COMPLAINT FILED: 26.06.2008<br /> <br /> <br /> 04th SEPTEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1419/2008<br /> <br /> <br /> COMPLAINANT <br /> <br /> Avanish Kishore,<br /> Son of Dr. Kaushal Kishore,<br /> Aged about 31 years,<br /> R/o. # 15, Lottegullahalli Railway Colony,<br /> RMV – IInd Stage,<br /> Bangalore – 94.<br /> <br /> Advocate (Col Bhupinder Singh)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. The Managing Director<br /> and CEO,<br /> ICICI Bank Towers,<br /> Bandra-Kurla Complex,<br /> Mumbai – 400 051.<br /> <br /> <br /> 2. Regional Head ICICI Bank Ltd.,<br /> Commissariat, Opp to Mayo Hall,<br /> Commissariat Road,<br /> Bangalore – 560 001.<br /> <br /> <br /> 3. Mr. J. Mohanti,<br /> Branch Manger,<br /> ICICI Bank Ltd.,<br /> No.5, Pet Colony, <br /> RT Nagar Main Road,<br /> Next to Shanti Sagar,<br /> Bangalore – 560 094.<br /> <br /> Advocate (B.S. Sudhir)<br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.5,00,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant is the savings account holder at OP.3 bank since October 2005. Though there is a facility of net banking, complainant never utilized the same. With all that during the absence of the complainant OP.3 in collusion with the other staff of their Bank cheated and defrauded the complainant by transferring an amount of Rs.2,10,800/- illegally in favour of unknown 3rd party. Complainant never registered himself towards the net banking. Complainant left to his native place on 16.12.2005 in the State of Bihar. At that time he had a balance of Rs.2,10,891/- at his account. He returned back to Bangalore on 29.01.2006. When he intended to draw Rs.5,000/- from his account. To his utter shock and surprise it was revealed that there is only Rs.91/- at his balance, so he could draw the said amount through ATM. Immediately he contacted OP.3 about the fraud, misappropriation and cheating. During that time he came to know that under several transactions the said amount was withdraw by the unknown 3rd party by mis-utilizing the internet banking as well as user ID and password. He felt that there is a collusion in between the stranger as well as the OP.3 and its staff. He immediately lodged complaint to the COD Cyber Crime Branch, a case was registered and it is under investigation. For no fault of his, he was made to suffer both mental agony and financial loss. It is all because of the carelessness and negligence on the part of the OP.3 and its staff. OP.1 and 2 who are the supervisory heads of OP.3 are also jointly and severally liable to compensate him with regard to the loss suffered by him. When his repeated requests and demands went in futile, he felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version mainly contending that the said account was activated on 26.09.2005 and operated till 18.01.2006. The said transactions of transfer of money took place 3 times. It is the complainant who operated and drawn the said amount or he must have deviated the code number and ID number with respect to the net banking operation to the some third party. The said third party the fraudster after getting the confidential information from the complainant has done this mischief. A complaint to the Cyber Crime Police is lodged. OP produced the necessary documents and information about the alleged beneficiaries. No fault lies with the OP. There is no deficiency in service muchless carelessness and negligence on the part of OP as alleged. There is no collusion between the staff of OP.3 and the alleged fraudsters. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant has got the Savings Bank account at OP.3 Bank since October 2005. Of course net banking facility was also provided. At no point of time complainant utilized the same. OP has not produced any such other document to show that complainant operated the said account through net banking in the year 2005. According to the complainant on 16.12.2005 he proceeded to his native place situated in State of Bihar. At that time he had a balance at his account to the tune of Rs.2,10,891/-. He returned back to Bangalore only on 29.01.2006 from his native place. He was not well while he was at native place. He has taken the treatment, the Doctor certificate is produced.<br /> <br /> 7. It is further contended by the complainant that in order to withdraw Rs.5,000/- from ATM he made an attempt to draw the said amount on 29.01.2006. But to his utter shock and surprise ATM did not allow his claim and displayed that only Rs.91/- is at his balance pertaining to his account. Complainant was shocked to note the said fraud. Complainant has produced the relevant records to substantiate his allegations. According to the complainant OP.3 along with the staff and fraudsters in whose favour the said money was transferred drawn an amount of Rs.2,10,800/- on various occasions by mis-utilizing the PIN and ID number. He immediately contacted the OP.3 to know about the mischief and fraud committed. But he could not get the satisfactory reply.