Punjab

Ludhiana

CC/15/434

Arvinder Singh Adv. - Complainant(s)

Versus

HDFC Bank Ltd - Opp.Party(s)

Paramjit Singh Adv.

21 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

 

Consumer Complaint No. 434 of 17.07.2015

Date of Decision          :   21.10.2016

 

Arvinder Singh Advocate aged 38 years son of late Shri Swaran Singh resident of H.No.79, Ward No.4, Bank Street, Doraha, District Ludhiana.

 

….. Complainant

Versus 

 

1.HDFC Bank Limited, Mall Road, Ludhiana through its Manager.

2.HDFC Bank Limited, Ist Floor, C.S.No.6/242, Senapati Bapat Marg, Lower Parel, Mumbai-400013 through its Chairman/Managing Director.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.P.S.Gumber, Advocate

For OPs                         :       Sh.Rahul Rajput, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.       Complainant, an Income Tax Advocate at Ludhiana claims to be having saving bank account with Ops branch of Miller Ganj, Ludhiana. Even complainant has Gold Loan account with Mall Road Ludhiana branch of HDFC Bank. On 16.6.2015, the complainant was to repay an amount of Rs.1,31,000/- along with accrued interest in the above said Gold loan account. For repaying the same, the complainant first visited the Miller Ganj branch of Ops at Ludhiana at about 11:40 AM. Complainant was to deposit an amount of Rs.1,50,000/- in his saving bank account for clearing the outstanding balance against the Gold Loan account. At that time, computer server of the branch was not working. Complainant kept on waiting in Miller Ganj branch for about 20 minutes, but computer server could not restart. Then officials of the said branch disclosed the complainant as if computer server is down since morning and same requires repair. Complainant was advised to approach the Mall Road Branch, Ludhiana for depositing of the amount of Rs.1,50,000/- and accordingly, the complainant went there at 12:30 noon. Complainant filled the voucher for depositing the said amount and was standing  in the queue. Then one Mr.Mohit Gumber, an employee of OP bank came to the complainant for asking him his gold account number, so that he may take out the gold during the time, the complainant deposited the money. This was disclosed so that the complainant may get his work done as early as possible. At that time, another unknown person was also standing with said Mohit Gumber.       Thereafter, said Mohit Gumber, an employee of Op bank took the complainant in his chamber. The said unknown person also accompanied with Mohit Gumber to his chamber. Complainant after giving gold loan account again stood in queue for depositing the amount. Meanwhile, the unknown person came out from the chamber of Mohit Gumber for disclosing that he being employee of bank, will deposit the amount for saving time of the complainant. At that time, Mohit Gumber, an employee of OP bank also was standing there. Mr.Mohit Gumber disclosed the complainant as if the said person can assist the complainant in filing the voucher and depositing the amount. Thereafter, in the presence of Mr.Mohit Gumber, the complainant paid an amount of Rs.1,50,000/- to unknown person in the chamber of Mohit Gumber.That unknown person was to assist the complainant to  fill the voucher and thereafter, he gave the tray in the chamber of Mohit Gumber for filling the voucher. Then the complainant started waiting in the chamber of Mohit Gumber for depositing of the amount, but when the amount was not deposited in the account, then complainant made enquiries and found that the said unknown person fled away from the spot along with money. Thereafter, the complainant asked Mohit Gumber for said unknown person, but he started claiming as if he does not know him. Complainant reported the matter to the police and on the basis of his statement, FIR No.58 dated 16.6.2015 under sections 406/420 IPC was registered at P.S.Division No.8, Ludhiana. Police under influence of Ops lodged FIR against the unknown person only, but not guilty employees of Ops. At that time, no security guard/gunman was present at the entry/exit gate of the bank. Collapsible doors of the main gate were not chained. Even bank authorities failed to sound the siren alarm. So, OP bank failed to perform its basic duty of deploying armed guards or providing protection to the customers/ employees as well as to the cash/valuable property against mis-deeds of fraud, dacoity/robbery, snatching etc. As the entire occurrence took place in the premises of OP bank and as such, OP bank liable to indemnify the complainant for the loss suffered by him. CCTV cameras lying installed in Mall Road branch of OP bank were not working properly, as a result of which, no clear image came out of the culprits there from. No bank employee was watching the CCTV cameras on the date of incidence. The Op bank was having no check over the entrance of an unauthorized person in the premises of bank or even in the chamber of employees of bank. CCTV camera footage of the time of occurrence shows as if accused person remained in the bank premises for more than half an hour without any checking and even he sat down in the chamber of Mohit Gumber. That is alleged to be an act of negligence on the part of Op bank. Complainant approached Ops several time with the request to refund the said amount, but Ops refused and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to pay Rs.1,50,000/- to the complainant on account of loss suffered by the complainant. Compensation for mental pain and agony of Rs.1 lac along with litigation expenses of Rs.10,000/- more claimed.

