Punjab

Ludhiana

CC/16/84

Jasvinder Kaur Saini - Complainant(s)

Versus

Indusind Bank - Opp.Party(s)

compl.in person

04 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                            Complaint No: 84 dated 04.02.2016.                                                               Date of decision: 04.09.2017.             

                                                           

Jaswinder Kaur Saini aged about 54 years wife of Shri Balwant Singh Saini, resident of House No.600/A, Jawaddi Kalan, Punjab Mata Nagar, Ludhiana.                                                                                            ..…Complainant

                                                  Versus

IndusInd Bank Ltd., Near NRI Silk Store, Pakhowal Road, Ludhiana through its Branch Manager.

                                                                                          …..Opposite party  

                              Complaint under Section 12 of Consumer Protection Act.

 

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant               :         Sh. Balwant Singh Saini, representative.

For OP                             :         Sh. Alok Mohindra, Advocate.

ORDER

PER G.K. Dhir, PRESIDENT

1.                 Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by pleading that she deposited a sum of Rs.2,00,000/- in cash in her savings bank account No.100028039076 on 11.09.2015. ATM/debit card from that account was applied by complainant with OP, so that there may immediate withdrawal of the amount for meeting personal exigencies of life. In response to that request, complainant received covering letter sent by OP. On opening of the covering letter, it was found that complainant to contact at bank phone to generate PIN of the said debit card. Thereafter, complainant received one call on her registered mobile No.93566-55447 from landline no.022-42271550 shown to be from IndusInd Bank Ltd., Mumbai. That caller verified name and address of complainant, in response to which complainant answered in positive by disclosing the address details along with date of birth. That caller claimed as if one SMS is being sent on the registered mobile number of complainant and complainant should read over the same and thereafter, another call within 5 minutes will be received again. Complainant read over the said message and within 5 minutes a call was received. Complainant was asked the code as mentioned in the message. Thereafter, complainant was called upon to remain on line because PIN is being generated through this system. Complainant, a house wife followed the instructions and PIN was given. Thereafter, complainant was disclosed as if her debit card has become operational from the given PIN to her. All this happened on 10.09.2015. On 12.09.2015 in the morning, when the complainant woke up after night sleep, then she saw several messages of withdrawal of different amounts from her bank account and was stunned to know as if on 11.09.2015 from 11:30 PM onwards, some person had withdrawn the amounts through ATM machine from her bank account. Thereafter, complainant immediately approached OP, who on enquiry disclosed that amounts had been withdrawn from ATM machine at Mumbai on 11.09.2015. Thereafter, as per advice of bank manager, complainant filed an application bearing unique ID No.825441 dated 22.09.2015 with P.S. Division No.5, Ludhiana. A lot of correspondence was entered with OP for ascertaining as to how the amounts had been withdrawn from her account at Mumbai, despite the fact that she was having original ATM card at Ludhiana at the relevant time. Complainant sought refund of the withdrawn amount of Rs.2,03,900/- back in her bank account, but OP did not pay heed to that genuine request and as such, after serving legal notice dated 19.01.2016, this complaint filed by claiming that complainant owing to deficient services provided by OP has suffered mental pain, agony, harassment and humiliation, by claiming that complainant has suffered due to unfair trade practice on the part of OP. Prayer made for directing OP to credit the amount of Rs.2,03,900/- in her account. Compensation for mental pain, agony and harassment of Rs.2 Lac even claimed with such other additional or alternative reliefs to which complainant may be found entitled.

