F.A.No.448/2009 AGAINST C.C.No.115/2008, DISTRICT FORUM-II, Krishna at Vijayawada.

Between:

1.ICICI Bank Limited,

   Rep. by its Branch Manager,

   D.No.40-1-52/5, Sai Nag Complex,

   Near Benz Circle, Vijayawada-520 010.

2. ICICI Bank  Limited,

    Rep. by its Managing Director,

    ICICI Bank Land Mark,

   Race Course Circle,

   Vadodara-390 007.                                          …Appellants/

                                                                                Opp.parties

         And

Consumers Guidance Society,

(A Society Reg. under the Societies

 Registration Act, 1860, bearing

 Registered No.338 of 1995) representing

 Sri Kolli Venkata Subba Rao,   R/o.S-4,

 Kranthi Apartments, Raghu Ram Street,

 Moghalrajpuram, Vijayawada-520 010.  ...Respondent/

                                                                                 Complainant

Counsel for the Appellants    : M/s. P.Ramachandran

Counsel for the Respondent  :      

                   QUORUM: THE HON’BLE JUSTICE  SRI D.APPA RAO, PRESIDENT                                                                                        AND

                                      SMT.M.SHREESHA, HON’BLE  MEMBER

.

                         TUESDAY, THE  THIRTIETH   DAY OF  NOVEMBER, 

                                          TWO THOUSAND TEN

Oral Order : (Per   Smt.M.Shreesha, Hon’ble Member)
                                  ***

Aggrieved by the order in  C.C.NO.115/08 on the file of  District Forum-II, Vijayawada , the opp.parties preferred this appeal.

        The brief facts as stated in the complaint are that the  defacto complainant   is a Consumer Guidance Society  representing the complainant one Mr.Kolli Venkata Subba Rao who had been maintaining and operating  joint NRI account bearing no.63060176539      with  1^st opp.paty in the name of his daughter who is an NRI. The complainant submits that he has never operated the ATM or the Debit Cards even once prior to their cancellation. The complainant approached opp.party no.1 on 14.9.2007   and informed him to cancel the cards and offered to surrender the cards but was informed that the bank authorities would contact him over phone for the purpose of delivering the cards for effecting cancellation. Then one person representing himself as officer of opposite parties Bank  contacted the  complainant over  phone    and asked the complainant to surrender his cards to the person approaching him at his home and accordingly  one person approached the complainant  representing himself from the opp.parties  Bank and took  delivery of  the cancelled and surrendered ATM and Debit Cards from the complainant for the purpose of effecting cancellation.  When the  complainant went to opposite party no.1 for enquiring   his  balance and found that  an amount of  Rs.8,49,100/-  withdrawn money from his account after the cancellation of his ATM and Debit Cards.  He was shocked to know that there was illegal withdrawal of money from his account to a tune of Rs.8,49,100/-  between the period from 16.10.07 to 23.10.07 by an  unknown  person with the cooperation of the  bank staff.  The complainant and the opp.party no.1  lodged  and  First Information Report with the Machavaram Police Station against the  criminal and illegal withdrawal of money.   The complainant approached the opp.parties and demanded   to pay his illegally withdrawn money and he also  approached  Banking Ombudsman  but in vain. Hence the complaint seeking direction to the  opp.parties  for refund of Rs.8,49,100/- along with interest @ 18%  and also  to award compensation of Rs.40,000/- and costs.  

The opposite party  no.1 filed its written version denying that the complainant approached them for cancellation of ATM  and Debit Cards on 14.9.2007.  They contend that on 14.9.2007 the complainant approached them and requested them to cancel the said  cards and they requested the complainant to take the service of banking telephone for cancelling the  said  cards. Accordingly the complainant utilized the services of the banking telephone for cancellation of the cards which is evidenced under first document filed by the complainant. The opposite party contend in their counter that they have nothing to do with the cancellation of the debit cards. Further, if once the customer cancelled the debit card, by using the telephone service his debit card will be cancelled and the customer will be informed either to destroy the debit card or to surrender the same on the address that was informed. The opposite party state that it would inform the customers through  brochures, by notice in the bank,  through internet etc. with regard to security measures to be taken while transacting with the debit card.  The customer will be strictly informed not to give password or pin number of debit/credit card to the third person or unknown person.  If the customer had given the debit card negligently without confirming the identity of the person then the bank cannot be made liable.  The pin numbers are confidential information which is not revealed even to the staff of the opposite party bank.  The bank also states that the complainant has clearly opted for termination of his cards but negligently   allowed an  imposter to reactivate hi the cards by  handing it over  to a third party without making any preliminary enquiry.

        Opp.party no.2 filed memo adopting the counter filed by the opp.party no.1

        District Forum based on the evidence adduced Exs.A1 to A9 allowed the complaint  directing the  opp.parties  to pay  Rs.8,49,100/-   to the complainant with prevailing  interest  on S.B.Account  from the date of the filing of the complaint till the date of payment and to pay Rs.2000/- towards costs.

Aggrieved by the said order, the  opp.parties preferred this appeal.

        Both sides filed written arguments.

