IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 359/08 DATED 14.11.2009<br /> ORDER<br /> <br /> Complainants 1. Dr.Satnam Singh, S/o Didar Singh<br /> 2. Smt.Dr.Geeta V Nathan, W/o Satnam Singh, <br /> Both are R/at No.1160, Persinger Road, Roanoke, VA 24015, Rep. by their GPA holder Vijaya.S.R., D/o S.V.Rajarathnam, NO.37, Chaitra, 5th Cross, Manicipal Farm Road, Vidyaranyapuram, Mysore-570008.<br /> (By Sri.Ramaraveendran, Advocate)<br /> Vs. <br /> Opposite Parties 1. M.V.Kamath, M.D. and C.E.O., ICICI Bank Limited, ICICI Bank Towers, Bandra Kurla Complex, Bandra East, Mumbai-400051.<br /> 2. Jayanth Kamath, Branch Manager, ICICI Bank Limited, No.47, 5th Cross Road, 5th Main, Malleshwaram, Bangalore City.<br /> 3. Bela Parui, Manager – Service, ICICI Bank Towers, Kalina, Santacruz (E), Mumbai-400098.<br /> 4. The Branch Manager, ICICI Bank Limited, Kalidasa Road Branch, Mysore City.<br /> (By Sri.Gerald Castelino, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 14.11.2008<br /> Date of appearance of O.P. : 17.12.2008<br /> Date of order : 30.01.2009<br /> Duration of Proceeding : 1 MONTH 13 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainants in brief is, that they maintained an account with the second opposite party and that the fourth opposite party is a branch of the first opposite party, which is carrying on its business in Mysore City. That there had been illegal withdrawal of Rs.7,00,000/- from their account from 22.11.2007 to 01.12.2007 without their knowledge. On coming to know the said withdrawals, they approached the opposite parties and came to know that withdrawals are made in favour of one John Augustine, who is not known to them. The opposite parties failed to furnish them the required particulars regarding illegal withdrawals. Therefore on 21.06.2008 they got issued a legal notice to first and second opposite parties. The opposite parties sent reply on 10.07.2008, which is evasive one. That they are very much disappointed after reply from the opposite parties. That the opposite parties thereafter have given credit of Rs.1,00,000/- which suggests that withdrawals are unauthorized or illegal, as such the opposite parties have caused deficiency in their service in allowing the unauthorized withdrawals and therefore have prayed for re-crediting Rs.6,00,000/- to their account with interest at 18% p.a., and damages of Rs.5,00,000/-.<br /> <br /> 2. This Forum on the basis of materials placed before it ordered issue of notice to first and second opposite parties only. However, the counsel has appeared for all the four opposite parties and filed common version contending that no cause of action has arisen at Mysore, therefore, the complaint cannot be filed at Mysore and is liable to be dismissed. The opposite parties further denying all other allegations of the complainants have contended that the complainants did not co-operate with them to investigate into the withdrawals. That the complainants who had password had to preserve it securely without disclosing to anybody. The withdrawals transaction might have taken place in connivance of the complainants themselves or in case if it has been done illegally by any other person, it would not be able to trace the same as a transaction has been done using password of the complainants and that is nothing but a cyber crime. That they made every effort to persuade the complainants to give complaint to the police regarding illegal withdrawals, but he has failed to give complaint to the police. That in order to maintain good relationship between them and the complainants pending enquiry, they reversed the entry by giving credit Rs.1,00,000/- to the account of the complainant to facilitate the operation of the account and it cannot be construed as an admission of allowing illegal withdrawals and therefore have prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the power of attorney holder of the complainant and the Branch Manager of the fourth opposite party filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainants have produced a copy of the legal notice he got issued to the opposite parties and a copy of the reply given by the opposite parties. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainants prove that the opposite parties have caused deficiency in their service in allowing unauthorized withdrawals of Rs.7,00,000/- from their account?<br /> 2. To what relief the complainants are entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> <br /> REASONS<br /> <br /> 6. Point no.:- As evident from the grievance of the complainants and the admissions of the opposite parties made in their version, affidavit evidence and reply given to the legal notice of the complainants that these complainant had maintained an account with second opposite party and a sum of Rs.7,00,000/- has been withdrawn from that account between 22.11.2007 to 01.12.2007. The complainants have contended that those withdrawals are all unauthorized illegal and that is because of the negligence of the opposite parties, which amounts to deficiency in their service. The opposite parties have admitted the said withdrawals, but contended that password of operation of the account will be with the complainants and that withdrawals must have been made in connivance with the complainants. The complainants have stated that they came to know from the opposite parties, those withdrawals have been made in favour of one John Augustine. The opposite parties do not dispute this fact of those withdrawals are made in favour of that one John Augustine.