Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-10 dated 24.01.2022
1. Mrs. Pramila Bhatia wife of Shri Gopal Bhatia
r/o 24/5, Ground Floor, Old Rajinder Nagar,
New Delhi-110060
2. Gopal Bhatia son of Late H.N. Bhatia
r/o 24/5, Ground Floor, Old Rajinder Nagar,
New Delhi-110060. …Complainant
Versus
OP1: Kotak Mahindra Bank Ltd. (through its Branch Manager),
Mr. Gaurav Nassa, Having Branch at79, Ground Floor,
Old Rajinder Nagar Market New Delhi-110060
OP2: Mr. Amit Chawla, Regional Business Manager,
Kotal Mahindra Bank Ltd. New Delhi-110060 ...Opposite Parties
Senior Citizens case
Date of filing: 24.01.2022
Date of Order: 04.10.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainants have grievances of deficiency of services against OPs in the banking business services that the complainants were asked to update KYC and during that phase of inquiry, immediately an amount of Rs. 50,000/- was deducted from their account. When they reported in the bank immediately and during the phase of appropriate instruction to freeze the account, in the physical presence of officers of OPs, further amounts were deducted one after the other transaction, the total amount deducted was Rs.1,20,000/-, which was accountable and attributable to the negligence of OPs and also for want of security of funds of the complainant on the part of OPs. The OPs failed to initiate immediate action as well as they failed to furnish account and its detail, where the amount has been actually reached. That is why the complaint for refund of Rs. 1,20,000/- siphoned from the account of the complainant, Rs. 1,00,000/- as compensation on account of mental harassment and agony suffered by senior citizens/ complainants, litigation cost of Rs. 35,000/- besides other relief.
1.2. The complaint has been opposed by the OPs that there is no negligence or deficiency of services on their part but in fact the complainants were negligent by sharing their account detail, password etc. to the unknown persons, which they were not supposed to share such vital details. The OP had also written refund recall requests to SBI, Axis Bank and Paytm. No claim is made out against OPs.
2.1. (Case of parties) –The complainant no.1 and the complainant no. 2 are senior citizens aged about 67 years and 69 years respectively, they maintain their joint account no. 3712904031 with the OP1 Kotak Mahindra Bank for the last about 2 years. The OPs do not deny these facts in their joint reply.
2.2. The other facts narrated by the complainant [but denied by the OPs in their reply] are that on 16.05.2020 the complainant no. 1 received message on her contact number 9871863864 from OP1 bank by inquiring information to update KYC, considering and trusting on the bank as well as being the Covid-19 period and following lockdown restriction guidelines, the OPs were provided the requisite information. The moment detail was being provided, simultaneously an amount of Rs. 50,000/- was deducted from their account, immediately OPs' Senior Bank official Mr. Girish Jha was contacted, who asked the complainant to rush to the bank branch. Accordingly, it was reported and another bank official Ms. Kiran Chauhan present was apprised of the fraud. Another amount of Rs. 50,000/- was debited in the account of complainants. Mr. Girish Jha asked Ms. Kiran Chauhan to freeze the bank account forthwith to prevent further fraudulent transaction but Ms. Kiran Chauhan went in conversations and in that time space, further amount of Rs. 20,000/- (i.e. Rs. 10,000/-, another Rs. 9,000/- and again Rs. 1,000/-) were deducted from the bank account of complainants, it shows carelessness on the part of bank official and OPs have not provided/equipped with software to secure & safe the account & funds of the customers. The transactions could have been avoid, had OPs/ that bank officials promptly freeze the account immediately but the transactions keep on happening under the nose and presence of bank and its officials.
2.3. The complainants were advised to inform the police regarding fraud of Rs. 1,20,000/- during update of KYC detail and accordingly police was informed; [it is also not disputed by the OPs in their reply].
2.4. The other facts and features of the complaint [which are denied by the OPs] are that bank officials put deaf ears to the valued senior citizen customers, who had put their good amount of savings in their account and fixed deposits. The complainants requested the OPs to update the complainants about status of lodged complaints dated 16.05.2020, 31.05.2020, 06.06.2020 and 09.07.2020 since the money was transferred into other account by fraudulent transactions and it could be trailed but OPs took no action nor provided any information, consequently leaving with no option but to report to cyber cell. The OPs failed to render the necessary record and information but they are showing incompatibility to secure the money of customers. They are guilty of deficiency of services. That is why the complaint.
2.5. The OP1 and OP2 in their joint written statement denies the allegation of complaint against them [which have already been so mentioned in para 2.2 and 2.4 above].
The other contention of complainants are that during KYC update on 16.05.2020, there was deduction of Rs. 1,20,000/- but it is admitted case of the complainants that they themselves compromised confidential personal detail and data to unknown person by sharing password/PIN, when five transactions took place between 01:10pm to 01:22pm (paragraph 6 of the reply enumerates detail of each transaction with IMEI device detail, date and time of transactions and amounts). There was request to freeze the account, it was done at 01:31pm. During investigation by OPs, it was observed that transactions were executed through two mobile devices, on which mobile banking was activated on one time password (OTP), which was sent to complainant on registered mobile number 9871863864. This is complainants, who compromised their confidential detail to stranger in the guise of KYC update, for which OPs cannot be blamed for, reliance is placed on RBI Circular dated 06.07.2017. Otherwise the complainants also wrote refund recall request to SBI, Axis Bank and Paytm but nothing was heard from them. The OPs also extended cooperations in respect of emails of complainant by responding on 29.05.2020 and 17.07.2020. The OPs always cooperated and will also extend complete cooperation and assistance to police in locating and identifying the culprits, however, the police had not sought any information from the OPs. Moreover, the OPs never asked confidential detail related to bank account, debit card, users name, password, PIN, OTP, SMS or other highly confidential information from its customers, rather it suggests to the customers not to share these confidential detail to any person. The complaint deserves dismissal.
