This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that they are the holders of the savings bank A/C no. 425610100005893 maintained with Bank of India, Duttapur Branch, opposite party no. 1 since long and on updating of their pass book for the captioned account they found that Rs.2,90,000/- has been debited against the said account by a number of transactions during the period from 28.8.2017 to 29.11.2017 beyond their knowledge and they lodged a complaint to the branch manager, Bank of India vide letter dt. 4.12.2017 requesting to let them know immediately on receipt of the letter the facts in details of those fictitious transactions and arrange for refunding the amount (along with interest) so withdrawn/debited but the branch manager dialed miserably to discharge his duties and neither he had sent a reply nor arranged to refund the money withdrawn illegally beyond knowledge and a lawyer’s notice was sent to the opposite party no. 1 on 23.1.2018 followed by a reminder dt. 3.7.2018 requesting therein to arrange for refund of the whole amount withdrawn illegally/ fraudulently on or before 8.2.2018 and he also requested to send the replies to the questions along with copies documents relating to suspicious debits withdrawals as mentioned above and the opposite party no. 1 replied to the lawyer’s notice vide their no. DTP/NK/18-19/30 dt. 25.7.2018 but the same was very much frustrating and he did not reply to all the questions and did not give a ‘time-frame’ by which the bank would be able to refund the whole amount although virtually admitted that the money has been withdrawn without the knowledge of the account holder and on 12.2.2018 a letter was sent to Mr. Rajiv Kumar, General Manager (Customer Excellence & Branch Banking), Chief Nodal Officer (Grievance Redressal), Head Office, Star House, C-5, G-Block, 3^rd Floor, West Wing, Bandra-Kurla complex, Mumbai-400051 explaining the whole episode and inaction of the Branch Manager in the matter of redressal of grievances of the account holders but he did not reply to the above mentioned correspondence and on receipt of the letter dt. 25.7.2018 from the Branch Manager, Bank of India another lawyer’s notice dt. 10.8.2018 was sent to the opposite party no. 1 requesting therein to clarify some points relating to the matter and it was also requested to arrange for speedy refund of the amount withdrawn illegally/fraudulently and on receipt of the letter dt. 10.8.2018 the opposite party no.1 sent a reply vide their ref. DTP/NK/18-19/30 dt. 24.9.2018 in which he clarified some points but failed to assure early recovery of the money withdrawn illegally/ fraudulently and up to the date of 11.6.2019 the opposite party no. 1 has been able to refund a sum of Rs.44,500/- in different unequal lump sum amount as mentioned under:

Date                           Narration/particulars                    Amount ( in Rupees)

18.5.2018                            wrong withdrawal adjusted                   Rs.20,600/-

14.6.2018                            wrong withdrawal reversed                   Rs.3,800/-

21.8.2018                            by transfer from:                                       Rs. 5,400/-

18.9.2018                            Malati Dalui                                                             Rs. 2,000/-

1.10.2018                            by transfer from:                                       Rs. 2,000/-

11.6.2019                            amount recover from                               Rs.10,700/-

            The complainants state that the first two narrations/ particulars in the transactions on 18.5.2018 and on 14.6.2018 were correct as per convention of Banking Law and practice but subsequent the narrations/particulars in four transactions on 21.8.2018, 18.9.2018, 1.10.2018, 11.6.2019 are incorrect and objectionable and narrations/particulars of some of the transactions are meaningless (on 21.8.2018, 1.10.2018, 11.6.2019) and the narrations/particulars in the transactions on 18.9.2019 in highly objectionable against the law and the cause of action began to run on and from 2.12.2017 as on that date after updating complainant’s pass book they came to know that Rs.2,90,000/- was withdrawn in 29 suspicious transactions during the period from 28.8.2017 to 29.11.2017 from their account illegally/ fraudulently.

            Complainants filed the complaint petition praying directions upon the opposite parties to refund the whole of un-refunded (Rs.2,45,500/-) amount together with interest @ 18.45% p.s. compounded monthly as explained above immediately and without further delay and to pay sum of Rs.25,000/- towards harassment and mental agony and to pay a sum of Rs.20,000/- as cost of litigation and the opposite party no. 1 be directed to refrain from making such narrations which are against the conventional law and practice of banking practiced by Indian banks and to pass any order/orders as may deem fit and proper.

           Despite receiving notice opposite party did not turn up so the proceedings run up ex-parte against the opposite parties vide order dated 22.11.2019.

         The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition.

    Complainants filed written notes of argument. The evidence on affidavit and written notes of argument of complainants are taken into consideration for passing final order.

            Argument as advanced by the agent of the complainants heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainants are the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainants are entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken up together for easiness of the discussions of this case.

1). In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are the Consumers as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and the opposite parties are service provider.

2). Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs.2,00,000/- i.e. limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

3)&4)  It is the case of the complainants that they are the holders of savings bank account no.425610100005893 maintained by the Bank of India, Duttapur branch, opposite party No.1 since long. On updation of passbook for the captioned account they found that Rs.2,90,000/- has been debited against the said account by a number of transactions during the period from 28.8.2017 to 29.11.2017 beyond their knowledge. So they lodged complaint before the branch manager Bank of India, Duttapur branch, opposite party No.1 vide letter dated 04.12.2017 requesting therein to let them know immediately on receipt of the letter the facts in details of those fictitious transactions and arrange for refunding the amount. But the branch manager failed miserably to discharge his duties and he neither sent a reply nor arranged to refund the money withdrawn illegally. As such the lawyer’s notice was sent to the opposite party no.1 bank on 23.1.2018 followed by a reminder dt. 3.7.2018 requesting to arrange for refund of the whole amount withdrawn illegally. That the opposite party no.1 bank replied to the lawyer’s notice vide no. DTP/NK/18-19/30 dt. 25.7.2018 but the same was very much frustrating and did not reply to all the questions and did not give a time frame by which the bank would be able to refund the whole amount withdrawn illegally that on 12.2.2018 a letter was sent to Mr.Rajib Saxsena, General Manager (customer excellence and branch banking), Chief Nodal Officer (grievance redressal) explaining the whole episode and inaction of the bank manager in the matter of redressal of grievance of the account holders. On reply of letter dt. 10.8.2018 the opposite party no. 1 bank clarified some points but failed to assure early recovery of the money withdrawn illegally/ fraudulently. That as on 11.6.2019 the opposite party no.1 bank has been able to refund a sum of Rs.44,500/- in different. The narration/ particulars in the transaction dt. 18.9.2019 is highly objectionable. The bank cannot disclose the particulars of their accounts and can allow anybody to deposit any amount to their account without their consent. The complainants waited patiently for a period of 20 months but the opposite party no. 1 bank failed to refund the whole amount which was allowed by them to be withdrawn illegally/fraudulently. It is also averred that the opposite party no. 1 bank failed to intent secrecy about the particulars of the account of the complainant and they have allowed Maluti Dalui to deposit money in their account on 18.9.2018. So, the opposite party no. 1 bank has totally failed to protect the interest of their customers in the account in question as 29 suspicious transactions were allowed illegally without their knowledge. Opposite party did not explain as to how those suspicious transactions were allowed illegally. Therefore the transactions show that there is fault/ imperfection/ shortcoming/ inadequacy in the quality, nature and the manner of performance which is required to be maintained by or under law and practice of banking for the time being in force. Complainant referred the banking Tannan’s Banking Law and Practice edited by Binod Kothari in which the duty of a banker to maintain secrecy: secrecy required in the matter of banker customer relationship. Account detail of the customer cannot be disclosed to a third party. Nobody can seek through a writ petition and enquiry into commercial transactions between the banker and customer. And also referred the case decision “Gangaram’s Infotech vs Dena Bank (2002) 2BC 726 (Karnataka High Court)”.

After perusing the photocopy of savings bank account being no. 425610100005893 in the name of complainants that a sum of Rs. 10,000/- has been withdrawn on 28.8.2017, Rs.10,000/- has been withdrawn on 29.8.2017, Rs.10,000/- has been withdrawn on 30.8.2017, Rs.10,000/- has been withdrawn on 1.9.2017, Rs.10,000/- has been withdrawn on 4.9.2017, Rs.10,000/- has been withdrawn on 5.9.2017, Rs. 10,000/- has been withdrawn on 6.9.2017, Rs.10,000/- has been withdrawn on 7.9.2017, Rs.10,000/- has been withdrawn on 8.9.2017, Rs.10,000/- has been withdrawn on 11.9.2017, Rs.10,000/- has been withdrawn on 12.9.2017, Rs.10,000/- has been withdrawn on 13.9.2017, Rs.10,000/- has been withdrawn on 18.9.2017, Rs. 10,000/- has been withdrawn on 20.9.2017, Rs.10,000/- has been withdrawn on 22.9.2017, Rs.10,000/- has been withdrawn on 25.9.2017, Rs.10,000/- has been withdrawn on 17.10.2017, Rs. 10,000/- has been withdrawn on 18.10.2017, Rs. 10,000/- has been withdrawn on 25.10.2017, Rs. 10,000/- has been withdrawn on 26.10.2017, Rs. 10,000/- has been withdrawn on 30.10.2017, Rs. 10,000/- has been withdrawn on 7.11.2017, Rs.10,000/- has been withdrawn on 8.11.2017, Rs. 10,000/- has been withdrawn on 14.11.2017, Rs. 10,000/- has been withdrawn on 16.11.2017, Rs. 10,000/- has been withdrawn on 21.11.2017, Rs. 10,000/- has been withdrawn on 22.11.2017, Rs. 10,000/- has been withdrawn on 28.11.2017 and Rs. 10,000/- has been withdrawn on 29.11.2017. So, a sum of Rs. 2,90,000/- in total has been withdrawn from 28.8.2017 to 29.11.2017.

