DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 31st day of July, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 12/09/2023
CC/229/2023
Dr. Lakshmi Priya N.,
Athurashram Ladies’ Hostel,
Opp. Pudussery Grama Panchayath,
Kanjikkode, Palakkad – 678 621. - Complainant
(Party in Person)
Vs
- State Bank of India,
Kanjikkode, Palakkad – 678 623
Rep. by its Manager.
- Banking Ombudsman,
RBI Mandir, 1st Floor,
Bakery Junction, Trivandrum. - Opposite parties
(OP1 by Adv. P.V. Beena
OP 2 removed from party array)
O R D E R
By Sri. Vinay Menon V., President
- Verbose pleadings scattered over 13 pages is with regard to the alleged deficiency in service on the part of OP bank which, according to the complainant, failed to prevent fraud by third parties to whom she herself had handed over pass-codes.
Complainant had booked for a trolley bag from some E-commerce platform for Rs.429/-. Even after a long period, the same was not received. Therefore, she contacted the sellers who directed her to deposit Rs.3/-. Thereafter she shared her OTP with the sellers who defrauded Rs.5,000/- from her. Even though the complainant had directed the OP bank about her suspicions, the OP bank failed to take any step, thereby facilitating the fraud. Complaints filed by the complainant before the bank authorities were not considered.
Aggrieved thereby she filed a complaint before the Banking Ombudsman, who, without hearing her or considering any of the evidence in its proper perspective, disposed off her complaint holding the conduct of the bank to be appropriate.
It is aggrieved by the actions of the bank and the Banking Ombudsman that this
complaint was filed. Since Banking Ombudsman is a statutory authority, they were removed from the party array.
- OP bank filed version refuting complaint pleadings. They submitted that even though the OP was in receipt of a complaint, they could not take any appropriate steps in view of the fact that the passwords were handed over to the perpetrators of the fraud by the complainant herself. Further fraud was carried out from different accounts. There was no way that the OP can be held liable and responsible. The internal compliance mechanism of the OP had already considered the matter and disposed off the complainant’s claim. The Banking Ombudsman had also, after consideration of facts and circumstances involved, dismissed the complaint. They sought for dismissal of this complaint.
- The following issues were framed for consideration:
- Whether the fraudulent transaction occurred due to the negligence (sharing of payment credentials) of the complainant as claimed by OP?
- Whether there is any deficiency in service on the part of OP?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
4. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits A1 to A5.
Marking of Ext.A1 is objected as it is a photocopy. Since OP has no case that this is a forged document and since this Commission is not bound by the tenets of Indian Evidence Act or BSA, this objection is overruled.
Since Ext.A4 is indecipherable, this document is rejected.
(ii) Even though permission was granted to cross examine the complainant, the complainant resorted to an aggressive and vicious attitude towards the counsel appearing for the OP. Complainant had to be restrained continuously and warned but no avail. Complainant demanded that the counsel for OP question the complainant in ways and manners as suggested by the complainant and refused to answer the question put by the counsel for O.P. Therefore, her cross examination was cancelled. Any adverse inference can be resorted to, if the need arises.
(iii) O.P. filed proof affidavit. There were no documents to be marked.
(iv) Deponent in proof affidavit of OP was examined as DW1.
Question of Res judicata
5. Even though the question of bar of this complaint on the ground of Res Judicata, in view of adjudication of the dispute by the Banking Ombudsman was not taken up as an issue, it would not be in the interest of justice to leave this question of law unanswered.
6. After being defrauded, the complainant filed a complaint as CMS 3291/2023-24 before the Banking Ombudsman for Kerala at Trivandrum. The said authority had, after consideration of the facts and circumstances on merits, found that the conduct of the opposite party was in accordance with law and upheld the same.
7. When a statutory authority, authorized, empowered and competent to look into a dispute which is the subject matter of the complaint herein has appreciated the facts on merits and has passed an order holding the conduct of the OP to be proper and legal, it would not be in the best interests of judicial comity to reappreciate the evidence and arrive at a finding de-novo. Such a conduct would tantamount, in essence, to sitting in appeal over the finding of the Banking Ombudsman. Had the complainant any dispute with regard to the findings of the Banking Ombudsman, remedy available to the complainant was to file an Original Petition (Civil) before the Hon’ble High Court of Kerala, under Article 227 of the Constitution of India.
8. Any foray by this Commission into a dispute already adjudicated on merits by the Banking Ombudsman would be judicial impropriety and any finding not in tune with the finding of the Ombudsman would be an absurdity.
9. Therefore, we hold that this complaint is barred by Res Judicata.
Issue No.1
10. Be that as it may, we are also looking to see if there are any attenuating circumstances that would come within the ambit of authority of this Commission. Documentary evidence adduced by the complainant were marked as Exts. A1 to A5. Witness for opposite party was examined as DW1. Even though we had reminded the complainant to stick to areas that were out of the borders of matters which were considered by the Banking Ombudsman, the complainant failed to do so. The entire cross examination of the complainant dealt with matters which were the subject matter of the complaint before the Ombudsman i.e. the debits of Rs. 479/-, Rs.3/-, and Rs.5,000/-. Nothing could be brought out by the complainant to prove that there was any illegality other than what was already considered by the Banking Ombudsman.
11. Considering admissions in the pleadings in the memorandum of complaint that the complainant herself had provided the passwords to strangers, we are left with no alternate but to hold that the complainant has no one else to blame but herself.
Issue Nos. 2,3 & 4
12. Apropos the discussion and findings above, we hold that there is no deficiency in service on the part of OP.
13. The complainant is not entitled to any of the reliefs sought for.
14. In the facts and circumstances of the case parties are directed to bear their respective costs.
15. With the above findings, this complaint stands dismissed.
Pronounced in open court on this the 31st day of July, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of reply dated 26/5/2023 in complaint No.CMS3291/2023-24 on the file of the
Banking Ombudsman, Kerala
Ext.A2 – Copy of communication dated Nil issued by OP to complainant
Ext.A3 - Copy of communication dated 23/1/2023.
Ext.A4 - Copy of indecipherable communication alongwith Ext.A1.
Ext.A5 – Print out of account statement of complainant’s account.
Exhibits marked on the side of the opposite party: Nil.
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Dr. Lakshmipriya (let off)
Witness examined on the side of the opposite party:
DW1 – Saju Subramanian (Manager, SBI)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
