KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.845/2012

JUDGMENT DATED :28.11.2014

(Appeal filed against the order in CC.No.96/2011 on the file of CDRF, Kannur order dated : 27.08.2012)

PRESENT

SRI.K.CHANDRADAS NADAR                        : JUDICIALMEMBER

SMT.A.RADHA                                          : MEMBER

SMT.SANTHAMMA THOMAS                        : MEMBER

1. Axix Bank Ltd,

Kannur Branch,

Rep.by its Manager,

Muneeswaran Kovil Road,

Kannur – 1

2. Saji Kurian,                                                               APPELLANTS

Branch Head Axix Bank Ltd,

Muneeswaran Kovil Road,

Kannur – 1

(By Adv.Sri.S.Reghukumar)

VS

1.Manoj Kumar Veanchira,

‘Beena’.P.O , Mottammal,

Kannur District – 670 331

Thorugh the power of attorney holder,

V.C.Padmanabhavan,

S/o.V.C.Kunhiraman,                                               RESPONDENTS

‘Beena’,Mottammal.P.O

Kannur District – 670 331

2. Priya Debnath,

C/o.Kalayan Debnath,

Joy Gopal Das Road,

Atish Apptt. B3 Sodepur,

West Bengal – 700 110

3.Supratim Das,

76/2, Nagbagan Road,

Shyamnagar.P.O

N/L Hari Pada,

Bhatcharajee House,

West Bengal – 743127

                                                                                             RESPONDENTS

4.S.K.Arafath Ali,

Vill – Kowgachi Darji Para,

Shyamnagar.P.O

District – 24 PGS (N),

West Bengal – 743127

5. Tapas Sarkar,

1 No – Gurdaha.P.O

Shyamnagar,

Nr.Gurdaha, Sporting Club,

Shyamnagar,

West Bengal – 743127

(R1 by Adv.Sri.V.P.Mohanan)

JUDGMENT

SRI.K.CHANDRADAS NADAR            : JUDICIAL MEMBER

            Appellants were opposite parties 1 & 2 in CC.No.96/2011 in the CDRF, Kannur. The first respondent was the complainant. He was an account holder of appellant bank. It is alleged in the complaint that he was earlier working in Australia and at the relevant time of incident in Dubai. During March 2010 the complainant had informed the appellants that he was working in Dubai and requested them to change his mobile number in the account to facilitate sms to his Dubai mobile number. That number was furnished to the opp.parties. But they did not change the same even after sending several reminders. On 26.03.2010 the complainant sent the third reminder to the appellants. But they did not respond. They were told that they would be responsible if loss is caused to the complainant due to their inaction to change the mobile number. As on 14.06.2010 there was Rs.1,60,588.86/- in the account of the complainant. Subsequently, it was brought to the notice of the complainant that Rs.1,60,000/- was withdrawn from his account by unknown persons. The complainant never disclosed his password to anybody. Appellants are the only persons knowing the password of the complainant. On coming to know of the withdrawal the complainant submitted complaint before the appellants and they in response informed the complainant that four persons from West Bengal had withdrawn the amount through branches of the appellant bank in West Bengal. The specific allegation in the complaint is that the complainant had not authorized any person to withdraw any amount from his account. The appellants did not communicate the withdrawal of amounts to the complainant through sms or otherwise. The appellants had conspired with the persons who withdrew the amount and abetted the withdrawal and criminal misappropriation of the amount. Hence the appellants are bound to pay the withdrawn amount with interest. The complainant reported the incident to the Superintendent of police, Kannur. He also issued notice through his lawyer to the appellants to which reply was given raising false allegations. Hence the complaint.

            2.        Appellants who were opp.parties 1 & 2 in their version, before the consumer forum admitted that the complainant held NRESB account with them. They further admitted that an amount of Rs.1,60,000/- was withdrawn from the account of the complainant on 14.06.2010 through internet banking facility using valid log in and transaction password provided to the complainant by the opposite parties which were known only to the complainant. The same is not within the knowledge of even the appellants. The police had sought all information from the opposite parties and they had provided all the details to the police. The password of the complainant is personal to him and no third person, even the bank will come to know about it unless the complainant discloses the same. As per the web page of the appellants in the personal banking log in page of the complainant they have mentioned that as a matter of policy Axix Bank would not seek information with regard to user id or password, account details and personal information through E-mails and the customers should not respond to any such e-mails received from an address, that appears to be that of Axis bank. In spite of such information if the complainant is adept in internet banking and carelessly divulged his personal details to any third party, the same would facilitate such fraudulent transaction and this was due to gross negligence on the part of the complainant himself. There was no written request from the complainant to change his mobile number. Hence the appellants did not change the mobile number. The allegation that the appellants conspired with the other opposite parties and facilitated withdrawal of the amount is denied by the appellants. There is no ground to fasten the liability with the appellants. While providing iconnect facility, the bank has incorporate the following clause “we/ I understand and agree that it is my or our duty 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 we also agree that the bank will not be responsible or held responsible and agree not make any claim or demand against the bank in this regard”. This disclaimer clause makes it clear that the appellants can not be made liable for the alleged unauthorized transactions. The appellants have made available the details of the beneficiary of the transactions dated16.07.2010. In spite of that the beneficiaries are not made parties. There was no deficiency in service on the part of opposite parties 1 & 2

