This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `1,60,000 with interest to the complainant from 14.06.2010 till realization along with `50,000 as compensation with cost.

The case of the complainant is that he is the account holder of 1^st and 2^nd opposite party having No.159010100094823.  He was earlier working at Australia and now at Dubai.  During March, 2010 the complainant informed the opposite parties that he is working at Dubai and also requested to change his mobile number in the account for SMS to his Dubai mobile number.  The Dubai mobile number 971557740062 was furnished to opposite parties.  But they did not change the same even after sending the reminders to several times. On 26.03.2010 the complainant sent third reminder by message to the opposite parties stating that even after sending reminders no mobile number of the complainant was changed as informed to them and the opposite parties will be responsible if any loss is caused to the complainant due to information not being communicated to the complainant on the correct mobile number by SMS by the opposite parties of any transactions touching the account of the complainant.  The complainant never disclosed his password to anybody and the opposite parties are the only persons knowing the password of the complainant.  On 14.06.2010, there was `160588.86 in the account.  There after, it as brought to the complainant that `160000 was withdrawn by unknown persons to complainant.  Knowing the same complainant submitted a complaint on 01.07.2010 to the opposite parties. Opposite parties responded stating that on 14.06.2010 `160000 was withdrawn by four persons from West Bengal through the branches of opposite party.  The complainant has not authorized any persons to withdraw any amount from his account.  No such withdrawal was communicated to the complainant by opposite parties as SMS or otherwise.  So opposite parties have conspired with those who withdraw the amount and abetted the withdrawal and criminal misappropriation.  So the opposite parties are liable to pay the same with interest due.   The complainant reported the same to the Superintendent of Police, Kannur and issued a registered lawyer notice informing them to return `1,60,000 with interest and compensation.  The opposite parties issued a reply with false statements.  The allegation of the opposite parties that the complainant divulged the password to the 3^rd opposite party is false and the complainant does not know the persons who withdraw the amount from the account.  The opposite parties are the persons who know the password of the complainant.  So it must be the opposite parties fraudulently divulged the password to the persons who withdraw the amount.  The opposite parties made demand in the reply to wait till the police investigation is over.  Such demand cannot be accepted by the complainant and the same is made with intention to drag the matter.  Hence this complaint.

In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version Opposite party No.3 to 6 remains absent eventhough proper notice were issued to them.

1^st and 2^nd opposite party filed version admitting that the complainant holds NRESB account with opposite parties having No.159010100094823 and also admits that `1,60,000 was withdrawn from his account on 14.06.2010 through internet banking by using valid login and transaction passwords provided to the complainant by opposite parties which are known only to the complainant.  The same is not within the knowledge of even the opposite party.  The complainant has already filed a police complaint with Superintendent of Police, Kannur on 26.07.2010 against the alleged unauthorized transaction that have been taken place in the account of the complainant.  The police had sought all necessary information and the opposite parties had accordingly provided all the details to the Police.  The passwords of the complainant was personal to him and no third person even the bank will come to know about such password unless he has disclose the same and the presumption that arises is that the transactions have been authorized by him.  As per the web page of opposite party in its Personnal Banking login page of the complainant the opposite parties have mentioned that as a matter of policy Axis Bank would not seek any information with regard to user ID/ password, account details and personal information through e-mails and the customers should not respond to any such e-mails received from an address which is appearing to be that of “Axis Bank”.  Inspite of such information if complainant adept is internet banking had carelessly divulged his personal details to any third party the same would have facilitated such fraudulent transaction in the account and for such gross negligence on his part the opposite parties cannot be made liable.  There was no written request from opposite party to change the mobile number of complainant and therefore the number was not changed in the Bank record. The allegation that the bank has conspired with the persons who had withdrawn the amount is denied.  The fact that the mobile number of the complainant was not changed under an e-mail request of the complainant cannot be a ground to fasten the liability with bank for withdrawal that had taken place in the account.  The mobile alert facility is only an added facility given to the account holders by the bank to enable him to know the details of transaction is taking place in his account, to know balance amount etc.  It is an undisputed fact that the disputed transaction had taken place in the account through connect with a valid login ID and password which are known to the complainant only.  The complainant might have divulged the said details negligently which might have facilitated such withdrawals.  So the withdrawl would have occurred only because of the passing of password either knowingly or unknowingly by the complainant himself since iconnect facility does not give room for allegation of foul play or fraud.  While providing iconnect facility the bank incorporated the following clause ie “we/I understand and agree that is my or our duties to protect and keep the user id and password protected safe and secured.  We/I shall be fully responsible for any of the linked accounts getting debited.    Based on the instructions given through my/our i-connect user ID and password and we also agree that the bank will not be responsible or held responsible and agree not to make any claim or demand against the bank in this regard”.  This disclaimer clause as well as  the factual matrix makes it clear that this opposite party cannot be made liable for the alleged unauthorized transaction taken place in the account of the complainant.  The opposite party had immediately on receipt from the customer taken steps to freeze the account to avoid any further transaction and also taken steps to bring out the correct facts.  The opposite party had also provided complainant with the details of the beneficiaries of the said transaction as per letter dated 16.07.2010.  Inspite of the above the complainant has not made the beneficiaries as necessary parties to the complaint for the reasons best known to him.  So the complainant is bad for non-joinder of necessary parties.  So from the facts of the complaint the complainant is guilty of negligence and has not exercised due care and caution.  So the complainant is liable to be dismissed.

