Date of filing:  03.08.2022                                                         Date of Disposal: 27.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 27^th DAY OF APRIL, 2023

CONSUMER COMPLAINT NO.155/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Sri. Subray N Shanbhag,

S/o. Late Sri Narayan,

Shanbhag, Aged About 85 Years,

R/at: No.1/9, 3^rd Cross,

Maramma Temple Street,

Kempegowda Nagar,

Gavipuram Extension,

(Rep by Sri. P.R.Muralidhar, Advocate)

- V/s -

1) The INDUSIND Bank Limited,

Basavanagudi Branch,

Bull Temple Road,

Rep. by its Branch Manager.

2) The INDUSI ND Bank Limited,

Registered Office: # 2401,

Gen. Thimmayya Road,

Pune-411 001.

Maharastra State,

Rep. by its Authorized Signatory.

(OP No.1 & 2 are rep. by Sri. S.M.Anees

Ahamed, Advocate)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint Under Section 34 & 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to refund the amount of Rs.22,41,000/- and such other reliefs as this Commission deems fit in the circumstances of the case.

02.    It is not in dispute that, one Nagendra Shastry was assigned as a Relationship Manager of opposite party No.1 -Bank and his responsibility was to build up good rapport with the customers assigned to him by the opposite party-Bank and to promote and convince the customer to avail various financial services offered by the Bank.  Further it is not in dispute that, the complainant has lodged a complaint with the Commissioner of Police on 19.02.2022 and had sent another letter to Inspector of Police, Hanumantha Nagar, Bangalore, on 19.02.2022. 

03.    Further it is not in dispute that, subsequently Nagendra Shastry upon various other complaints, opposite party-Bank had kept him under suspension pending enquiry and during the said period he has committed suicide on 01.08.2021.  Opposite party-Bank has also filed a complaint before Hanumantha Nagara police station and the police authorities have filed an FIR against Nagendra Shastry and his other associates and opposite party – Bank had advised the complainant to approach police authorities in respect of his grievance against Late Nagendra Shastry. 

04.    It is the further case of the complainant that, complainant being a senior citizen aged about 85 years and as part of life-time savings and purely depending on interest accrued thereon intended to deposit the amount in the form of FDs.  This being the fact during the year 2020-2021 when the entire country was suffering from COVID-19 pandemic the government had issued complete lockdown.  Taking advantage of this the said Nagendra Shastry being the Relationship Manager visited the residence of the complainant to do door step service.  The complainant wanted to keep the above amount in the form of FD.  Accordingly the said Nagendra Shastry took the mobile phone of the complainant and downloaded the said App and set-right the mobile phone with his own Pin number and got transferred the amount to his own and informed the complainant that, the amount has been transferred to FD account digitally and the complainant would get FD certificate shortly.  Further since COVID-19 restrictions were there, the complainant was not able to visit the Bank and the phone call to the said Nagendar Shastry was switched-off and on 06.08.2021 complainant had written a letter to opposite party complaining of non-receipt of FD certificate for the amount of Rs.22,41,000.

05.    Further since there was no response and all the efforts of the complainant came in vain, the complainant discovered the fraud and misappropriation of funds done by opposite party Bank, the complainant has lodged a complaint with the Commissioner of police on 19.02.2022 and it was intimated by the police to the complainant that, the case has been registered by Hanumantha Nagara police against Nagendra Shastry and others.  Thereby the complaint lodged by the complainant came to be dropped. 

06.    Since the employee of the opposite party-Bank has committed fraud and deceived the complainant and in-spite of request and letter been addressed, the opposite party-Bank did not refund the said amount.  Hence, the present complaint came to be filed.

07.    It is the further case of the opposite party that, during discussion with the complainant it was learnt that, Late Nagendra Shastry in his personal capacity has lured the complainant to invest in third party financial produces and the same was not related to opposite party Bank, offering greater return than what was offered by opposite party bank.  Further the complainant through mobile banking application has transaction funds to the tune of Rs.22,41,000/-.  Hence the complainant is fully responsible in respect of these transactions.  Further the complaint filed before this Commission by the complainant does not fall within the definition of Consumer Dispute as there is neither any unfair trade practice committed by the opposite party-Bank nor any deficiency of service.  Hence, sought for dismissal of the complaint.

08.    To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P.1 to EX.P.12 documents.  The Branch Manager of opposite party No.1 - Bank (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 to EX.R.3 documents.

09.    Counsels for both the parties have filed their respective written arguments and counsel for complainant has filed a citation with memo.

10.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite parties?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

11.    Our findings on the aforesaid points are as follows:-

POINT NO.1 :  In affirmative

POINT NO.2 :  Partly in affirmative

POINT NO.3 :  As per the final order for the following;

REASONS

12.    POINT NO.1:-  The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

13.    It is not in dispute that, Nagendra Shastry was an employee at OP No.1 – Bank and after the fraud said to have been committed came to the notice of the Bank, the Bank has suspended him and during enquiry he committed suicide.  The complainant has produced Xerox copy of statement of account vide EX.P.2, Xerox copy of three letters vide EX.P.3, Xerox copy of letter dated: 25.09.2021 addressed to Hanumantha Nagara P.S. vide EX.P.5, Xerox copy of the letter dated: 19.02.2022 addressed to opposite party vide EX.P.6, Xerox copy of the FIR in Crime No.159/2021 vide EX.P.9.  The opposite party No.1 has produced Bank statement vide EX.R.2. EX.P.2 and EX.R.2 indicates the withdrawal of the amount of Rs.22,41,000/- from the account of the complainant maintained at opposite party No.1 – Bank.

14.    It is the contention of the learned counsel for opposite party – Bank that, Nagendra Shastry has cheated more than 20 people in the name of the COVID-19 and the official allegedly duped the complainant on the pretext of providing the home service and the transaction made was purely a personal one and none of the amounts have been invested at opposite party – Bank.  Hence, since the complainant himself has violated the law, he is not entitled for any relief.

15.    It is also contended that, the dispute under the complaint is not a Consumer dispute.  We feel the complainant had an account with the opposite party-Bank.  Further the said Nagendra Shastry was a Relationship Manager of opposite party-Bank.  Further during the year 2019 to 2021 there was COVID-19 restriction.  Since the complainant has opened a bank account with the opposite party, the Bank will be the Guardian for the said account and more responsibility is casted on the Bank.  Admittedly on enquiry it was found that, Nagendra Shastry had committed fraud and he was kept under suspension by the Bank.  Therefore any act committed by an employee of the opposite party during the discharge of his duty, the Bank is liable to answer.  The Bank is a service provider as contemplated under section 2(42) of the Consumer Protection Act, 2019.  Further the complainant has availed the service from the Bank thereby the complainant is a consumer as contemplated under section 2(7) of the Consumer Protection Act, 2019.  Therefore the dispute in between the complainant and the Bank with regard to refund of the said amount amounts to a Consumer Dispute within the meaning of section 2(8) of the Consumer Protection Act, 2019.  Hence there is no merit in the contention of the learned counsel for the opposite party – Bank.

16.    It is the further contention of the learned counsel for the complainant that, on 06.08.2021 the complainant had written letter to the opposite party – Bank alleging non-receipt of fixed deposit receipts vide EX.P.3.   We feel since the opposite party – Bank is responsible for the act of its employee, opposite party – Bank is liable to return the amount deceived by Nagendra Shastry while discharging official duties of the opposite party No.1 - Bank.  Hence non-refund of the same amounts to deficiency of service.

17.    In support of the contention counsel for the complainant relies the judgment rendered by Hon’ble Apex Court in Civil Appeal No.8775-8776 OF 2016, in between Pradeep Kumar & Another Vs. Post Master General & Others.  We have considered the principles laid down in the said case.  Accordingly we answer this point in affirmative.

18.    POINT NO.2:-     The complainant claimed to refund an amount of Rs.22,41,000/-.  Since FD has not been issued by opposite party, the complainant is entitle for the said amount as per law.

19.    The complainant further sought a direction to the opposite party – Bank to pay an interest at the rate of 7% per annum on the amount of Rs.22,41,000/- for a sum of Rs.3,13,740/- and further interest at the rate of 7% per annum till realization.  We feel the complainant is entitle for interest on the amount of Rs.22,41,000/- from the date of the debit of the said amount to the account of the complainant till the complaint been filed at the rate of 7% per annum to the tune of Rs.3,13,740/- and interest at the rate of 9% per annum on the above said amount of Rs.22,41,000/- from the date of complaint till realization.

20.    Further the complainant claimed a sum of Rs.6,00,000/- towards compensation.  We feel because of the act of the employee of opposite party – Bank the complainant had suffered much and it appears that, complainant is a senior citizen aged about 85 years.  Hence the complainant is entitle for a sum of Rs.50,000/- towards compensation.

21.    Further the complainant claimed a sum of Rs.50,000/- towards litigation cost.  The act of employee of the opposite party – Bank made the complainant to approach this Commission for the relief in question.  Hence the complainant is entitle for litigation cost of Rs.10,000/-.  Accordingly, we answer this Point partly in affirmative.

22.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.22,41,000/- along with interest at the rate of 7% per annum on the amount of Rs.22,41,000/- from the date of debit of the amount from the account of the complainant to the tune of Rs.3,13,740/- and interest at the rate of 9% per annum from the date of complaint till realization on the amount of Rs.22,41,000/- and a sum of Rs.50,000/- towards compensation and a sum of Rs.10,000/- towards litigation cost.

The opposite parties shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.60,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 27^th Day of April, 2023)       

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri.Subray N Shanbhag, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents marked for the complainant side:

1. Copy of Aadhar Card – EX.P.1.
2. Copy of statement of account  – EX.P.2
3. Copy of three letters dt.06.08.2021, 09.08.2021 & 15.08.2021 with RPAD receipt – Ex.P.3
4. Copy of letter addressed to head customer care – EX.P.4.
5. Copy of letter dt.25.09.2021 addressed to Hanumanth Nagar police Station – EX.P.5.
6. Copy of letter dt.19.02.2022 addressed to OP with three RPAD receipts – EX.P.6.
7. Copy of the endorsement dt.13.04.2022 given by Hanumanth Nagar Police – Ex.P.7.
8. Copy of complaint dt.11.08.2021 addressed to Hanumanth Nagar Police – Ex.P.8.
9. Copy of FIR in crime No.159/2021 of Hanumanth Nagar police station – EX.P.9.
10. Copy of the letter dt.18.11.2021 issued by OP – Ex.P.10.
11. Copy of intimation issued by RBI – Ex.P.11.
12. Certificate U/s 65(B) of Indian Evidence Act – EX.P.12.

Witness examined for the opposite parties side:        

Sri. Aslam Pasha, Deputy Branch Manager of opposite party No.1 – Bank (RW-1) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Parties side:

1. Copy of authorization letter dt.02.02.2023 – EX.R.1.

2. Copy of Bank statement – EX.R.2.

3. Copy of notice dt.18.11.2021 with postal acknowledgment – Ex.R.3.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•