2.                 In written reply submitted by OP, it is claimed that complaint is not maintainable because the allegations of fraud and impersonation leveled against unknown person, who gave telephonic call to complainant. Besides it is claimed that complainant herself was guilty for showing the extreme negligence and carelessness in providing vital and secret information regarding her bank account and the ATM cum debit card details to a stranger without verifying from the bank the antecedents of the caller of the phone. Complainant alleged to be having no cause of action because if fraud committed by unknown person, then OP cannot be fastened with liability becuase owing to the information supplied by complainant herself to unknown person, amount has been withdrawn and as such, complainant for her own fault in providing information, cannot claim that deficient services are provided by OP or it adopted unfair trade practice. Allegations of fraud though denied, but it is claimed that they can be proved by extensive evidence including deposition of the handwriting experts, bringing on record the call details and verifying the veracity of the said call details as well as production of voluminous oral and documentary evidence. Without cross examination of witnesses to be produced, truth cannot be made out and as such, it is claimed that this Forum has no jurisdiction because the dispute can be adjudicated by Civil Court of competent jurisdiction. Besides it is claimed that when issue regarding withdrawal of the amount from the account of complainant was brought to the notice of OP, then later immediately swung into action by lodging complaint with the police for taking action against the person, who might have committed act of fraud. Complainant herself acted against the regular instructions given by the bank and even she did not act in the manner as is expected from a man of common prudence. It is claimed that in public domain matters, the bank regularly cautions, the account holders for not providing any information regarding their accounts to any person whosoever, but despite that complainant ignored the said instructions and gave information. Admittedly, complainant holds savings bank account and  ATM/debit card for convenience of the complainant was provided to her. It is denied that OP ever sent any letter to complainant for calling her to contact the bank to generate the PIN of debit card. There is no requirement of contacting bank for the generation of any PIN for operation of ATM/debit card. As a matter of procedure and practice, the ATM/debit card is sent at the registered address of the account holder and thereafter, the PIN is also sent at the said registered address of account holder. ATM/debit card as well as PIN are sent in a sealed envelope, so that nobody else except the account holder can lay hands on the said important, vital and secured information provided through the documents. Even through the envelope in which ATM/debit card is sent or the PIN is sent, it is specifically suggested to all account holders that after initial operation of ATM/debit card, they should preferably change the PIN so that it always remain secured and in the exclusive knowledge of the account holders only. It is denied that any official of the bank gave telephonic call to complainant for any purpose whatsoever or for verifying name and address of the complainant or for disclosing that SMS is going to be sent. All allegations in this respect vehemently denied. After receipt of information regarding happening of withdrawal of amounts from account of complainant, OP enquired into the matter internally and got knowledge regarding similar complaints by few other account holders also. Thereafter, OP lodged complaint with Commissioner of Police, Ludhiana for requesting him to investigate the matter after registering FIR against the persons, who are instrumental in committing such acts of fraud and cheating. OP fully cooperated with the police in the inquiry of the complaint by supplying all the requisite documents. As per understanding of OP, police is still in process of completing inquiry and FIR would be registered in due course. So no fault can be found with OP. In the present case there are clear instances of the criminal acts conducted by certain persons, who defrauded and cheated the complainant and as such, for redressal of the grievance, complainant should approach Civil Courts. The amount from account of complainant has not been withdrawn by OP. Rather OP acted in extremely diligent manner by taking swift action against the stranger or other persons, who can have knowledge of details of account of complainant and that is why complaint has been moved by OP against all those persons, who can be said to have committed the offences of cheating. Each and every other averment of complaint denied.

3.                 Complainant to prove her case tendered in evidence her affidavit Ex. CA along with documents Ex. C1 to Ex. C12 and thereafter, her representative closed evidence.

4.                 On the other hand, counsel for OP tendered in evidence affidavit Ex. RA of Sh. Arun Sood, officer of OP bank along with documents Ex. R1 to Ex. R16 and thereafter, closed evidence. In fact Ex. R16 was tendered after allowing of application for additional evidence.

5.                 Written arguments not submitted by any of the parties. Oral arguments of representative of complainant as well as of counsel for OP heard. Records gone through minutely.

6.                 Ex. C1 is the copy of savings account of the complainant. Perusal of Ex. C1 supports claim of complaint that an amount of Rs.2,00,000/- was deposited by her in cash in her savings bank account on 11.09.2015 and thereafter, balance outstanding in her account on that date was of amount of Rs.2,03,927.34NP. Further perusal of Ex. C1 reveals that amount of Rs.1,40,000/- through 7 ATM transactions of worth Rs.20,000/- each were withdrawn from her account on 11.09.2015 itself. Besides this an amount of Rs.5,000/- each through 2 other transactions on same date were withdrawn from her account in addition to withdrawal of another amount of Rs.50,000/- on that date itself. Another amount of Rs.3,900/- even was withdrawn from her account on 11.09.2015. So virtually the entire balance amount of Rs.2,03,900/- was withdrawn from account of complainant on 11.09.2015  itself by mentioning the balance of Rs.13.09NP.