        The facts not in dispute are that the complainant has been maintaining and operating joint NRI account in the name of his daughter. It is the case of the complainant that he never operated or used the ATM or Debit Cards even once prior to the cancellation or surrender.  It is the case of the complainant that on 14.9.2007 he went to the bank and met the concerned officer conveying his interest to cancel the ATM and Debit Card.  This is evidenced under Ex.A1 in which the name Kolli Venkata Subbarao is written as against the ATM card  under the column “request” along with his telephone number and  signature. This has also been admitted  by the opposite party. The respondent/complainant submits that he was informed by the bank that an officer would contact over phone for  the exclusive purpose of  taking delivery of the cards for effecting cancellation. This procedure has been admitted by the opposite partying their counter also.   When the complainant  was expecting an official confirmation he was contacted by a person on phone introducing himself as officer of the opposite party bank  and asked him to surrender his cards and the said person took delivery of the cancelled cards for the purpose of effecting cancellation.    Thereafter the complainant got to know and that an amount of Rs.8,49,100/- was withdrawn from his account illegally between 16.10.2007 to 23.10.2007 by an unknown person, who had reactivated the surrendered cards on 16.10.2007. An FIR was lodged and it is the  case of the complainant that the telephone number of the respondent/complainant was changed by an imposter who is none other than an ex.bank employee. Ex.A9  is the findings of the bank with respect to the fraud committed on the account holder Mr.Subba Rao herein . It is admitted in  Ex.A9 as follows:

·        Mandate a/c. holder walked in to branch for blocking of his cards on 14/09/07  and made call to phone banking for the same as he was not using the cards from the inception. The branch had maintained the list of account holders made a calls to the call center, as per the list  the mandate account holder  Subba Rao had made a  call to the call center for blocking of his cards. Subsequently the cards were blocked on 14/9/07 at 11:54 am.

·         On 15.10.2007  there was  a request  for activation of both the cards through internet user id 505 167395.  Subsequently the cards were activated on 16.10.07.

·        There was a frequent funds transfers from this account to the account of M.V.Nageswara Rao (A/c No.630601513380). The address of the beneficiary is Door NO.41-28-3, Anthony Street, Patamata, Vijayawada. Tel No.0866 2407443/9392120256.

·        Beneficiary holder  also received a call from some person posing him self as  an officer from I  bank  and enquired about why he was not using the debit cards. Beneficiary informed the officer that most of the time he withdrew the cash    thorough self cheque only.

·        Beneficiary was not aware of all the funds transfers to his account from the account of Pallavi Kolli.  Beneficiary was  holding the debit card 4667306306074847 and was not aware that this card was blocked and reissued a new card.

·        On 23.09.07 (SR38881010),  there was a request for deactivating of the card  4667306306074847  and request for new card through mobile no.9959511651. Subsequently the card was deactivate and the new card was sent on 26.09.07 by Gati Courier vide airway bill no.529324229.

·        On 01.10.07 (SR39784766), there was a request for reissue of new set of internet banking passwords. The passwords were sent on 03.10.07 through Express IT courier vide airway bill  no.2341466606.

·        On 17.10.07 (SR41543462), there was a request for change of address to JP Nagar, 54-13-31 A  Side of LIC Colony.

·         On 31.10.07 (SR43214835), there was a request for discontinuation of statement. Request was received through mobile no.99595 11651.”      

It is evident from this Exhibit that there was a change asked for by the imposter for change in telephone number and when the bank itself is admitting that there was request from the complainant for cancellation    of ATM, debit cards which he has never used even once, the act of the opposite party,  in acting upon the request for change in telephone number and reactivation of these cards within a few days of request for cancellation , without verifying form the respondent/complainant amounts to deficiency in service.   It is the case of the appellants/opp.parties who also filed written arguments that the complainant himself had negligently given his ATM and Debit Cards to third party and the bank cannot be made liable for such negligence. The appellant/opp.party informed the complainant that they are not authorized to cancel the cards and requested to take the services of the banking telephone for cancellation and further stated that once the complainant cancels the debit cards by using the telephone service he will be informed  that either to destroy the card or to surrender the same on the address that was informed and the bank has taken all the measures and the customers  will be strictly informed not to give their password or pin number to any third party. We observe from the record that there is no documentary evidence  on behalf of the opposite parties  in support of their contention about  any such  strict information given to the customer.  Even otherwise, Ex.A4   which is the complaint given by the bank to Sr.Inspector , Police Station  clearly states as follows:

        “The unknown person had utilized aforesaid ATM cum Debit Card on various occasions and has gained, benefited himself from the same.  It appears that the unknown person had  forged  and fabricated the customer’s  signature on the charge slip generated from  the Card machine and submitted the same to  the concerned merchant and thereby he has benefited himself (Customer’s  signature was exhibited on rear side of ATM  cum Debit  Card). The unknown person knowingly and intentionally had forged my signature on the  charge slip generated  from the card machine and  have submitted the same to concern merchant as genuine document. The charge slip documents was as true, correct and genuine  before the concern merchant and thereby the unknown  person  has wrongfully   gained himself and had caused wrongful  loss to me. 

 Exs.A4 and A9  clearly evidence that the  signature was forged along with the change in the telephone number and when admittedly the bank  is   stating that   on  14.9.2007  the complainant had approached th em for cancellation of his ATM and debits cards which he had not used even  once, and within a few days there is a request  for change in telephone number and the  relevant  signature was forged, the act of the opposite parties  in not informing the respondent/ complainant or verifying from him about the reactivation or request for change in telephone number and also  the admitted fact in Ex.A4 that the third party had intentionally forged the signature of the banking person on charge slip generated from the machine and, we are of the considered view that there is deficiency in service on behalf of the appellant bank and we see no reason to interfere with the well considered order of the District .

In the result this appeal fails and is accordingly dismissed with costs of Rs.2000/-.  Time for compliance 4 weeks

                                                                                        PRESIDENT

                                                                                        MEMBER

                                                                                        Dt. 30.11.2010