MRS. M. SHREESHA, MEMBER

          Aggrieved by the order in CC No. 21/2013 dated 28.09.2015 passed by Kerala State Consumer Disputes Redressal Commission (for short “the State Commission”) M/s Canara Bank and Others (hereinafter referred to as “the Bank”) has preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”).  By the impugned order, the State Commission has allowed the Complaint with the following directions:-

“17. The claim of the complainant that he lost US$ 86,500 equivalent to Rs.48,25,671/- is not in dispute for in the FIR itself, it is mentioned that the complainant and lost US$86,500 equivalent to Rs.48,26,671/- Indian rupees.  Apart from the said amount the complainant has sought Rs. 1,00,000/- towards the expenses for three travels, he had to undertake from Doha to Thiruvananthapuram in connection with the fraudulent transfers.  Further Rs. 1,00,000/- is claimed as compensation for the mental agony and hardships suffered by the complainant.  Having regard to the circumstances available the claims appear to be reasonable and the complainant is entitled to reliefs accordingly.

          In the result the complaint is allowed as follows.

          The opposite parties are directed to pay to the complainant Rs.48,27,670/- along with Rs. 2147/- levied as service charges with interest at the rate of 9.25% per annum from the dates of illegal transfer of money till the date of payment.  The opposite parties are also directed to pay   Rs.  1,00,000/-   towards   travel   expenses   and

Rs. 1,00,000/- towards mental agony and hardships suffered by the complainant.  They shall also pay Rs. 10,000/- towards cost of the proceedings. The order shall be complied with within one month from the date of receipt of copy of the order.” 

2.       Briefly stated the facts of the case are that the Complainant is an expatriate businessman settled at Doha, Qatar.  He was customer of the Bank at its Third Opposite Party Branch by having three NRE Accounts with NRE Fixed Deposits.  He was keeping substantially large sum in his accounts.  He used to do his  correspondence  with the Bank through his e-mail id necovijay@yahoo.com.  On 26.04.2012, he learnt that his said e-mail id was hacked by some unknown fraudsters and on 27.04.2012 itself he intimated about the same to the Bank through his another e-mail id i.e. vijayakaladas2003@yahoo.com and directed them not to entertain any e-mail correspondence from e-mail id necovijay@yahoo.com.  The said message was received by the Third Opposite Party and was duly acknowledged by them.  After the receipt of the said communication the Third Opposite Party was legally and morally bound to stop all money transfers of the Complainant under e-mail instructions.

3.       Subsequently, at the request of the Complainant through e-mail copy of statement of accounts maintained in the Third Opposite Party Branch was served on him.  On verification of the said statement of accounts the Complainant found some discrepancy in the account balance.  He was shocked to find that US$86,500 was debited by way of closing the NRE fixed deposit.  The said fixed deposited was closed and the amount was transferred through the NRE account to some other banks abroad and all were made without any prior information or instruction of the Complainant.  He found that US$9,000 was withdrawn on 16.08.2012, US$27,000  on 04.09.2012, US$ 30,000 on 05.09.2012 and US$20,500 on 12.09.2012 and were transferred to some bank abroad.  Thus a total amount of US$86,500 was fraudulently withdrawn from his account amounting to Rs.48,25,671/-. Complainant through his e-mail requested the Third Opposite Party Branch to explain the discrepancy in the transactions from 16.08.2012 to 12.09.2012.  In response to the same the Bank responded that the amounts were transferred as per instructions received from his through e-mail.  Bank transferred the said amounts on the instructions received from his hacked account which was clear negligence on the part of the Bank.  On 27.09.2012 the said fraudulent transfers/transactions were brought to the knowledge of the Chief Manager of Third Opposite Party Branch, Customer Service Manager of the First Opposite Party and Circle Office, Thiruvananthapuram but no serious action was taken.  On 05.12.2012 he issued notice to Third Opposite Party Branch to rectify the mistakes and credit the amounts transferred from the account of the Complainant back to his account.  In response thereto the Third Opposite Party Branch acknowledged the intimation regarding hacking of e-mail id and the direction to stop money transactions based on the said registered e-mail id but maintained that even after receipt of the said intimation the existing e-mail id continued to be the registered e-mail id in the bank records for the reason that alternative e-mail id was not registered.  Complainant then issued letter dated 04.01.2013 asking the Bank to credit the amount fraudulently transferred but Bank did not do so. Aggrieved the Complainant filed the Complaint seeking the following reliefs:-

“1. A direction to the opposite parties to pay Rs. 48,25,671/- lost by him due to the deficiency in service along with

Rs. 2147/- debited against service charges together with the admitted interest at the rate of 9.25% per annum for the fixed deposits.

2.  To direct the opposite parties to pay Rs. 1,00,000/- towards the expenses for three travels the complainant had to undertake to Thiruvananthapuram from Dohai and the personal expenses incurred in connection with the fraudulent transfer.