7.                 A complaint regarding this incidence of cheating/fraud was lodged by complainant herself with police of Ludhiana City Division No.5, is a fact borne from contents of complaint receipt Ex. C3. Even complainant sent legal notice Ex. C4 to Managing Director of OP bank and sent at least 8 reminders to bank as disclosed by letters Ex. C7 to Ex. C12 and the track record of the sent envelopes through post placed on record as Ex. C5. Despite making all these efforts by complainant, amount of Rs.2,03,900/- illegally withdrawn from the account of complainant has not been credited in her account and as such, representative of complainant vehemently contends that fault lays with OP in not providing due services, particularly when on letter Ex. C2 sent by OP to complainant itself, it is mentioned that ATM pin should be initially generated. In view of this endorsement of Ex. C2 qua generation of ATM pin initially, complainant was bound to attend the call received from Mumbai office of OP and that is why it is vehemently contended that no fault lies with complainant. Besides on Ex. C2 itself, it is mentioned that daily ATM withdrawal limit is of Rs.1,25,000/- on the debit card supplied to complainant, but that withdrawal of Rs.2,03,900/- took place on single date of 11.09.2015 itself and as such, fault contended to be with OP in allowing withdrawal of amount in excess of daily withdrawal ATM limit of Rs.1,25,000/-

8.                 Even if in Ex. C2, it is mentioned that card holder should generate the ATM pin initially, but at the same time, it is mentioned in Ex. C2 itself that call on phone banking may be given at phone No.1860 500 5004. Nowhere in the complaint or in the affidavit submitted by the complainant, it is mentioned that complainant ever gave call to phone banking centre of OP on phone No.1860 500 5004.  Rather it is the case of the complainant that she received call on her registered mobile No. 93566-55447 from alleged landline No.022-42271550 shown to be from IndusInd Bank Ltd. So it is obvious that complainant did not take due care and caution for ensuring that the call received by her for following process of generation of PIN number, was from the genuine authorized caller of OP or not. When specific phone banking number endorsed on Ex. C2, then it was duty of complainant to accept the call for providing information of ATM debit card, from the phone banking number mentioned in Ex. C2. However, complainant after receipt of call from a different number given as 022-42271550 herself supplied the information to the caller as per the instructions given by the caller and as such, the complainant herself has not abided by the instructions issued through letter Ex. C2 in verifying from the provided phone banking no.1860 500 5004 regarding genuineness of the call given for generation of ATM pin. Had the complainant verified from the phone banking number endorsed on Ex. C2, regarding call received on 10.09.2015 by her, then certainly she would not have been victim of fraud committed with her resulting  in withdrawal of huge amount  of Rs.2,03,900/-.

9.                 Even if amount of Rs.2,03,900/- has been withdrawn from the account of complainant on single day namely 11.09.2015 i.e. beyond the daily ATM withdrawal limit of Rs.1,25,000/-, despite that the said withdrawal could not be considered as withdrawal on a single day of 11.09.2015 because after going through EJ report Ex. R16 regarding the transactions in question, it is made out that 15 transactions of ATM withdrawal took place on 11.09.2015 with difference of one or two minutes simultaneously. The 1^st of these transactions of  withdrawal of amount of Rs.20,000/- took place on 23:30 hours on 11.09.2015, 2nd  transaction took place for withdrawal of similar amount of Rs.20,000/- on 23:31 hours, whereas 3^rd transaction took place for withdrawal of amount of Rs.20,000/- on 23:32 hours, 4^th  transaction for withdrawal of Rs.20,000/- again took place on 23:33 hours, but the 5^th transaction for withdrawal of similar amount of Rs.20,000/- took place on 23:34 hours and the 6^th  transaction for withdrawal of Rs.20,000/- again took place on 23:35 hours and  7^th transaction for withdrawal of Rs.20,000/- took place on 23:37 hours. This means that amount of Rs.1,25,000/- was withdrawn from the savings account of complainant through these seven transactions on 11.09.2015 during period from 11:30 PM to 11:37 PM. However, for the 8^th time PIN was changed on 23:38 hours on 11.09.2015 and no withdrawal took place at that time and nor was contemplated at that time. This means that these seven transactions, through which Rs.1,25,000/- was withdrawn took place within seven minutes and after these seven transactions of withdrawal, the PIN code was changed by the concerned. All it is borne from the blue highlighted portion of EJ report Ex. R16.

