Kerala

StateCommission

A/16/334

THE AXIS BANK LTD - Complainant(s)

Versus

JASHIR ASHARAF - Opp.Party(s)

P RADHAKRISHNAN

21 Dec 2018

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 334/16

JUDGMENT DATED : 21.12.2018

 

(Appeal filed against the order in CC.No.101/13

on the file of CDRF, Ernakulam)

PRESENT

SRI.T.S.P.MOOSATH                                : JUDICIAL MEMBER

SRI.RANJIT.R                                  : MEMBER

SMT.BEENA KUMARI.A                   : MEMBER

APPELLANTS

1. The Axix Bank Ltd, XXIV/1352, Bristow Road, Willington Island, Kochi – 682 003

 

2. The Branch Head, The Axix Bank Ltd,  , XXIV/1352, Bristow Road, Willington Island, Kochi – 682 003

 

(By Adv.P.Radhakrishnan & Others)

 

565.  

RESPONDENT

Jashir Ashraf, S/o.Muhammed Ashraf, House No.12/1478A, Mehrab, Chullikkal, Thoppumpady, Kochi – 628 005

                (By Adv.Sri.Sivaram R Menon & Others)

JUDGMENT

SRI.T.S.P.MOOSATH                        :JUDICIAL MEMBER

Opposite parties in CC.No.101/13 of the Consumer Disputes Redressal Forum, Ernakulam, in short, the district forum has filed the appeal against the order passed by the forum by which they were directed to pay Rs 90,000/- with interest at the rate of 7% per annum from 28.05.2012 till realization to pay compensation of Rs 96,000/- for deficiency in service and unfair trade practice.

        2.     The complainant’s case is as follows. The complainant has a savings bank account in the opposite party bank at its Wellington Island on 28.05.2012. He received a phone call styled as verification call from the opposite party bank to confirm the mobile number 919895171777 of the complainant and an SMS from the website of the opposite party bank was also received seeking to provide enhanced withdrawal limit. On the next day the complainant received SMS stating that amounts of Rs 50,000/- and Rs 40,000/- were withdrawn from his account through the internet banking. The complainant has no knowledge of the said withdrawal. Personal enquiry of the complainant with the opposite party revealed that the amounts were transferred on 28.05.2012 into two accounts of the opposite party bank. The complainant made complaint to the police and they have registered a crime. The second opposite party informed the complainant that somebody has operated the internet transfer using the log in ID and password of the complainant which the complainant might have divulged to some third party, who might have misuseD it. The complainant, an educated person who knew the risk of revealing details of strangers did not divulge any details. But the opposite parties were reluctant to disclose the details of the account holders to whose account the money was illegally transferred. The complainant suspected that the opposite parties had made false allegation and they have not disclosed the name and address of the account holders to screen the role of employees who were suspected to have acted in collusion with the designers of crime. The complainant seeks refund of the amount lost with interest and compensation of Rs 1,50,000/- from the opposite parties. The opposite parties filed version raising the following contentions. The mobile phone from which the complainant had received the calls did not belong to any of the employees of the opposite parties or that of the opposite parties. The transactions made in the account of the complaint were valid with proper login ID and password applicable to the account. If the complainant has to been cheated by somebody, it is for the police authorities to investigate the matter and to bring out the real culprit. The complainant had no cause of action against the opposite parties. The opposite parties were never reluctant to disclose the details of the account holders to whose account the money was transferred. Their names were disclosed in the reply notice sent by the opposite parties. There was no deficiency in service on the part of the opposite parties. Similarly, there was no unfair trade practice committed by the opposite parties. The complainant is not entitled to get any relief against the opposite parties and complaint is to be dismissed. 

                   3.  The complainant was examined as PW1 and Exts.A1 to A15 were marked on his side. On the side of the opposite parties DW1 was examined and Exts.B1 to B4 were marked. The letter issued by the Nodal Officer, Bharati Airtel Limited, Kerala Circle is marked as Ext.C1. Considering the evidence adduced by the parties and hearing both sides the district forum have preferred the present appeal.