3.       A direction to pay Rs.1,00,000/- to the complainant as compensation for mental agony, pain, hardships and sufferings and for dragging the complainant to unnecessary litigation and

4.       To direct the opposite parties to pay Rs. 50,000/- towards the cost of the proceedings.”

4.       Bank filed their Written Version stating therein that at the time of opening his account Complainant had submitted his e-mail id as necojiay@yahoo.com and in the course of operation of his accounts had been issuing directions through his e-mail id.  The Bank was totally unaware about the hacking of his e-mail id by unknown fraudster.  On 27.04.2012 the Bank received an e-mail from e-mail id vijayakaladas2003@yahoo.com informing them that someone had hacked his e-mail id necovijay@yahoo.com and requested them not to entertain any request from the said e-mail.  On receipt of the said e-mail the Bank had telephonically contacted the Complainant and requested him to send a written confirmation.  However, such written confirmation was not received by the Bank. Complainant did not register any alternative e-mail id with the Bank and thus the Bank was well within its right to act upon the communication received from registered e-mail id and Bank acted upon the instructions received from the said registered e-mail id in the normal course of prudent banking transactions.  The Bank on being informed by the Complainant  that the disputed transactions were not directed by him reported the matter to Sub Inspector of Police, Medical College, Police Station, Thiruvananthapuram and the matter is under investigation by the police authorities.

5.       We have heard the Learned Counsel for the parties and perused the record.

6.       Learned  Counsel appearing for the Bank submitted that the Complainant was aware of the fact that his e-mail was hacked by someone on 26.04.2012 but he did not choose to file any Criminal Complaint before the  concerned police officials and if had the Complainant taken reasonable  care and caution and registered a Complaint with the Police, it would have mitigated the illegal transfer of money to a larger extent.  He further argued that the transfer of funds took place on three occasions i.e. on 04.09.2012, 05.09.2012 and 12.09.2012 and all accompanied scanned signed requests of the Complainant tallied with his specimen signatures and, therefore, there cannot be any deficiency of service on the part of the Bank.  At the time of opening the account the Complainant had registered his e-mail as necovijay@yahoo.com.  On 27.04.2012, he had intimated the bank officials  through e-mail id vijayajakadas2003@yahoo.com that his e-mail has been hacked.  As per the policy the bank officials did not entertain any e-mail instructions from e-mail ids other than those registered with the Bank and, therefore, they did not act upon the instructions given through a different e-mail id.  He submitted that the Bank filed a police complaint vide FIR No. 1447 of 2012 which is still pending and, therefore, this Commission cannot now adjudicate on this matter till the Police Complaint reaches its logical conclusion. 

7.       Learned Counsel appearing for the Complainant submitted that despite informing the Bank that his e-mail was hacked, still the Bank did not take any steps to de-activate the hacked registered e-mail despite receiving intimation on 27.04.2008. 

8.       The evidence on record shows that  necovijay@yahoo.com is shown as the e-mail ID of the Complainant and apart from that no other e-mail ID has been registered in the name of the Complainant and hence we are of the view that the Complainant has shown his bona fide by registering a Complaint from that e-mail id.  It is pertinent to mention that the Senior Manager of the 3^rd Opposite Party Branch of the Bank was examined before the State Commission who answered that at first, the e-mail was verified and thereafter subsequently no e-mail id was verified, the reason being that in the message only the name of the customer would be displayed and the e-mail id would not be displayed.  He admitted that the confirmation of every transaction would have to be obtained and that reply to the e-mail would be sent to the e-mail id from which the message was received; that the material on record evidences that  the replies were sent to the e-mail id which was fake one, when the Complainant specifically warned that no transaction should be entertained based on any request made from a fake e-mail id.  The contention of the Bank that the Complainant wanted to be enriched fraudulently is not substantiated by any documentary evidence and in fact the FIR registered by the Police shows the non-involvement of the Complainant in the said transfers. Further a perusal of the interim report given by the Cyber Police clearly evidences that there was no fraudulent role played by the Complainant herein for any undue enrichment. Having obtained the request from the Complainant who is an NRI and whose transactions are done normally with instructions from an e-mail and the Complainant had specifically instructed on 27.04.2012, the Bank ought to have communicated to the Complainant and take steps and exhibited due care and caution in adhering to the instructions given by the Complainant, when there is an admission that the e-mail has been received by the Bank.  It is pertinent to mention that all the three transactions wherein the money was withdrawn fraudulently are subsequent to the e-mail that was sent by the Complainant.

9.       It is not in dispute that the Complainant lost $86,500/- which at the time of disposal of the Complaint was Rs.48,25,671/-.  The State Commission appreciated the evidence on record including the deposition of the manager of the third Opposite Party Bank together with the Bank statements, e-mails and the averments made in the reply of the notice and has rightly directed the Opposite Parties to pay to the Complainant an amount of Rs. 48,25,670/- together with the services charges of Rs.2147/- levied, with simple interest @ 9.25% keeping in view the interest rates at that point of time.  An amount of Rs. 1,00,000/- was awarded towards travel expenses and Rs. 1,00,000/- towards mental agony.  Keeping in view that the Complainant is an NRI and had to travel to India during the period of cause of action,  we find it a fit case to retain the travel expenses of Rs. 1,00,000/- but we set aside the compensation of Rs. 1,00,000/-  as interest has already been awarded by way of damages.  This Appeal is allowed in part modifying the order of the State Commission only to the extent of setting aside the compensation of Rs. 1,00,000/- while confirming the rest of the order of the State Commission.  It was submitted that the entire amount was already released to the Complainant on bank guarantee.  It is directed that the bank guarantee be released to the Complainant within four weeks from the date of receipt of a copy of this Order.