10.               Further perusal of page No.3 to 6 of EJ report Ex. R16 reveals that 8^th transaction for withdrawal of Rs.20,000/-  took place at 00:00 hours on12.09.2015, whereas 9^th transaction for withdrawal of Rs.5,000/- took place at 00:11 hours on 12.09.2015, but 10^th transaction took place for withdrawal of Rs.10,000/- at 01:26:11 hours on 12.09.2016,  the 11^th transaction of withdrawal of Rs.10,000/- took place on 1:26:50 hours on 12.09.2015, 12^th transaction of withdrawal of Rs.10,000/- took place on 01:27:29 hours on 12.09.2015, 13^th transaction of withdrawal of Rs.10,000/- took place at 01:28:11 hours on12.09.2017, 14^th transaction of withdrawal of Rs.10,000/- took place at 01:28:53 hours on 12.09.2015 and the 15^th last transaction of withdrawal of Rs.3,900/- took place at 01:29:31 hours on 12.09.2015. All these transactions from serial No.8 to 15 are highlighted with yellow portion on EJ report Ex. R16. As withdrawal of Rs.1,25,000/- on 11.09.2015 as referred above took place on 11.09.2015, but withdrawal of balance amount took place on 12.09.2015 from 00:00 hours onwards to 01:29:31 hours and as such, submission advanced by counsel for OP has force that OP bank did prohibit the withdrawal of more than Rs.1,25,000/- in a single day. Rather the person who withdrew the amounts definitely was knowing the withdrawal limits of Rs.1,25,000/- from ATM in question along with that of the closing hours of 11.09.2015 and that is why he started withdrawing the remaining amount on 12.09.2015 from 00:00 hours onwards to 1:29:31 hours. Therefore, the withdrawals in question cannot be said to be beyond the daily limit of withdrawal on the ATM/debit card of complainant. In view of this, submission advanced by counsel for OP has force that bank is not at all at fault due to the alleged withdrawal beyond the daily permissible limit of Rs.1,25,000/-. Rather the person who withdrew the amount was well aware of the procedure of withdrawal in a single day and that is why he further changed code number at the end of ATM operation on 11.09.2015 and choose to start further withdrawal on the date of 12.09.2015. So submission advanced by representative of complainant has no force that in view of non incorporation of date 12.09.2015 in Ex. C1, it should he held as if all the withdrawals took place on 11.09.2015. EJ report Ex. R16 as reflects the date and time of withdrawals and as such, that must be given precedence over the entries recorded in Ex. C1 or Ex. R4. In fact Ex. C1 and Ex. R4 is one and the same thing.

11.               It is vehemently contended by representative of complainant that as OP bank did not check the withdrawals beyond the limit of Rs.1,25,000/- per day and as such, it is a case of contributory negligence resulting in taking place of fraud, due to which there remains zero liability of customer as per clause 6 of Reserve Bank of India notification dated 06.07.2017 bearing No.RBI/2017-18/15 with DBR No. Leg.BC.78/09.07.005/2017-18. Certainly para no.6 of the above said notification of RBI provides that in case there is contributory fraud/negligence/deficiency on the part of bank (irrespective of whether or not the transaction is reported by the customer), customer’s entitlement to zero liability will arise. When there is zero liability/limited liability of customer, then the bank is bound to credit the amount drawn through unauthorized transactions in view of para 8 and para 9 of the above said circular of RBI. However, present is not a case of contributory negligence on the part of OP, but it is a case for which exclusive conduct of complainant in not verifying the credentials of the caller paved way for generation of new PIN resulting in withdrawals from ATM/debit card of complainant. As a different phone number in Ex. C2 is given than that of the phone number from which call received by complainant and as such, the complainant should have verified the authenticity or genuineness of the alleged representative of OP by giving telephonic call either to OP or on the phone number mentioned in Ex. C2. That was not done, but complainant disclosed her name and address herself to the unauthorized caller and thereafter, read over the contents of SMS message to caller by disclosing the code and as such, fault lays with complainant in supplying the information to an unknown person. Before following the instructions of unknown caller, complainant must have verified about the name and address of the caller with designation thereof. Had such precaution been observed by the complainant, then fraud in question would not have taken place. So it is not a case of contributory negligence or a fraud with the assistance of bank and as such, benefit from the above quoted instructions of RBI notification cannot be gained by complainant.

12.               It is not a case of contributory negligence or of fraud on the part of bank and as such, bank is not obliged to refund the illegal withdrawn amount of Rs.2,03,900/- from account of complainant and as such, if despite issue of letters/reminders/legal notice Ex. C4 to Ex. C12, the refund is not ordered by OP, then deficiency in service on the part of OP cannot be found.

13.               Even if the plea taken in the written reply or affidavit Ex. RA of OP may be false that PIN is sent in sealed envelope, due to which the details thereof bound to be known by the account holder only because as per contents of Ex. C2, the PIN was to be generated by the complainant, even then in view of above discussion, it is made out that all the details were made known by the complainant to unknown caller resulting in commission of fraud by the later and as such, fault with OP cannot be found due to withdrawals by unauthorized person.

