2. While so on 16.12.2016 without the knowledge of the complainant two withdrawals such as Rs.18,452.83/- and Rs.110,72.12 /-were done from the account. Moreover Rs.200/- as two International ATM charges were also debited from the account. Later it was revealed that the amount was withdrawn from Philippines. On 17.12.2016 also there were 2 withdrawals of Rs.5042.31/- and Rs.1681/- and Rs.100/- each as International ATM charges. The withdrawals were not known to the complainant since there was no alert.
3. On 23.12.2016 when the complainant tried to withdraw amount from the account from Ukraine it was not honored since there was no sufficient balance. On the next working day that is on 26.12.2016 complainant contacted the opposite party over phone and it was informed that only an amount of Rs.439/- is available as balance. Complainant sent a complaint through E-mail to the opposite party bank. However there was no action and the bank has not compensated the complainant. Complainant filed a complaint before the banking ombudsman but on 20.03.2017 it was informed that since the withdrawals are from the Philippines they are unable to take any action.
4. If there was proper alert through SMS and facebook app complainant could have taken precaution for preventing the withdrawal. It was a deficiency in service from the part of the opposite party. Opposite party has violated the direction of Reserve Bank of India regarding the action to be taken if loss is sustained in such manner. Hence the complaint is filed for realizing an amount of Rs.36,248/- along with interest at the rate of 12 % and for realizing an amount of Rs.25,000/- as compensation for deficiency in service.
5. Opposite party filed a version mainly contenting as follows:-
The allegations in the complaint are legally and factually unsustainable. Complainant ought to have approached a civil court to redress its grievances. Complainant is a holder of NRI account with the opposite party and SMS/Mail alert facility to phone has been provided. The allegation that he was not provided with SMS/Mail alert on and after 22.01.2016 if false. On a perusal of records it is seen that SMS/Mail alerts were sent to his phone.
6. On 24.10.2016 the complainant has lodged a complaint stating that he is not getting SMS/mail alert. His complaint was resolved without any delay. Thereafter there was no complaint. The password ID provided to the account holder to operate the bank account shall be held in strict confidence failing which the account holder alone is liable for the consequences. No account can be operated for the withdrawal of cash through ATM without using the ATM card and password. If the password or ID or the account number is disclosed or revealed to others the liability due to the consequences there of is on the account holder and not on the bank.
7. The disputed transactions narrated in the complaint are withdrawals through ATM. The disputed withdrawals are made by the complainant or with his knowledge or consent
and not due to the fault of the bank. Immediately after every withdrawal SMS alerts are sent to the account holder informing him about the details of amount and the balance available. SMS alerts are seen sent to the complainant after the disputed withdrawal and he has received those messages. The allegation of withdrawal of amount from Philippines without his notice can never be true. The withdrawals were brought to the notice by SMS alert immediately after the transaction.
The allegation that the bank did not enquire the complaints preferred by the complaint is not true. The complaint was meticulously enquired and the results were promptly intimated. The complainant had filed a complaint against the bank before the banking ombudsman incorporating the allegation and it was dismissed. Thereafter the complainant has approached the Forum and filed the complaint pertaining to the very same dispute and allegations. Since the allegations in this complaint were considered and decided by a competent Forum institution of another complaint thereafter before this Forum for the very same cause is bad and unsustainable. The complainant has no genuine cause of action and he did not sustain any monitory loss due to the acts or omission of the bank. Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.
8. On the above pleadings following points were raised for consideration:-
- Whether the complaint is maintainable.
- Whether there is deficiency in service from the part of the opposite party bank?
- Whether the complainant is entitled to realize an amount of Rs.36,248/- along with interest @ 12% from the opposite party bank as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.25,000/- on account of mental agony due deficiency of service of the opposite party bank?
- Reliefs and costs?
9. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A8 on the side of the complainant. Opposite party has not adduced any evidence either oral or documentary.
Point No.1
In the version a contention is taken that complaint is not maintainable before this Commission. Complainant is a savings bank account holder of the opposite party Federal Bank Ltd. The dispute is with regard to withdrawal of amount from the savings bank account through ATM card without the knowledge of the complaint. Since complainant is an account holder and dispute is with regards deficiency of service the complaint is perfectly maintainable before this Commission.