2.6 (Replication of complainant) – The complainant responded the allegations of written statement by filing rejoinder and complainants reiterate the complaint as correct as well as the contents of complaint to police has been reproduced to emphasize that they never shared password or other information to the stranger but relevant information to OPs to update KYC. The circular being relied upon by the OPs are not in favour of OPs but they assist the complainants as OPs failed act accordingly to instructions.
3.1. (Evidence)- Complainant no. 1 Ms. Pramila Bhatia and complainant no. 2 Sh. Gopal Bhatia filed their detailed affidavits of evidence, with the support of documentary record of complaints to Bank & to police of P.S. Rajinder Nagar, emails exchanged and complaint to cyber crime.
3.2. Similarly, OPs led evidence by filing affidavit of Ms. Reenu Verma, Branch Operation Manager/ AR of OP1, it is on the lines of reply, while taking support from the RBI guidelines/ instructions and authority letter in her favour.
4.1. (Final hearing)- At the stage of final hearing, written arguments were filed by the OPs and it is hybrid of pleading and evidence. Moreover, Sh. Deepak Vasvani, Advocate for complainant and Ms. Simran Verma, Advocate for OPs made the oral submissions.
4.2. The complainants fortify their contentions while relying upon HDFC Bank Ltd. and another vs Jesna Jose (RP no. 3333/2013, dod-21.12.2020) that amounts were withdrawn by making transactions pertaining to forex card, however, the bank tried to wriggle out from the liability under the garb of circular dated 06.07.2017 of Reserve Bank of India, however, the Revision Petition was dismissed while holding the decision of allowing the amount and award of compensation. Further, cutting of citation of The Time of India of 28.01.2023 is referred of case reporting that under similar set of circumstances the State Bank of India was held negligent and an amount of Rs.5,88.000/- was refund to the customer.
5.1. (Findings)- The contentions of both the sides are considered keeping in view the material on record as well as the documentary record filed, besides the circumstances on of other relevant facts, for which documents could have been filed but withheld by OPs.
5.2. By taking into account totality of circumstances, the following conclusions are drawn:-
(i) There is no dispute that the complainants have been maintaining bank account with the OP1 Bank. The OP2 is Regional Manager/employee of OP1.
(ii) It was 16.05.2020 when complainant no.1 had received a message from the OP1 bank to update KYC and on plain reading of the record inclusive of evidence that it was never the case of OPs that complainant was not asked for update of KYC.
(iii) There was first transaction of withdrawal of amount of Rs. 50,000/- and during the phase when complainants had rushed to the bank, during that phase also another amount of Rs. 50,000/- by second transaction and then further amount of Rs. 20,000/- by three individual transactions were deducted from the account of complainant, when they were requesting to freeze the account. It is never the case of OPs that complainants have shared their OTPs to the stranger during the presence of bank officials, when transactions took place.
(iv) Since the amounts were debited in account of complainants and it was by use of digital method/ technique/ tool, the record was at the control and disposal of OPs; there was no intervention by the complainants nor they have any role therein. Simultaneously the events took place when the complainants were present in the bank as well as during the presence of bank officials. It indicates that there was some scope or loophole or flaw in the tool or technique in the machine, which is at the disposal or control of OPs.
(v) Whenever, online transactions happens, it has point of origin as well as end point or destination, the OPs defended themselves that they wrote fund recall request to SBI, Axis Bank, Paytm, meaning thereby they were knowing the end point of reaching of the funds. Neither the detail of those accounts nor the letters so requested have been filed and proved by the OPs. Moreover, they have also not provided such information to the victim complainants despite their request but OPs claims that they have been extending the cooperation.
(vi) The OPs also narrated that they responded by reply dated 29.05.2020 and 17.07.2020, however, the same was not filed nor proved by OPs.
(vii) OPs also claim that they have investigated the matter.The complainant are looser of money from their account with OPs and OPs are knowing the trail of money. OPs have material and relevant information of end point where the amount has reached, but information was not provided to complainants when asked for vis a vis on the other-side OPs claims that Police had not asked their any assistance including indentify the culprits. OPs' plea is paradoxical.
5.3. The conclusions drawn in sub-paragraph no. 5.2 proves case of deficiency of services on the part of OPs and an amount of Rs. 1,20,000/- has been withdrawn from the account of complainants, which happened due to negligence on the part of OPs, the complainants are held entitled for refund/ return of their amount of Rs. 1,20,000/-. The complainants also claims interest on the amount, however, the interest rate has not been specified. By considering the circumstances including nature of account, interest at the rate of 6% pa from the date of complaint till realization of the amount will meet both ends.
5.4. The complainants claim compensation of Rs.1,00,000/-. The circumstances are abundantly clear that the complainants had requested not only the bank/ OP1 but also the police and cyber cell, ultimately they were constrained to file the complaint. Therefore, compensation of Rs. 20,000/- will justify both sides. The cost are also quantified as Rs. 5,000/-.
5.5. Accordingly, the complaint is allowed in favour of complainants and against the OP1/Bank to pay/ return amount of Rs. 1,20,000/- along with interest at the rate of 6% pa from the date of complaint till realization of the amount, apart from compensation of Rs. 20,000/- and cost of Rs. 5,000/-. The amount be paid within 45 days, failing which, the rate of interest will become 7% pa (instead of 6%pa) on amount of Rs.1,20,000/-.
5.6. Since OP2 is Regional Business Manager of OP1, he was impleaded in his personal name/capacity by the complainants, however, being an employee of OP1, no order is directed against OP2. The complaint against OP2 as such is dismissed.
6. Announced on this 4th day of October 2023 [अश्विन 12, साका 1945].
7. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