14.               After taking us through complaint Ex. R5, it is contended by representative of complainant that names of the accused namely M/s. Dolphin Courier, S.B. Singh, Dharminder Singh and Ravinder Singh were known to OP and those accused were the agents of OP, being couriers and as such, connivance of OP with couriers made out from the contents of Ex. R5 itself. That submission of representative of complainant has no force because besides naming the above said four persons in Ex. R5, it is also mentioned as if there are some other unknown persons also who committed the offence. Dolphin Courier or its proprietor Mr. S.B. Singh were engaged by OP for delivery of the parcel containing debit cards and if misuse of those debit cards took place due to connivance of these named accused, then certainly the authority for such misuse was not given by OP to these culprits. Virtually after going through contents of Ex. R5 as a whole, it is made out as if four named accused in Ex. R5 were having knowledge of practice and procedure adopted by OP due to which suspicion on them was expressed for arraying them as accused in matter of withdrawal of amounts in unauthorized manner from the accounts of customers of OP. That expression of suspicion through Ex. R5 by officials of OP was for requesting Commissioner of Police, Ludhiana to trace the real culprits. Rather OP provided CCTV footage, copies of which produced on record as Ex. R6 to Ex. R11, to SHO by writing a covering letter Ex. R12 and as such, same shows as if OP after receiving the complaint took up the matter with police. This CCTV footage provided by OP to SHO after receipt of letter Ex. R13 and as such, OP in no way can be said to have connived with culprits, particularly when after non taking of any information from SHO in respect of registration of FIR, OP even filed complaint Ex. R15 with Ilaqa Judicial Magistrate, Ludhiana under Section 156(3) of Cr.P.C. Had there been connivance of OP with Dolphin Courier and other accused named in Ex. R5 or Ex. R15, then OP would not have filed application under Section 156(3) Cr.P.C. So it is obvious that OP even is interested in prosecuting the concerned culprits, so that its gullible customers may not be cheated by the fraudsters

15.               For finding as to whether really fraud committed with complainant by OP or its associates, voluminous evidence will be required of the witnesses. Such witnesses need be subjected to cross examination for fishing out the truth. Besides the voluminous record of E.J. report; CCTV footage as well as of the banking guidelines and of the complete process adopted by the OP bank, while taking request for debit card etc . is required. The fraud in question alleged to be committed at Mumbai and as such, help of the Mumbai police will also be required for tracing the culprits, whose photographs figure in Ex. R6 to Ex. R11. Identification of these culprits figuring in Ex. C6 to Ex. C11 will also be required for finding  as to in what manner they committed the fraud. As and when such voluminous evidence is required, then certainly allegations of cheating and of fraud cannot be gone into in these summary proceedings of this Forum. As and when intricate and complicated questions are involved in the case, then it will be difficult to decide the case on mere documents because the evidence of experts and record  had to be looked into and as such, these questions must be agitated in the proper Forum or Civil Court because the Consumer Forum must refrain  from arrogating  to itself those powers of close scrutiny of the evidence as per law laid down in cases M/s. Heights Trade (P) Ltd. Vs UCO Bank 2014(1) CLT 481 (NC); Raguvir Singh Vs Branch Head, Axis Bank and another  2010(4) CLT 134 (Consumer Disputes Redressal Commission, Union Territory, Chandigarh) and UCO bank Vs Sh. S.D. Wadhawa 2013(4) CLT 65 (NC). As allegations of fraud and cheating by unknown persons have been leveled in the complaint and as such, those complicated questions cannot be decided in these summary proceedings. So remedy available with complainant is to approach competent court of Civil/Criminal jurisdiction or the police or any other appropriate authority for redressal of grievance. As OP took due steps by lodging complaints with police and even application with Ilaqa Magistrate and as such, deficiency in service on the part of OP is not there at all.  

16.               As a sequel of above discussion, complaint dismissed with no order as to costs, but with the observations that complainant may avail the remedy from competent civil/criminal court or may approach the police or any other appropriate authority for redressal of his grievance.  Copies of this order be supplied to the parties free of cost as per rules. File be indexed and consigned to record room.

 

                                         (Param Jit Singh Bewli)                      (G.K. Dhir)

                                         Member                                              President

Announced in Open Forum.

Dated: 04.09.2017.

Gobind Ram.