Then the complainants vide its letter dt. 4.12.2017 wrote a letter to the Manager, Bank of India Duttapur Branch stating that suspicious debit against the savings account being no. 425610100005893 amount to Rs. 2,90,000/- detected while updation of their passbook and requested to take necessary action for refunding the amount withdrawn/ debited through fictitious transactions. Thereafter the complainants served legal notice dt. 23.1.2018 (marked as annexure 3) in which it is stated that a sum of Rs.2,90,000/- has been withdrawn from 28.8.2017 to 29.11.2017 through fictitious transactions. But the concerned branch manager failed to credit the same amount after getting information through letter dt. 4.12.2017 and it is also enquired whether the opposite party have taken any steps to refund the money to the holders of the account, and also enquired the name and address of the person who had fraudulently withdrawn the money from the captioned account and further enquired whether the bank lodged any FIR with the concerned police station regarding the matter and lastly requested to refund the money fraudulently withdrawn to the holders of the account immediately without further delay by 8.2.2018 failing which the holders of the account shall be constrained to take proper steps including criminal proceedings.

The complainants also served legal notice dt. 12.2.2018 to RaJib Saxsena (General Manager Customer Excellence and Branch Banking), Chief Nodal Officer (Grievance Redressal), Mumbai- 400051 stating the suspicious debits in respect of impugned account holding by the complainants. But the opposite party failed to meet the grievances of the complainants.

The letter dt. 25.7.2018 of Bank of India, Duttapur Branch to Ld. Advocate of the complainants in which he acknowledged the letter dt. 23.1.2018 and 3.7.2018 and replied the queries in which he stated that they have already informed their zonal office Howrah, situated at 5, B.T.M. Sarani Kolkata and also stated that they have recognized the person who withdrew money and talked with her many times and already given notice to her for refund of full amount. She has refunded very little amount till date and they also informed their zonal office. The name of the person who withdrew money is Mrs. Malati Dalui of Vill+P.O.- Baksha, Dist- Hooghly and it is also stated that they have already informed their legal department/ ZO on 24.7.2018. As per talk with their zonal office it will take some more time because there is enquiry in process. But they assured that the money will be refunded in full in very due course.

The letter dt. 24.9.2018 of Bank of India, Duttapur Branch to Ld. Advocate of the complainants in which he acknowledged the letter dt. 10.8.2018 and replied that they have one service point which is operated by their business correspondence Mr. Arindam Biswas. Unauthorized withdrawal is taken place from some other service point which is situated at Baksa Gram Panchayat and that service point is not in their control and the name of the person who withdrew money is Mrs. Malati Dalui of Vill+P.O. -Baksha, Dist -Hooghly.The complainants tried their best to get the unauthorized withdrawal from the opposite party. The opposite party admitted such withdrawal by its letters but failed to credit the major portion of the withdrawal in the account of the complainants for which the complainants preferred the recourse of this Forum after prolonged period on 01.08.2019 praying directions upon the opposite parties as incorporated in the prayer portion of the complainant petition.

The complainants herein being educated persons are fully aware of their rights and duties they never compromise with the injustice upon them. So they put the matter before the opposite parties for investigation and lodged complaints before the appropriate authorities for Redressal but when they were refused even by the different authorities of concerned bank then they compelled to take the recourse of this Forum for Redressal. These persons having reputation in the society having no criminal and cheating background raised their voices when they are deprived of getting their hard earned money. The opposite party bank admitted the unauthorized withdrawal in the impugned account lying before the opposite party bank but inspite of assurance, failed to credit the total amount withdrawn from the account of the complainants.It is pertinent to mention that the opposite party identified the person who committed such crime to withdraw unauthorizedly from the account of the complainants but failed to recover the amount from the person and failed to seek any penal action from the investigating agency. As a result the consumer suffers a lot at the behest of negligence on the part of the opposite party bank. It is fact that opposite party getting complaint from the complainants never tried to investigate the matter or showed good gesture upon the complainants to credit the same amounts which have been withdrawn from their accounts. It is the duty of the bank to investigate the matter if any crime committed in the account of any account holders of the opposite party bank. But in the instant case the opposite party bank always tried to evade its responsibility on the lame excuses and never tried to provide service to its customer/consumer. From the above discussion we may safely conclude that the opposite party bank is deficient in providing service towards its consumers for which the opposite party bank is liable to pay compensation and other reliefs as prayed in the prayer portion of the complaint petition to that extent as ascertained by this Forum.

Hence, it is ordered that the complaint case being no. 103 of 2019 be and the same is allowed  ex-parte against the opposite party with a litigation cost of Rs.10,000/-.

The opposite party is directed to refund the a sum of Rs.2,45,500/- along with interest since the date of withdrawal @ 9% p.a. till thedate of realization within 45 days from the date of passing final order.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the ‘Consumer Legal Aid Account’.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.