                   4.  Heard both sides. Perused the records.

                   5.  There is no dispute to the fact that the complainant has got a Savings bank account with the opposite party’s bank. According to the complainant on 28.05.2012 he received a phone call from No.917208951118 styled as verification call from the opposite parties bank to confirm the mobile number of the complainant. An SMS from the website of the opposite party bank was also received seeking to provide enhanced withdrawal limit. On the next day he received an SMS stating that amount of Rs 50,000/- and Rs 40,000/- were withdrawn from his account through the internet banking and according to the complainant he has no knowledge of the said withdrawal of the amount from his account. On personal enquiry the complainant came to know that the amounts were transferred on 28.05.2012 to two accounts in the branches of the opposite parties. The complainant made a complaint to the police and the police has registered the crime. It is contended by the opposite parties that the transactions made in the account of the complainant were valid with proper log in ID and password applicable to the account of the complainant and the complainant might have divulged the details of the account to someone. It is the case of the complainant that he being an educated man who knew the risk of revealing the details of strangers, did not divulge the details to anyone. In cross examination of PW1 nothing was brought out to hold that he was ignorant of banking rules and guidelines issued or he had violated any of them. PW1 deposed that he suspected that some of the employees of the opposite parties acted in collusion with the designers of the crime with with the opposite parties did not disclose the name and address of the account holders to whose account the money was transferred from his account, even though they stated that on enquiry they came to know that the money was transferred to two accounts in the branches of their bank. Ext.A1 is the print out of the SMS received by the complainant which shows that the daily withdrawal limit of the customer has been enhanced to INR 1,00,000 and further Rs 50,000/- has been debited from his account on 28.05.2010 and the balance amount was Rs 40,165.4/-. On 29.05.2012, the complainant received Ext.A2 message which would show that an amount of Rs 40,000/- was debited from his account on 28.05.2012 and the balance amount was Rs 165.40/-. It is pertinent to note that in both these messages the time of transaction is not shown but both messages were received by the complainant in quick succession. It is the case of the complainant that on 28.05.2012 he received a phone call from the No.917208951118 styled as verification call from the opposite parties bank to confirm the mobile no.919895171777 of the complainant. A letter was issued from the District forum to the Nodal officer, Bharathi Airtel Limited, Kerala Circle to furnish he call details of mobile number 9895171777, during the period from 28.05.2012 to 29.05.2012 and the Nodal officer, Bharathi Airtel Limited, Kerala Circle issued Ext.C1 letter dated 18.02.2014 in which it is stated that since they were having call details for a period of one year only, they are unable to provide the call details of the mobile number as required. Ext.B1 is the list of messages sent to the mobile number of the complainant from January 2012 till May 2012. Seven messages are seen generated on 28.05.2012 between 14.04 hrs and 14.17 hrs. The message at 14.16 hrs is an banking alert corborating. Ext.A1 wherein the daily limit was enhanced to Rs 1,00,000/- is seen notified. From the message text produced by the opposite parties as Ext.B1, in page 4, it is seen that the enhancement of daily withdrawal was done immediately after the withdrawal to Rs50,000/- and immediately before the withdrawal of Rs 40,000/- from the account of the complainant. As found by the district forum it would go to show that the withdrawal of the money on two frequent paces and enhancement of limit of withdrawal in between in quick succession could be done only by a technical expert who had access to the so called high security internet banking arena of the opposite parties bank. The enhancement of the limit of withdrawal is not disputed by the opposite parties. They have also not disputed authorship of Ext.A1 message. The money taken from the account of the complainant was had gone to two different accounts maintained in the opposite parties bank in different branches. Even though the opposite parties stated the name of the account holders they were not able to trace out the original account holders of those accounts. In Ext.A14 reply notice the opposite parties had disclosed the name and address of the account holders to whose account, the money of the complainant was transferred from his account through net banking and the opposite parties advised the complainant to take up the matter with those account holders directly for recovering the amounts lost by him.

                   6.  The district forum observed that the said two accounts were fabricated accounts created for the purpose of fraudulent transactions with the connivance of the staff of the opposite partys bank. The counsel for the appellants submitted that the said observation of the district forum is not correct. It is true that there is no evidence to come to such a conclusion, but the facts and circumstances create such a reasonable suspicion. The district forum found that no registration of the crime at the instance of the opposite party bank against those beneficiary account holders and the non freezing of those accounts having sizable balance amount would persuade to go to the conclusion that the thief is in the ship itself. Considering the facts and circumstances of the case it can be seen that the said finding of the district forum is correct. Despite the receipt of the complainant on 29.05.2012 by the opposite parties from the complainant, without proper technical report the opposite parties are seen have attempted to attribute negligence on the part of the complainant through the letter dated 30.05.2012. The opposite parties have not brought in evidence any such technical report relied on by them to come to a conclusion as shows in Ext.A8letter dated 30.05.2012. As found by the district forum it was only after a period of five months from the date of incident the opposite parties had disclosed the complainant about the address of the beneficiary account holders so as to inform the police to aid investigation. As found by the district forum that is to be viewed as a serious flow on the part of the opposite parties and that would also amount to deficiency in service. The district forum found that there was deficiency in service on the part of the opposite parties and so the complaint is entitled to get compensation. Considering the evidence, facts and circumstances we consider that there is no reason / ground to interfere with the said finding. The district forum found that the opposite parties, by permitting to open two fictitious accounts in their bank, in different branches, to facilitate spurious transaction, has to be found to have committed unfair practice. The counsel for the appellant submitted that the said finding of the district forum is without any basis and there is no evidence to arrive at such finding. It is true that there is no evidence to arrive to such a finding, even though there are circumstances to have such a reasonable suspicion regarding that. So the finding of the district forum that the opposite parties committed unfair trade practice is to be set aside. We do so.

                   7.  The district forum directed the opposite parties to pay Rs 90,000/- to the complainant with interest at the rate of 7% per annum from 28.05.2012 till realization. We find no reason / ground to interfere with the said direction of the district forum. The district forum directed the opposite parties to pay compensation of               Rs 90,000/- to the complainant. We consider that the amount of            Rs 90,000/- ordered as compensation is on the higher side and it has to be reduced, especially when interest was ordered on the  amount of Rs 90,000/-. We consider that Rs 25,000/- as compensation will be just and reasonable. The order passed by the district forum has to be modified to that effect.

                   In the result, the appeal is partly allowed, reducing the compensation ordered by the district forum to Rs 25,000/-. In all other counts, the order passed by the district forum will stand.

                        Parties are directed to suffer their respective costs.

                   The respondent / complainant is permitted to withdraw the amount of Rs 25,000/- deposited by the appellant at the time of filing the appeal, on filing proper application and the amount has to be credited toward the compensation ordered.

 

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

RANJIT.R                         : MEMBER

 

BEENA KUMARI.A           : MEMBER

 

 

 

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KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 334/16

JUDGMENT DATED : 21.12.2018