<br /> <br /> 7. The opposite parties are being trustees for the amounts deposited by their customers in their banks and when they found withdrawals of certain amounts and received complaint of complainants alleging illegal or unauthorized withdrawals, it is for the opposite parties to look into such complaint, withdrawals and to account to their customers about those illegal withdrawals. The opposite parties who have contended that the withdrawals must have been made in connivance with the complainants themselves have not made any attempt to establish such allegation. Further, it could be seen that the opposite parties in their reply to the legal notice, version and affidavit have stated as if the complainants did not co-operate with them and have not lodged complaint to the concerned police to investigate into these illegal withdrawals despite their instructions. This stand of the opposite parties in our view found to be funny and not acceptable, because it is these opposite parties who were the custodian of the money of the complainants as the trustees. When such money is withdrawn or taken out from their possession, it is the opposite parties should have given complaint to the concerned police and initiated appropriate investigation to the withdrawals to trap the person or persons behind these illegal transactions. But, it emerges that the opposite parties so far without giving any complaints against such illegal withdrawals despite having come to know prima-facie that withdrawals are made in favour of one John Augustine have blamed the complainants in they having had not filed any complaint.<br /> <br /> 8. The opposite parties after acceding to the grievance of the complainants about illegal withdrawals found to have given credit of Rs.1,00,000/- to the account of the complainants, according to them in order to keep good relationship between themselves and the opposite parties. May be true that the intention of the opposite parties giving credit of Rs.1,00,000/- to the account of the complainants has been done bonafidely without admitting their laps. But, having apparently found illegal withdrawals of certain amounts, the opposite parties should have initiated appropriate enquiry or investigation to lay their hands on the persons responsible for it. The first withdrawal had been done on 22.11.2007 and the last withdrawal was on 01.12.2007. Even after lapse of more than one year, the opposite parties appears to have not initiated any action to investigate into the grievance of the complainants and to unearth the persons responsible for such withdrawals. Therefore, these facts and circumstances warrant that the opposite parties should have taken up the cause of the complainants and in order to find out the person behind these withdrawals but by putting burden on the complainants they found to have kept silent. Even if the opposite parties had initiated any action to investigate the illegal withdrawals they have not placed before this Forum as to what steps they have taken and what is the out come of such investigation, though it is more than one year has already elapsed. The opposite parties have not come forward with any explanation or materials to prove that the withdrawals are made either by the complainants or some one with their connivance. The facts of this case reveal that the withdrawals have been made through phone banking channel, which is found to be a cyber offence. Even that being so, it is the opposite parties who should have initiated investigation to its logical end, but found to have not done anything. As such, we hold that the opposite parties are liable to account for illegal withdrawals of the money from the account of the complainants and they have to pay that amount to the complainants.<br /> <br /> 9. The complainants have sought for awarding of interest and damages in addition to direction to the opposite parties to pay them Rs.6,00,000/-, which has been illegally drawn, but it could be seen that the illegal withdrawals done as a cyber offence cannot be said was within the knowledge of the opposite parties and could have checked it. The incident which looks like a cyber offence, the opposite parties cannot be penalized by granting relief as sought for by the complainants as we cannot directly attribute deficiency to them. With this, we answer point no.1 in the affirmative and pass the following order:-<br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The first and second opposite parties are jointly and severally directed to pay Rs.6,00,000/- to the complainants or credit to their account within 60 days from the date of this order, failing which they shall pay interest at 6% p.a. from the date of this order till the date of payment.<br /> 3. The first and second opposite parties shall also jointly and severally pay cost of Rs.1,000/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 30th January 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />