JUSTICE R. K. AGRAWAL, PRESIDENT

1.       The delay in filing the Appeal, if any, is condoned.

2.       Mr. R. Sreenivasa Rao, learned counsel has filed Vakalatnama on behalf of the legal heirs of the Respondent and has also filed an affidavit bringing on record that the Respondent had expired on 12-06-2016 leaving behind the legal heirs mentioned in the affidavit. The learned counsel submitted that the Respondent has died and is represented by the heirs mentioned in the affidavit.

3.       Heard the learned counsel for the parties and perused the order dated 27-09-2012 passed by Andhra Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) whereby the State Commission has allowed the Complaint in part and directed the Opposite Party (Appellant herein) to pay a sum of Rs.23,13,653/- to the Complainant/Respondent herein with interest @9% p.a. from 02-06-2010 (when the General Power of Attorney (GPA) holder came to know of the fraudulent withdrawal from the account of the Complainant) till the date of realization and a sum of Rs.25,000/- towards compensation for mental agony and a sum of Rs.2,000/- towards costs.

4.       Briefly stated, the facts giving rise to the Appeal are that the Complainant/Respondent is a Non Resident Indian residing in USA. He has residential property at Hyderabad and is maintaining with the Appellant Bank a Savings Bank Account No.1404155000018690 in which he had given his local address only. He was having an amount of Rs.23,13,653/- in his Account out of the rent of his residential houses. He did not visit Hyderabad for more than eight years and did not withdraw any amount from his Account except by cheques. However, the Complainant/Respondent had appointed his sister, Ms. Furyal Fathima as GPA holder to maintain his property. On 02-06-2010, the GPA holder obtained the account statement from the Appellant Bank and to her utter surprise found that the Account carries a credit balance of Rs.52/- only. The rest of the amount had been withdrawn by one Mr. Naimathullah Hussaini, the nephew of the complainant, by using ATM card issued by the Appellant Bank. It may be mentioned here that Mr. Naimathullah Hussaini had obtained the ATM card in his name by mentioning the Account Number of the Complainant/Respondent. Admittedly, the Appellant Bank did not check the Account Number mentioned by Mr. Naimathullah Hussaini in his application for issuance of the ATM card and mechanically issued the ATM card vis-à-vis the Account Number of the Complainant/Respondent. Mr. Naimathullah Hussaini had withdrawn huge amount of Rs.21,88,653/- from the said Account by using the ATM card on numerous occasions. On an application filed by the Appellant Bank a criminal case has been lodged against Mr. Naimathullah Hussaini and the matter is still pending (CC No.612/2012, before the II ACMM, Nampally, Hyderabad). We may mention here that a sum of Rs.1,25,000/- has been withdrawn by the GPA holder by four cheques from the Account of the Complainant in respect of which there cannot be any dispute. The State Commission by the impugned order after analyzing the entire evidence and material on record came to the conclusion that the Appellant Bank is responsible for the deficiency in service as it had not checked the Account Number in the application form filed by Mr. Naimathullah Hussaini while issuing the ATM card and, therefore, is liable to pay the amount withdrawn by Mr. Naimathullah Hussaini by using the ATM card.

5.       The learned counsel for the Appellant submitted that the Statement of Accounts were being sent periodically to the Account Holder and for a considerable period of time the Account Holder (the Complainant/Respondent or the GPA holder) neither raised any objection nor pointed out the alleged withdrawal through ATM card by Mr. Naimathullah Hussaini and, therefore, there is a contributory negligence on the part of the Complainant/Respondent though his GPA and the Appellant Bank cannot be held liable. He further submits that Mr. Naimathullah Hussaini has admitted vide a letter dated 24-09-2010 about his misdeeds and had promised to pay the entire amount within a very short period and, therefore, as the withdrawal has been done by a family member of the Respondent/Complainant, the Appellant Bank should not be made liable to pay the amount.

6.       The learned counsel for the Respondent, however, submitted that in the GPA, which has been issued by the Complainant/Respondent, the GPA holder had not been authorised to operate the Bank Account. She was only expected to deposit the rent received from the various tenants in the Bank Account and the withdrawal of the amount was to be made through cheques issued by the Complainant/Respondent. Whether Mr. Naimathullah Hussaini is a family member or not or misdeeds committed by him will not absolve the Appellant Bank for making good the illegal withdrawals made by Mr. Naimathullah Hussaini. He further submitted that instead of Rs.23,13,653/- which the State Commission has directed the Appellant Bank to make payment, the amount of Rs.1,25,000/- should be deducted from it as the said amount of Rs.1,25,000/- had been withdrawn by the GPA holder by submitting the four cheques issued by the Complainant/Respondent.

7.       Having heard the learned counsel for the Parties, we are of the considered opinion that, admittedly, there is no dispute that officials of the Appellant Bank while issuing the ATM card in the name of Mr. Naimathullah Hussaini had not verified the Account Number mentioned in the application form submitted by Mr. Naimathullah Hussaini as to whether the said Account Number belongs to the Applicant or not. They have mechanically issued the ATM card, thus, giving an opportunity to Mr. Naimathullah Hussaini to withdraw the amount from the Bank Account of the Complainant/Respondent at his own wish. This amounts to deficiency on the part of the Bank Officials for which the Appellant Bank is to be held liable to compensate the loss suffered by the Complainant/Respondent. Merely because the Statement of Accounts were being sent at regular intervals to the Account Holder’s local address, would not make any difference so far as the liability of the Appellant Bank is concerned. It is not in dispute that the amount of Rs.21,88,653/- has been withdrawn by Mr. Naimathullah Hussaini through ATM card which he was not entitled to. Needless to mention that the ATM card can only be issued in the name of the Account Holder even though it may be delivered to his Authorised Representative. In any case, the ATM card cannot be issued in the name of a third person which in the present case has been done by the Appellant Bank. Therefore, in our considered opinion, the Appellant Bank is liable to make good the loss suffered by the Complainant/Respondent and has to pay a sum of Rs.21,88,653/- along with interest @9% p.a. from the date of filing of the complaint i.e.10-03-2011 (instead of 02-06-2010 when the GPA holder came to know of the fraudulent withdrawal from the Account of the Complainant, as directed by the State Commission) till the date of actual payment. However, the compensation of Rs.25,000/- awarded for mental agony and costs of Rs.25,000/- is deleted. The amount has to be paid within four weeks from today to the legal heirs substituted today.

8.       The statutory deposit, along with accrued interest, if any, be returned to the Appellant.

9.       The Appeal stands disposed of with the aforesaid observations.