was no wilful fault, imperfection, shortcoming or inadequacy in the discharge of the 5 (2006) 7 SCC 655 duty on the part of the employees of the appellants’ bank, which could be termed as “deficiency in service” under Section 2(1)(g) of the said Act. As emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors, if allegedly had committed fraud or cheating, the employees of the bank could not be held liable, if they had acted bona fide and followed the due procedure.

12. The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.

13. In the instant case, respondent-complainant having miserably failed to discharge his burden to prove that there was a deficiency in service on the part of the employees of the appellants-bank within the meaning of Section 2(1)(g) of the Act, his complaint deserved to be dismissed, and is accordingly dismissed. The impugned orders passed by the State Commission and the National Commission are therefore quashed and set aside. The appeal stands allowed accordingly.”

9. The next reliance on behalf of Petitioner/Bank is on the decision of this Commission in “RP No.2889 of 2014 -State Bank of India Vs. Sansar Chand Kapoor and another”, in which similarly there was unauthorized withdrawal at the ATMs from the Account of the Complainant/Respondent. This Commission allowed the Revision Petition with the following observations :-         

“5. We are in agreement with the learned counsel for the petitioner that no cash from the account of the complainant could have been withdrawn without use of the ATM card which the petitioner bank had issued to him along with use of the pin which the bank had provided to him. If the complainant himself did not withdraw cash from the bank on 10-11-2011, as is claimed by him, his ATM card must have been stolen or otherwise obtained by some unscrupulous person. Not only that, the ATM pin must have been either disclosed by the complainant to the person who withdrew cash from the bank or he would not have kept it in safe custody as a result of which the person who withdrew the money through the use of the ATM could lay his hand on the said pin and later feed the pin in the ATM machine while using the ATM card issued to the complainant. Therefore, no deficiency in services is made out on account of the alleged fraudulent withdrawal of Rs.10,000/- from the bank account of the complainant on 10-11-2011.

6. It is an admitted case that CCTV recording was provided by the respondent No.2-Punjab National Bank to the petitioner State Bank of India but despite request of the complainant a copy of the said video footage was not provided to him. Though according to the petitioner bank the said video footage was shown to the complainant and his son-in-law when they visited the bank, that in our opinion would not be sufficient and considering the fraudulent withdrawal claimed by the complainant the bank ought to have made available a copy of the aforesaid CCTV footage to the complainant. The petitioner bank, therefore, was deficient in rendering services to the complainant, by not making available a copy of the aforesaid CCTV footage to him. 7. For the reasons stated hereinabove the order of the District Forum and the State Commission to the extent the petitioner bank has been directed to refund the amount of Rs.10,000/- to the complainant along with interest is set aside. However, the order to the extent it awards compensation and cost of litigation to the complainant is upheld.”

10. The Petitioner/Bank has further relied upon the earlier decision of this Commission in “RP No.2479 of 2008 - UCO Bank Vs. Shri S.D.Wadhawa”, in which withdrawal was permitted by the Petitioner/Bank in favour of some unauthorized person against the cheque(s) not signed by the Complainant/Account holder. In allowing the Revision Petition, this Commission had observed inter-alia -  

“In view of the above circumstances all the citations cited above are applicable to the case on hand. It is clearly established that the respondent had failed to take due care of his cheque book due to which his own staff could access the same and withdraw the money fraudulently from the bank account. He came to know the same on updating his pass book. Bank cannot be held for deficiency in service in this regard. 

Secondly, complaint regarding fraudulent withdrawal from the respondent account on the basis of forged cheques, involve complicated and complex questions which require elaborate evidence and hence, the dispute is not adjudicable in summary jurisdiction. As such the complaint is not maintainable in the Consumer Form.”

 

11. From his side, the Respondent/Complainant has not cited any case law, but has relied on the observations alone of the Ld. State Commission in the impugned Order, which has been reproduced in the written arguments filed from his side.

12. In the opinion of this Commission, reliance of the Petitioner on the decision in three cases i.e. “The Chairman and Managing Director, City Union Bank Ltd. & Anr. Vs. R. Chandra Mohan”, “State Bank of India Vs. Sansar Chand Kapoor and another” and “UCO Bank Vs. Shri S.D.Wadhawa” (supra) would not appear to be entirely well founded. The facts in the case “The Chairman and Managing Director, City Union Bank Ltd. & Anr.” (supra) were different from those in the present case, there it was a dispute between the Directors of the account holder company. In UCO Bank’s case (supra), the unauthorized withdrawal from the Complainant’s Account was against the allegedly forged cheques, and not through ATM machine.

13. However, in “State Bank of India Vs. Sansar Chand Kapoor and another“ (supra), there is some similarity with the facts of the present case inasmuch as unauthorized withdrawal from the Complainant’s Bank Account had been similarly made by some fraudsters. But the superfluous similarity would tend to end there itself. This is so because the fraudulent withdrawal in that case had taken place in the year 2011, and judicial notice can be taken of the fact that in that particular year, there was no system of sending any instant intimation of about the said withdrawal to the Account holder by SMS.  Such practice became operative as a standard procedure some years later, and was certainly in vogue by the year 2015, in which unauthorized withdrawal from the Petitioner/Bank Account was never intimated to him by the standard SMS messages which had become the norm by that time. Also,  judicial notice needs to be taken of the fact that it was around this very time when cyber crime by way of cloning of ATM cards by the criminals had become widespread, and the Pin Code for withdrawal could be monitored by placing hidden cameras in the ATM machines recording the finger work of the Account holder while using his ATM card for any purpose in such ATM machines. But neither any intimation by way of SMS was ever sent to the Complainant after the fraudulent withdrawal from his Account, nor even the relevant CCTV footage was made available. Not only that, amounts in excess of Rs.50,000/- for one day were withdrawn from the Complainant’s Bank Account through ATM.  The same clearly is a palpable case of deficiency in service, since such withdrawal in excess of Rs.50,000/- in a day, was not permissible even according to the Bank’s own rules. It was submitted on behalf of Petitioner/Appellant-Bank that later on the limit for withdrawal had been enhanced, and time was obtained for the purpose of producing copy of notification in that regard, which was allowed by the Ld. State Commission as noted in para 17 of the impugned Order, but no such notification was filed.

14. When the same question was put to the Petitioner side by this Commission, the submission was that the withdrawal limit of Rs.50,000/- for a day is not in the context of 24 hours, but only the specific dates changing at mid night each day.  On 13.2.2024 when the arguments were completed and the order reserved, the Petitioner’s side was still granted liberty to file a copy of the relevant Regulations or Circular, which would indicate as to whether the withdrawal limit of Rs.50,000/- was in the context of a full calendar day or for 24 hours spread over two separate calendar dates, but no such Regulation or Circular was filed on behalf of Petitioner.

15. Consequently, this Commission finds no tangible grounds to interfere in the concurrent decisions of both the Ld. Fora below. The Revision Petition is therefore, dismissed.

16. Parties to bear their own costs.

17. Pending application(s), if any, also stand disposed off as having been rendered infructuous.