Secondly it was contented that the complainant had approached banking ombudsman and his complaint was dismissed. Thereafter for the very same purpose this complaint is filed and hence the complaint is unsustainable. Ext.A2 is the complaint filed by the complainant before the banking ombudsman and Ext.A3 is the letter dated 20.03.2017 of the banking ombudsman. In Ext.A3 it is stated that “you are at liberty to approach any other Forum in accordance with law for the redressal of your grievance to your satisfaction”. So it is clear that even though the complaint was dismissed complainant was given liberty to approach any other Forum to redress his grievance. So contention taken by the opposite party in the version that complaint is not maintainable before this commission is unsustainable and so the point is found against the opposite party.
Point No.2 to 4
For the sake of convenience these points are considered together. PW1 is the father and the power of attorney holder of the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7. Ext.A8 statement of account was marked by consent.
The complainant in this case is having a NRI account with the opposite party bank as No.10952100014810. An international debit card was issued to him since he was a student at Ukraine. Complainant used to get messages regarding the transactions in the account by various modes such as SMS alerts mobile app etc. However he was not getting such messages about the transactions from 22.09.2016 and a complaint was given as E-mail on 26.10.2016. However since the complaint was not fruitful on 14.12.2016 he contacted the opposite party from Ukraine and manager of the opposite party assured that they will redress his grievances. While so on 16.12.2016 there were two withdrawals from his account. One is Rs.1842.83/- and another Rs.11072.12/-. Again on 17.12.2016/- there were two more withdrawals as Rs.5042.31/- and Rs.1681/-. Rs.100/- each being the International ATM fee was also deducted from his account. He made a complaint to the opposite party but the amount was not paid to him thereafter he approach the banking ombudsman. There also his grievance was not redressed and hence he has filed his complaint for realizing an amount of Rs.36,248/- along with interest and for realizing Rs.25,000/- as compensation. The power of attorney holder of the complainant who is none other than his father got examined as PW1 and marked as Ext.A1 to A7. The statement of account of the opposite party bank was marked as Ext.A8 by consent. Ext.A5 is a copy of passport which will show that complainant had gone abroad and during the relevant period he was abroad. Ext.A3 is the letter of banking ombudsman dated 20.03.2017 by which he was requested to approach any other Forum to redress his grievances. The fact that Rs.36,248.26/- was withdrawn from the account of complainant through ATM on 16.12.16 and 17.12.16 is proved by Ext.A8 account statement. On all four occasions Rs.100/-each was debited as International ATM fee. So it is also admitted that amount was withdrawn from abroad. According to the complainant during the relevant period he was in Ukraine and now he is in Canada doing his higher studies. Complainant got information from the bank that all the four transactions are from Philippines. The contention taken by the opposite party in the version is that withdrawal cannot be made without ATM card. A password is given or generated for each ATM and without use of ATM card and password amount cannot be withdrawn. However there is evidence to show that complainant was in Ukraine during the relevant period. The bank itself stated that the withdrawals are from Philippines. So it is pellucid that withdrawals are not made using ATM card or with the knowledge of the complainant. Though in the version bank had taken a contention that withdrawals cannot be made without ATM card no evidence was adduced to prove their case on oath. It is true that it is for them to decide whether to give evidence or not. But if definite contentions are taken in the version it is their duty to prove their case on oath by mounting the witness box. As held by the Hon’ble Supreme Court in AIR 1999 Supreme Court 1441, (Vidhyadhar Vs. Mankikrao) a presumption under Sec.114 of Evidence Act can be drawn if the party is not entering the witness box to prove their case on oath.