Upon the above contentions the following issues have been raised for consideration.

1.     Whether there is any deficiency of service on the part of opposite parties.

2.     Whether the complainant is entitled to any relief?

3.     Relief and cost.

The evidence in the above case consist of the oral testimony of PW1, PW2 and DW1 and Ext.A1 to A6 and B1.

          The case of the complainant is that `1,60,000 was withdrawn by unknown person from the account of him with 1<sup>st</sup> opposite party’s bank on 14.06.2010 and the complainant has not authorized any one to withdraw the amount from the bank and not disclosed the password or login ID to anyone and the bank has not changed his phone number to Dubai number eventhough he had requested to do so through e-mail.  In order to prove his case he was examined as PW1 and PW2 also examined and produced documents such as copy of the communication given by the complainant to bank, statement of accounts, lawyer notice, reply notice, interrogatories and its answers filed before the Forum, and attested copy of the passport of the complainant.  In order to disprove the case opposite party also examined an expert witness as DW1 and marked his report as Ext.B1.  The 1<sup>st</sup> and 2<sup>nd</sup> opposite party admits that the complainant holds an NRESB account with them having No.159010100094823.  It is also admitted by them that `1,60,000 was withdrawn from the account by some unknown persons.  But according to opposite party these transactions was done through i-connect by using valid login and transaction passwords provided to the complainant by the opposite party and according to the 1^st and 2^nd opposite parties, the complainant adept in internet banking had carelessly divulged his personal details to third party.  But according to the complainant he has not disclosed his personal details to anybody and on the other hand the bank in collusion with other persons had withdrawn the amount and hence the withdrawal was with the knowledge of the bank.  But the documents produced show that complainant several time requested the 1^st and 2^nd opposite parties to change his registered mobile number from Australia to Dubai, since he is working in Dubai and this request was made by him from March  2010 onwards and bank has not acted upon request by saying one or other reasons.  This is a grave deficiency on the part of the bank and if his Dubai number is registered it will known to him within seconds of transaction.  But according to the bank the complainant has not requested properly by writing for change the number.  Ext.A1 is the e-mail copy issued to the bank by the complainant.  This Ext.A1 e-mail is to change the existing number to Dubai number and also contain a reply e-mail from Axis bank. This e-mail speaks that “for changing the mobile number, you are kindly requested to contact the branch at the following e-mail id Kannur.operationshead@axisbank.com”.  Accordingly the complainant again contacted the opposite party through e-mail in the above e-mail address”.  This shows that the opposite party used to receive request to change registered phone number through e-mail.  Moreover 1^st and 2^nd opposite party has not produced any documents to prove that they will change the phone number only through written request by the complainant directly. 

          Above all in Ext.B1 report, in page No.7 and 8, it was mentioned about the details of documents based by the expert and item No.1 to 16 are the documents and e-mail with respect to change of phone number and from these it is seen that the complainant had accepted and acted upon all the direction issued by the officers of the bank.  So the excuses put forwarded in the version by the opposite party in changing the registered number cannot be accepted and is made only for the purpose of the case.  So there is grave deficiency on the part of the bank for not changing the registered phone number.

          Yet another question to be answered is whether there is any deficiency on the part of the bank in withdrawing the amount by third parties.  The bank contended that the money was withdrawn from the bank by using valid login and transaction passwords provided to the complainant.  But the complainant contended that he has not disclosed the same to any other person. But the DW1 the expert witness who conducted enquiry and submitted Ext.B1 on behalf of 1^st and 2^nd opposite parties deposed that “There is IT department of the bank.  IT department of the bank cannot get the details, but possibility is there.”  He further deposed that “It is possible that somebody misrepresents the account holder and bring the original passport, then only to change.  Generally it cannot possible.  But everything is possible illegally.”  The DW1 further deposed before the Forum that all the transactions were performed from Mexico and on the basis of investigation, I concluded that it is a phishing where the account holder have fallen prey.”  Above all Ext.A5(2) ie answer to the interrogatories, shows that the limit for withdrawal through ATM of Axis bank for SB account is `40,000 per day.  But Ext.A2 statement and also as per page No.23 of Ext.B1 report.  It is clear that `1,60,000 was withdrawn from the ATM on 14.06.2010 through eight transactions.  That means the phishing persons have withdrawn more than this limit on a single day.   This itself clearly indicates the deficient service of the bank.  If the bank is vigilant the withdrawal per day from the SB account is only `40,000 and will shortened the loss.  So from the above description it is seen that there is deficiency of service on the part of 1<sup>st</sup> and 2<sup>nd</sup> opposite party in safeguarding the interest of customers.  The 1<sup>st</sup> and 2<sup>nd</sup> opposite party stated that the amount was withdrawn by opposite party No.3 to 6.  The Ext.A5(2) further shows that eventhough the bank has made a complaint they have not followed up the procedure even to find out what are the charges levied against opposite party No.3 to 6 and has not taken any steps to recover the amount from the opposite party No.3 to 6 through legal measures.   Considering all these aspects we are of the opinion that opposite party are liable to pay the above said amount of `1,60,000 to the complainant with 12% interest from 14.06.2010 upto the date of realization with `2,000 as cost of the proceedings.  They can realize the amount from opposite party No.3 to 6 through legal measures after paying the amount to the complainant and passed order accordingly.

          In the result, the complaint is allowed directing 1^st and 2^nd opposite party to pay `1,60,000 (Rupees one lakh sixty thousand only)  to the complainant with 12% interest from 14.06.2010 to the date of realization with `2,000 (Rupees Two Thousand only) as cost of the proceedings.  They can realize the amount from opposite party No.3 to 6 after paying the amount to the complainant.  The 1^st and 2^nd opposite parties has to pay the amount to the complainant within 30 days of receipt of this notice, failing which complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

Dated this the 27^th day of August, 2012.

Sd/-                    Sd/-

President             Member

APPENDIX

Exhibits for the Complainant

A1. Communication given by the complainant to bank.

A2. Statement of accounts (01.06.10 to 30.06.10)

A3. Lawyer notice.

A4. Reply notice.

A5 series. Application for interrogatories.

A6. Attested copy of the passport of the complainant.

Exhibits for the opposite parties

B1.  Report submitted by KPMG to the bank dated 04.05.12.

Witness examined for the complainant

PW1.  Complainant

PW2.  Ashutoshkumar Jha.

Witness examined for opposite party

DW1.  Muralikrishna Talasila.

                                                                        /forwarded by order/

                                                                     SENIOR SUPERINTENDENT