             3.       Before the consumer forum complainant and one witness were examined as PWs 1 & 2 and Exts.A1 to A6 were marked on the side of the complainant. One witness was examined on the side of the appellants and Ext.B1 was marked on their side. The consumer forum held that the failure of the appellants to change the mobile number as per request of the complainant was a grave deficiency in service. That apart the appellants have permitted withdrawals exceeding the limit of Rs.40,000/- through ATMs set for a single day. That was also a grave deficiency .Accordingly, the consumer forum allowed the complaint. Opposite parties 1 & 2 challenge the correctness of the decision of the consumer forum in this appeal. The only question that arises for consideration is whether the contentions of the appellants can be sustained.

            4.        Admittedly, the first respondent / complainant was an NRE SB Account holder of the appellant. The allegation that as on the date of incident on 14.06.2010 an amount of Rs.1, 60,588.86 was in his account is not disputed. It is specifically admitted that on 14.06.2010 an amount of Rs.1,60,000/- was withdrawn from the said account of the complainant using internet banking facility available for the complainant. The definite contention of the appellants is that the user id or password which was personal to the complainant might have been disclosed by him knowingly or unknowingly leading to the fraudulent withdrawal. It is the further case of the appellants that the disclaimer clause mentioned earlier in this judgment exonerates them from liability. It may be observed at once that internet banking facility is provided by the banks as a measure to promote their business and may be a need of the times. But it is not that they have no liability at all in the security of the transaction. True the customers also have duties of their own. It is incumbent upon banks to provide internet banking only after ensuring security of the transactions. As to the specific contention that the complainant might have disclosed his customer id or password knowingly or unknowingly, it is pertinent to notice that this is a case in which the perpetrators of the fraud are not unknown to the bank. Investigations revealed that they hail from West Bengal and withdrawals were made from branches of the bank in West Bengal. The appellants have no case at all that the actual beneficiaries had any manner of connection with the complainant or that there was chance for him to knowingly disclose the customer id or password to them. A clear circumstance that would exonerate a bank from liability in such a situation would be when there is evidence to indicate that the complainant in collusion with the actual beneficiaries is trying to defraud the bank by double withdrawal. The point is no such circumstance exists in this case. So the disclaimer clause is not sufficient to exonerate the appellants from liability. It is in the above background, the two circumstances pointed out by the consumer forum, becomes relevant.

            5.        The relevance of the first circumstance is that had the mobile number been changed to one of the Dubai number, the first withdrawal would have been known to the complainant immediately and the complainant could have intervened to stop further transactions. The contention is that no written request was made by the complainant in this regard. That itself, they suggest, was to avoid fraudulent transactions. But this is not a convincing explanation, though even if the mobile number was changed that might not have been sufficient to prevent the fraudulent transactions. The second circumstance pointed out by the consumer forum is highly relevant. It is admitted that Rs.1,60,000/- was withdrawn from the account through ATM on single day that is 14.06.2010 through eight transactions. It is evident from the answer to the interrogatives furnished through the consumer forum that limit for withdrawal through ATM of Axis Bank from the SB account for a single day was Rs.40,000/-. As against this withdrawal of Rs.1,60,000/- was allowed. This circumstance clearly indicates that the bank officials were not vigilant in enforcing the rules set by themselves. This inaction is in no way excusable and the consumer forum is fully justified in finding deficiency in service on the part of the appellants. It is for the appellants, not for the complainant to resort to appropriate remedies against to the actual beneficiaries in the light of the deficiency in service committed by the appellants .

In short, there is no merit in the appeal. Accordingly, the appeal is dismissed but without costs.

K.CHANDRADAS NADAR        : JUDICIALMEMBER

A.RADHA                : MEMBER

SANTHAMMA THOMAS                       : MEMBER

Be/

KERALA STATE

 CONSUMER DISPUTES

REDRESSAL COMMISSION

 SISUVIHARLANE

VAZHUTHACAUD

 THIRUVANANTHAPURAM

APPEAL NO.845/2012

JUDGMENT

DATED :28.11.2014

                           BE/