<br /> <br /> 8. Complainant has produced the documents with respect to net banking transactions pertaining to his account. An amount of Rs.49,000/- was drawn twice and Rs.2,000/- was drawn on 31.12.2005, on 3rd January Rs.25,000/-, 4th January again Rs.25,000/-, 5th January Rs.14,000/-, 10th January Rs.25,000/-, 18th January Rs.21,800/-. All these transactions are done through internet banking debiting the said amount from the account of the complainant. The beneficiaries are the 3rd parties unknown to the complainant. The documents to that effect are produced. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. <br /> <br /> 9. There is a need to enter the internet banking user ID and the password, which is known to the OP.3. Complainant never utilized the said internet banking at no point of time. Hence complainant felt the collusion between OP.3 staff and the fraudsters, that is why he lodged the complaint to the COD Cyber Crime Branch and the case is registered, three fraudsters are arrested, investigation is under progress. We are satisfied that before operating the internet banking it is imperative on the part of the official to ensure with the customer is registered with proper ID. Here in this case it appears OP.3 and its staff members on the basis of the temporary ID provided at the time of opening of the account misused it and indulged in the illegal act floating the guidelines given by the RBI. On the perusal of the other documents the account holder has to give two passwords that is “login” password and “transaction” password. None of the same were either demanded nor filed by the complainant in the bank records of internet banking. Under such circumstances the allegation of the OP that complainant himself drawn the said amount rather does not hold much force.<br /> <br /> 10. OP admits the withdrawal of the said huge amount on several occasions, but never made the countercheck. As against this unimpeachable evidence of the complainant which finds full corroboration and support from the undisputed documents, the defence set out by the OP appears to be defence for defence sake, just an eye wash, to save its skin out of sin. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP.3 and its staff. For no fault of his, he is made to suffer both mental agony and financial loss. There is a proof of carelessness and negligence on the part of the OP.3 in fraudulently transferring the said amount and permitting the stranger to draw the said amount.<br /> <br /> 11. We are satisfied that the said fraud has been committed during the absence of the complainant. On the relevant dates when the amount was drawn and transferred complainant was at his native place and is not well. There is a proof that complainant ever operated the said net banking. There is a prima-facie proof on the face of records and it is apparent that the Bank is colluded with the fraudsters. It is unfortunate that though Bank is aware of the fact that its customer like complainant is to put to a huge loss on account of the fraud and misappropriation committed by its staff and other 3rd party the fraudster, but still it did not open its eye and check it nor stopped the said mischief, on the other hand encouraged the fraudster. If OP would have been little diligent after coming to know one or the two transactions atleast for courtesy sake would have informed the complainant about the amount having been transferred through net banking because earlier to that complainant never utilized the said facility. But no such steps are taken. Here also we find the carelessness and negligence on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under such circumstances he is entitled for the relief claimed.<br /> <br /> 12. In view of the elaborate discussions made by us in the above said paras, there is a proof of mistake committed by OP Bank and its employees. There is a proof of negligence in discharging their duties which has lead to heavy monetary loss to the complainant. If the Bank employees are negligent in discharging their duties in floating the norms of the RBI and financial institutions, then the Bank has to suffer for the blatant mistake committed by its employees. The Bank amount is insured no such loss will be caused to the Bank. The customer cannot be allowed to suffer for the wrong committed by employees of the Bank. For these reasons we find it is a fit case to direct the OP to reimburse the amount which complainant has lost due to mischief, fraud committed by OP.3 and its staff and pay some compensation. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP’s are directed to pay Rs.2,10,800/- the financial loss suffered by the complainant in view of the alleged fraudulent internet banking and pay a compensation of Rs.25,000/- and litigation cost of Rs.1,000/-. This order is to be complied within 4 weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 04th day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br />