2.                In joint written statement filed by Ops, it is pleaded interalia as if complaint is neither tenable in law nor on facts; allegations levelled in the complaint are false; there is no deficiency in service on the part of Ops; complaint filed with an intent to defame the bank and this Forum has no jurisdiction to entertain the complaint because after lodging of FIR, the matter to remain under investigation of the police. Admittedly, the complainant having saving bank account and Gold Loan account with the branches of Ops as referred in the complaint. Allegations of server of OP bank being down on 16.6.2015 vehemently denied along with other allegations of approaching by Mr.Mohit Gumber to the complainant for knowing his gold account number. Ops never allowed any unknown person to enter the chamber of any employee and as such, it is claimed that a story has been concocted by the complainant for usurping the money from Ops. Admittedly, FIR No.58 dated 16.6.2015 was lodged, but allegation of exercising of influence on the police denied. Rather, it is claimed that after due investigation, no fault was found against the employee of Op bank. Even it is claimed that in investigation, it was found that no such incident  ever occurred. Each and every other allegation qua non providing of security guard/gunman at the exit gate or like that specifically denied by one by one each.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and thereafter, his counsel closed the evidence on 26.2.2016.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Ms.Manisha, Manager of HDFC Bank Limited, Mall Road Branch, Ludhiana and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                Even if Ops admitted about holding of saving bank account and Gold loan account by the complainant in Miller Ganj and Mall Road branches at Ludhiana, despite that allegations of negligence denied specifically. By taking us through Ex.C8, the circular of Reserve Bank of India, it is vehemently contended by counsel for the complainant that as primary responsibility of preventing incidence of frauds, dacoities, robberies etc., in the bank premises lies with the banks themselves and as such, due precautions required to be taken by the OP bank in preventing the fraud being committed with the complainant qua which, he lodged FIR Ex.C4 even. Even if responsibility in matter of prevention of frauds, dacoities and robberies is of the banks themselves, but present is not a case, in which, the amount of Rs.1,50,000/- lost by the complainant in incidence of robbery or dacoity. Classification of frauds given in clause 2 of Circular Ex.C8 as misappropriation and criminal breach of trust; fraudulent encashment through forged instruments or manipulation of books of account or through fictitious accounts and conversion of property; unauthorized credit facilities extended for reward or for illegal gratification; negligence and cash shortages; cheating and forgery; irregularities in foreign exchange transactions and any other type of fraud not coming under these specific heads. That classification of fraud stipulated for prevention of frauds in banking transactions between the customers and bank. So, it is the responsibility of the bank concerned to prevent fraud with the customers in matter of encashment on the basis of forged instruments or on account of criminal breach of trust or due to mis-use of credit facilities etc. The present is a case, in which, fraud committed by unknown person with the complainant allegedly. The allegations levelled in the complaint and affidavit Ex.CA of complainant establishes as if complainant believed the unknown person, for handing over the cash amount of Rs.1,50,000/- to him for depositing in the bank account and as such, bank or its employees virtually was not privity to the transaction of handing over of cash amount of Rs.1,50,000/- by the complainant to unknown person. As the complainant at his own handed over the cash amount of Rs.1,50,000/- to unknown person and as such, complainant himself paved the way for    commission of fraud by unknown person with him. A man of ordinary prudence will never hand over the cash amount of Rs.1,50,000/- to unknown person for depositing in his saving bank account, even in the bank premises. Rather, a man of ordinary prudence will go to the counter of the bank for depositing such huge cash amount in his account. Had that precaution of depositing the cash amount by the complainant himself at the cash counter of the bank been observed,                   then certainly fraud would not have been committed by the unknown             person with him. Whatever is not done with due cure and caution, the same to be deemed to be done in rash and negligent manner. As complainant did not take due care of handing over the cash amount of Rs.1,50,000/- to unknown person of his faith or of depositing the same with a person standing at the cash counter of the bank and as such, complainant himself remained negligent in handing                over the cash amount of Rs.1,50,000/- to unknown person. This clear cut             act of negligence on the part of complainant paved the way for the          commission of fraud with him by unknown person. So, the bank or its employees cannot be held liable or deficient in service, particularly when one of the photograph produced by the complainant itself shows that security guard was standing in 4 persons in that photograph of 16.6.2015 snapped around 12:00   noon.

7.                Case of the complainant is full of discrepancies because at one stage in para no.3 of complaint, it is claimed by the complainant as if he filled the voucher for depositing the amount of Rs.1,50,000/- in Miller Ganj branch of OP, but at the other point, he claims as if the unknown person assisted him to fill the voucher and gave the tray in the chamber of Mohit Gumber to fill the voucher. If the voucher was already filled by the complainant for depositing the amount of Rs.1,50,000/-, then there was no occasion with the complainant to get the voucher filled again from the unknown person or with his assistance. Complainant claims in his complaint itself that FIR No.58 was recorded on the basis of his statement. Copy of that FIR is available on record as Ex.C4. In FIR Ex.C4, it is claimed by the complainant as if he handed over Rs.1,50,000/- to unknown person by thinking him as a bank employee. However, such plea is not taken in the complaint at all and as such, in view of variance in versions of the complaint viz-a-viz in Ex.C5 & Ex.C4, it is obvious that complicated question of law and facts requires elaborate                 investigation as to whether the story put forth in the complaint is correct or in FIR Ex.C4 is correct?

