The present appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 29.01.2019 passed by the District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 219 of 2016 styled as Km. Kriti Rawat vs. Canara Bank, wherein and whereby the complaint was allowed.

2.       The facts giving rise to the present appeal in hand, in brief, are as such that the complainant is the holder of a saving bank account No. 2726101003215; on dated 12.10.2015 Rs. 28,201.33 through four different cheques and on dated 26.10.2015 through six different cheques an amount of Rs. 15,053.10, total amount Rs. 43254.43 was fraudulently withdrawn from the complainant’s account. As per the averment of the complaint, the complainant’s father went to the bank for updating the bank passbook, then this fact came to his knowledge that the above mentioned amount has already been wrongly and fraudulently withdrawn from the complainant’s account, the complainant’s mother Smt. Vimla Rawat reported the matter on 11.01.2010 to the bank, but her compliant was not taken up.  Later on, the complainant’s mother wrote a letter to block the debit card of the complainant’s account, but she was not informed about the action, if any, taken in this regard.  The complainant’s father also sent a reminder letter to the bank, but in vain.  The complainant before going to foreign country – Dubai, handed over her bank pass-book and ATM card to her father, which were never used by anyone.  All the documents relating to above bank account plus ATM was kept in bank locker.  When the complainant returned from Dubai, she made the complaint before the District Commission.  The bank has never taken necessary action in regard to fraudulent withdrawal from the above mentioned account, hence she filed the complaint before the District Commission, Dehradun.

3.       The bank filed its written statement before the District Commission alleging that the complaint was filed with wrong fact.  As per the averment of the complaint, the complainant had already given her bank pass-book, ATM card alongwith PIN to her relative & father.  The complainant was alleging that all the documents relating the bank transaction were locked in locker during 08.03.2015 to 10.01.2016, thereby it is meant that there was no guarantee for their misuse. If the complainant had apprised the PIN number of her ATM card to her family members and if any fraudulent transaction took place, then the bank is not responsible for such transaction.  Apart from it, an inquiry was also held on the basis of the complainant’s complaint, wherein it was neither found any deficiency in service on the party of the bank, nor any negligence on the part of any of the bank employees, hence, the complaint is liable to be dismissed. 

4.       The District Commission / Forum after perusal of the evidence and material available before the learned District Commission record, passed the impugned judgment and order and held as under:-

“उपरोक्तानुसार, परिवादिनी द्वारा योजित यह परिवाद उपभोक्ता संरक्षण अधिनियम 1986 की धारा-12 के अन्तर्गत निम्नानुसार स्वीकार किया जाता है।

विपक्षी बैंक को आदेशित किया जाता है कि वह परिवादिनी को अंकन 43,254.43 रूपये का भुगतान करें, साथ ही अंकन 10,000/- रू0 मानसिक क्षतिपूर्ति हेतु व वाद व्यय अंकन 3,000/- रू0 का भी भुगतान करें। धनराशि की अदायगी 30 दिन के अन्दर सुनिश्चित किया जाये।

यदि निर्दिष्ट अवधि में भुगतान नहीं किया जाता है तो परिवादिनी उपरोक्त समस्त धनराशि पर परिवाद प्रस्तुत करने की तिथि से भुगतान तक 9प्रतिशत वार्षिक दर से साधारण ब्याज भी पाने की अधिकारी होगी।”

5.       Aggrieved by the impugned judgment and order, the present appeal has been preferred before us.

6.       The learned counsel for the appellant – bank has alleged in the appeal that the learned District Commission has failed to consider that the debit card / credit card alongwith PIN number are to be handled with care, secretly and these are not the things to publicize and share even with the family member; the learned Commission below has also not considered that the complainant herself has given mobile number 9411727884 as her mobile number and whatever mobile number was available in the account, bank was liable to send information of credit / debit transaction on that only through SMS which has rightly did. It is also argued that the complainant did not come before the District Commission with clean hand, sometimes she mentions one mobile number, another time the another one and on some other occasion, different number has been used. Besides it, the complainant has alleged the fraudulent withdrawal sometime through different cheques or sometime by using ATM card. It is also contended by the appellant that the respondent is taking different version about fraudulent transaction at different occasions, hence, the appeal is liable to be allowed and the complaint is liable to be dismissed.

7.       The learned counsel for respondent has replied that a fraudulent transaction from her account was done about which no action was taken by the appellant, hence the appellant did deficiency in service on its part, therefore, the learned Commission has rightly allowed the complaint.

8.       We have perused the appeal, reply of the respondent and the material available on record.

9.       The main question of consideration before us is whether there was any deficiency in service on the part of the appellant bank or not.

10.     It is an admitted fact that the respondent – complainant was having a saving bank account in the appellant – bank.  It is also admitted that the respondent – complainant’s mother first time gave information about the alleged fraudulent withdraw of Rs. 43,254.43.  It is also admitted that the bank issued a cheque book bearing number 109126 to 109150 to the respondent – complainant.

11.     The District Commission allowed the claim of the respondent – complainant after deciding the pleas raised by the appellant.

12.     Now the appellant has challenged the impugned judgment of the District Commission.

13.     The appellant has taken the plea that the learned District Commission has failed to consider the fact that the complainant never informed the bank about fraudulent withdrawal inspite of sending SMS by the bank on the account holder’s mobile number. This ground was elaborately discussed by the District Commission and the defense raised by the bank was rightly rejected because of the fact that as per the statement of bank itself and the claimant, SMS was not sent on the mobile of the complainant Ms. Kriti Rawat, which was originally registered in the bank, the appellant has not filed any proof that the account holder has applied for the change of her mobile number with her mother’s mobile number or with another mobile number. 

14.     The appellant has challenged the judgment on the ground of delay in informing such transaction that inspite of receiving SMS, information about false withdrawal never reported by the complainant to the Bank in time and after the period of approximate 2½ months, the respondent – complainant, first time, complained of the alleged fraudulent withdrawal of money from her account. This plea was also raised before the District Commission and in our view, the learned District Commission has rightly considered and decided this issue. We are also of the view that the account holder only got the information about such withdrawal first time when they came to the bank for updating the passbook of the respondent – complainant and immediately thereafter matter was reported, hence, the appellant’s contention about delay in reporting the matter has no force.

15.     The appellant has also raised that the complaint in the bank was filed by the father of the account holder showing the respondent – complainant as minor, while she was major. In our view it makes no difference for the reason that fraud in the account was brought into the notice of bank by the family member of the account holder.  Fraud could be brought into the notice of bank by anyone and bank receiving upon such notice was under an obligation to look and inquire into matter.  This plea has no force that the final complaint was filed by the account holder and an authority letter was given by the account holder to her father.  Moreover, the appellant counsel did not press further this point.

16.     The appellant has also pleaded that there was no deficiency in service and the account holder was herself negligent in giving her cheque book and ATM card to third person / her father.  Simply by giving her ATM card for putting into safe custody to her father cannot be said such type of negligence which can exonerate the bank from its liabilities to maintain her account properly as vigilant custodian unless there was very clean and positive proof of misuse of her card, the bank cannot deny from its responsibilities.  The bank has failed to show any such evidence, hence this plea is not sustainable. 

17.     Though the judgment of the District Commission, we are also of the view that the District Commission has rightly allowed the claim of the petitioner discussing the stand of the appellant – bank wherein the bank itself admitted the case of the complainant and requested the insurance company to reimburse the same.  The bank has not denied this fact.  This alone was and is sufficient to allow the claim of the respondent – complainant.  Admission of fraud in complainant’s account and requesting the insurance company for payment, is sufficient admission to accept the claim of the respondent – complainant.  The bank cannot be allowed to take different stand at the same time.  When the insurance company had disallowed the claim on the ground of delay, even then the bank is under obligation to reimburse the loss of account holder.  Therefore, we are of the considered view that it was gross deficiency in service on the part of the bank.  The appellant’s grounds against the impugned judgment are liable to be disallowed in toto. The judgment of the District Commission is also supported by the judgments of higher courts.

18.     In the result, we find no force in the appeal and the judgment of learned District Commission deserves to be affirmed. 

19.     Accordingly, the appeal is hereby dismissed.  Impugned judgment and order dated 29.01.2019 is affirmed.  No order as to costs.

20.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of the Order be sent to the concerned District Commission for record and necessary information.

21.     File be consigned to record room along with a copy of this Order.