Ext.A4 is a circular issued by Reserve Bank of India dated 12.08.16. By Ext.A4 circular RBI has introduced a policy of ‘zero liability’ for customers in third party fraud if they are reported within three days. This means banks will have to make good the losses suffered by customers. Here in this case complainant came to know about the fraud on 23.12.16 when he tried to withdraw amount from the ATM at Ukraine. On that day it was noticed that he was only having a balance of Rs.439/-. On the next working day ie, on 26-12-16 he informed the matter over phone to the opposite party bank. In such circumstances complainant is entitled for the benefit of Ext.A4 circular. It was argued by the learned counsel appearing for the opposite party bank that the complainant was not examined in court and instead of that power of attorney holder was examined as PW1. Hence according to the learned counsel PW1 who was examined before court has no direct knowledge regarding the incident. On going through the records it is seen that on 28-07-18 complainant appeared before the court and filed chief affidavit. However he was not cross examined on that day since there was no representation for the opposite party. Admittedly complainant was a student of Ukraine and now he is studying in Canada. Since he wants to leave India he entrusted the matter to his father and left India. So the non examination of the complainant was due to the fault of the opposite party and so now they cannot take a contention that complainant was not examined as a witness before this Commission. More over it can be seen that the dispute in this case can be resolved through documents and there is not much scope for oral evidence.
To sum up withdrawal of two amounts on 16-12-16 and two amounts on 17-12-16 (total Rs.36,248.26/-) is proved by statement of account. Since Rs.100/- each on each occasion was withdrawn as International ATM fee it can be seen that all the four withdrawals were made from outside India. Ext.A5 copy of passport shows that during the relevant period complainant was in Ukraine. Though opposite party had taken a contention in the version that withdrawals cannot be made without ATM card and without using the secret PIN no evidence was let in to prove such a contention. So the available evidence shows that Rs.36,248.26/- was withdrawn from the account of the complainant without his knowledge. It was the duty of the bank to prevent such theft which is not seen done. So there is deficiency of service from the part of the opposite party bank. Since information was given to the opposite party bank within a short time from the date of knowledge complainant is entitled for the benefit of Ext.A4 circular of Reserve Bank of India. The learned counsel appearing for the complainant relied upon a ruling of the Hon’ble High Court reported in 2019 (1) KLT 505 (State Bank of India Vs. P.V. George).
On a perusal of ruling of the Hon’ble High Court it is seen that it is squarely applicable to this case. It was held If a customer suffers loss in connection with transactions made without his junction by fraudsters, it has to be presumed that it is on account of the failure on the part of the Bank to put in place a system which prevents such withdrawals, and the Banks are, therefore, liable for the loss caused to their customers.
Bank owes a duty to its customers to take necessary steps to prevent unauthorized withdrawals from their account. If a customer suffers loss on account of the transactions not authorized by him, Bank is liable to the customer for the said loss.
Here in this case it is seen that the complainant was running from pillar to post to redress his grievances. First he directly approached the bank but there was no proper response. Thereafter he filed Ext.A2 complaint before the banking ombudsman. By Ext.A3 letter dated 20-03-2017 they informed their inability to solve the dispute since the amounts were withdrawn from outside India. However he was given liberty to approach any other Forum in accordance with law for the redressal of grievance. So it is seen that from 2016 December onwards complainant is running from pillar to post. In such circumstances he is entitled for compensation. These points are found in favour of the complainant.
Point No.4
In the result complaint is allowed.
- Complainant is allowed to realize an amount of Rs.36,248/- along with interest @ 9% per annum from 17-12-2016 (date of loss) till realization from the opposite party.
- Complainant is allowed to realize an amount of Rs.25,000/- as compensation for the mental agony.
- Complainant is allowed to realize an amount of Rs.4,000/- as cost.
The said order shall be complied within one month from the date of the receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 25th day of August, 2020.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt.Sholy P.R (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Abdul Basheer P.A (Witness)
Ext.A1 - Copy of E-mail sent to opposite party bank
Ext.A2 - Complaint filed before the banking ombudsman
Ext.A3 - Letter dated 20.03.2017
Ext.A4 - Guidance of Reserve Bank of India
Ext.A5 - Attested copy of passport
Ext.A6 - Copy of residence permit
Ext.A7 - Power of attorney
Ext.A8 - Account statement
Evidence of the opposite parties:- NIL
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