8.                Though, in para no.6 of the complaint, it is mentioned that CCTV cameras in Mall Road branch of OP were not working properly, as a result of which, clear image of culprits could not come out, but despite that six photographs (Exhibited as C6) are produced on record to show that person who was the culprit, (to whom Rs.1,50,000/- was handed over) is standing in the bank. From where these photographs got snapped or procured by the complainant qua that no due explanation was offered. In view availability of the photographs with the complainant, it is obvious that bank officials helped the complainant in tracing the figure of the person, who allegedly committed fraud with the complainant. That shows that the OP bank helped the complainant in providing photographs collected from CCTV Camera footage.

9.                In newspaper clipping Ex.C5, it is mentioned as if complainant was divested of Rs.1,35,000/- by a fraudster because complainant took the said fraudster as an employee of the bank. However, in the complaint as well as in the FIR, it is mentioned as if Rs.1,50,000/- taken from the complainant by way of fraud. So, it is a matter of imagination as to whether the complainant was divested the amount of Rs.1,50,000/- or of Rs.1,35,000/-.

10.              If complainant was already having voucher filled with him, then there was no need for Mohit Gumber to call upon the complainant to have assistance of other person in matter of filling the voucher, particularly when the complainant being an Advocate himself can fill the voucher. So, story of fraud in connivance with Mohit Gumber does not look true and that is why contradictions in version of the complainant viz-a-viz in the FIR Ex.C4 has surfaced. As the fraud with the complainant not committed in course of banking transaction or on the basis of forged instruments and as such, benefit from circular Ex.C8 is not available to the complainant.

11.              Benefit from ratio of case titled as Col.D.S.Sachar(Retd.) vs. Punjab and Sind Bank-2005(2)CPJ-130(N.C.) can’t be taken by the complainant because in the reported case, someone snatched money from the hand of the complainant while outstanding in the bank premises, but despite loud alarm raised by him, the snatcher fled away on a scooter standing outside the bank premises. No attempt was made by the security guard/gunman or any employee of the bank to apprehend the snatcher of money from him, despite the guidelines of Reserve Bank of India referred above qua insuring safety of the money of the depositor within the bank premises is the responsibility of the bank officials. Incidence of snatching inside the bank premises stands on different footings than that of incidence of taking away money by an unknown person from a customer inside the bank premises, particularly when the said incidence took place due to negligence of the complainant himself as discussed above. Ratio of case titled as Central Bank of India vs. Sharad Rice Industries and others-2006(1)D.R.T.C.660(Debt Recovery Appellate Tribunal, Allahabad) lays that Reserve Bank of India can issue directions to the bank in respect of                security measures inside the bank premises. In case of Punjab National Bank, Bombay vs. K.B.Shetty-1991(2)CPJ-639(N.C.), loss of ornaments lying in the hired locker of the bank took place and that is why, it was found that in view of negligence on the part of the bank officials in securing the safety of the lockers, the bank liable to pay for the lost articles from the locker. Position of loss of ornaments from the locker stands on different footings then that of the position of losing money by a customer inside the bank premises, due to lack of precautions by himself in handing over the cash to a person not known to him. So, benefit from ratio of this case or of case Vivek Agarwal and another vs. Indian Overseas Bank and another-2011(1)CPJ-111(Rajasthan State Consumer Disputes Redressal Commission, Jaipur) can’t be derived by the complainant. In case of Vivek Agarwal and another(Supra), theft of ornaments from the locker took place due to improper maintenance of the locker. However, allegation of improper maintenance of the locker resulting in loss to the complainant not levelled in this complaint. Likewise, benefit from ratio of case Mahender Singh Siwach and another vs. Punjab and Sind Bank and another-2006(4)CPJ-231(N.C.) can’t be gained by the complainant because that is a case of opening of locker by the bank official at the instance of person, who already surrendered the locker. That position is quite different, particularly when negligence in taking place of incidence in question of this case attributable to the complainant himself as discussed above.

12.              In the case before us, there was no necessity for bank officials to shout because money was handed over willingly to unknown person without any fault of the bank. Liability of the bank to prevent fraud does not extend to the act of negligent handing over the money willingly by a customer to unknown person. If  same done, then it reflects the negligence on the part of the customer himself. Complainant cannot be permitted to encash for his negligent act of handing over the money to unknown person and as such, deficiency in service on the part of Ops certainly is not there. Rather, complaint seems to be filed with a view to burden Op bank with responsibility, despite the fact that fault on the part of Ops not established, resulting in loss in question.

13.              Therefore, as a sequel of the above discussion, the complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:21.10.2016

Gurpreet Sharma.