State Consumer Disputes Redressal Commission
Vijayakumaran Raghavan vs Chairman And Md,Canara Bank on 28 September, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM CC.NO.21/13 JUDGMENT DATED : 28.09.2015 PRESENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SMT.A.RADHA : MEMBER SMT.SANTHAMMA THOMAS : MEMBER COMPLAINANT Shri.Vijayakumaran Raghavan, S/o.Raghavan, Residing at C/o. National Engineering and Construction Company W.L.L, P.B.NO.17211, Doha - Qatar Permanantly residing at Kulangarethu House, Chittar.P.O Ranni Taluk, Pathanamthitta District (By Adv.Sri.G.Jayakumar) Vs OPPOSITE PARTIES 1.M/s.Canara Bank Rep.by its Chairman & Managing Director, Canara Bank Head Office, 112-JC Road, Bangalore - 560002 2.The General Manager, M/s.Canara Bank Circle Office, M.G.Road, Thiruvananthapuram 3. The Chief Manager, M/s.Canara Bank, Cosmopolitan Hospital Branch, Pazhaya Road, Medical College Post, Thiruvananthapuram (By Adv.Sri.G.S.Kalkura & Adv.Sri.R.Jagdish kumar) JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIALMEMBER This is a complaint filed under section 17 of the Consumer Protection Act. The complainant is an expatriate business man settled at Doha, Quatar for the last 15 years and was a customer of third opposite party , a branch of the first opposite party, a nationalized bank. It is alleged in the complaint that the complainant was holding three NRE Accounts with the third opposite party with NRE fixed deposits. He was keeping substantially large sum in his accounts. He used to make correspondence with the third opposite party through his e-mail id [email protected] followed by telephone calls to ratify the e-mail correspondences. On 26.04.2012, the complainant learnt that the e-mail id of the complainant [email protected] was hacked by some unknown fraudsters and on 27.04.2012 itself the matter was intimated to the third opposite party bank as well as other bankers of the complainant through another e-mail id of the complainant [email protected] and directed them not to entertain any e-mail correspondence from the e-mail id [email protected]. 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 transfer of the complainant under e-mail instructions.
2. Subsequently at the request of the complainant through e-mail copy of statement of accounts maintained in the third opposite party bank was served on the complainant verification of which revealed discrepancy in the account balance. The complainant was shocked to see that US $ 86,500 was debited closing the NRE fixed deposit and through the NRE account number 24991030091911 of the complainant. The fixed deposit 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 from the side of the complainant. It was seen that on 16.08.2012 US $ 9,000 on 04.09.2012 US $ 27,000 0n 05.09.2012 US $ 30,000 and on 12.09.2012 US $ 20,500 were withdrawn from the NRE account of the complainant and transferred to some banks abroad. The total amount thus withdrawn and transferred abroad was US $ 86,500 equivalent to Rs.48,25,671/-.
3. Finding the discrepancy in the statement of accounts furnished by the bank, the complainant through e-mail requested the third opposite party to explain the discrepancy in the transactions from 16.08.2012 to 12.09.2012. In response the third opposite party replied that the amounts were transferred as per e-mail correspondence from the complainant. As the complainant, did not make any such correspondence request was made to furnish the details and the third opposite party gave reply on perusal of which the complainant happened to see the e-mail correspondence relied on by the third opposite party. E-mail id [email protected] which is not the e-mail id owned or operated by the complainant was used. The said e-mail id does not fully correspond with the e-mail id of the complainant [email protected] which was hacked on 26.04.2012. The third opposite party transferred the amount relying on the fake e-mail id [email protected] which was clear negligence irresponsibility and deficiency in service from the side of the third opposite party bank. The third opposite party has not verified the e-mail id before transferring the amount from the account maintained by the complainant .Thus, the NRE fixed account of the complainant was closed without any instruction from the complainant and the said amount was transferred to the NRE account of the complainant and subsequently the amount was transferred to various banks in China on instruction received through an unregistered e-mail id [email protected] which was fraudulently created by unknown persons. On 27.09.2012 the fraudulent transfers, the wrongful involvement of the bank in making the transfers and their deficiency in service were brought to the notice of the chief Manager of the third opposite party bank. Customer service Manager of the first opposite party and the circle office, Thiruvananthapuram. But no serious action followed. On 05.12.2012 the complainant issued notice to third opposite party to rectify the mistakes and credit the amounts transferred from the account of the complainant back to his account. In reply the third opposite party acknowledged the intimation regarding hacking of e-mail id and the direction to stop money transactions based on the 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. The complainant issued letter dated 04.01.2013 questioning the reasons alleged and demanding the bank to credit the amount fraudulently transferred. From the documents available it is evident that all details regarding the account balance fixed deposits etc kept by the complainant in the third opposite party bank were passed over to the fraudsters by the third opposite party enabling the fraudsters to succeed in their act. The fraudulent withdrawals were carried out within one month and the third opposite party was obliged to cross check the e-mail instructions especially when they were intimated about the hacking of the registered e-mail id. The belief of the complainant that the money deposited by him in the third opposite party bank will be secure and safe was shattered by the negligent and irresponsible act of the third opposite party and as a result the complainant has lost almost all his hard earned money in his life time. The mode in which money was transferred by the third opposite party was in clear violation of RBI guidelines. The complainant has sought the following reliefs.
1. A direction to the opposite parties to pay Rs.48,25,671/- lost to 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 to 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. Opposite parties 1 to 3 filed joint version. Their contentions are that the beneficiaries of the transfer of funds are necessary parties. Further complex questions arise for decision and voluminous evidence has to be recorded for adjudicating the complaint. Hence summary adjudication by this commission is not feasible. The dispute is under investigation by the cyber crime cell of the Kerala police. The complainant had opened an NRE account with the third opposite party branch of the bank on 17.08.2010. and on being satisfied with the service rendered by the third opposite party in respect of his NRE account requested them to permit him to open a savings bank ( NRO - non resident ordinary) account. Accordingly, he opened a NRO account. At the time of opening account the complainant had submitted his e-mail id as [email protected], The complainant was operating both the accounts at regular intervals and the opposite parties had been complying with the directions of the complainant bonafide and in good faith. The complainant was not holding three NRE accounts as alleged in the complaint. There are only two savings bank accounts namely NRO & NRE accounts. In addition he had maintained a NRE fixed deposit account as well. The complainant had issued direction through his e-mail to transfer Rupees.fifty lakhs from his NRE account as fixed deposit for a period of two years which was complied with and fixed deposit receipt was issued.
5. The complainant in the course of operation of the accounts had been issuing directions through his various e-mail ids and was seeking transfer of amounts from his NRE account to various persons of his choice. The alleged ratification of his e-mail instructions by telephone calls are false. In fact, the complainant had been issuing directions through the following e-mail ids (1) [email protected], (2) [email protected] [email protected] and [email protected]. The opposite party was totally unaware as the hacking of the e-mail id of the complainant by unknown fraudster. . However, on 27.04.2012 the third opposite party received an e-mail from the e-mail id vijayakaladas2003@yahoo.,com informing them that someone hacked his e-mail id [email protected] and requesting them not to entertain any request from the said e-mail. On receipt of the above e -mail the opposite parties had telephonically contacted the complainant and requested him to send a written confirmation. Such written confirmation was not received by the opposite party.
6. Complainant has deliberately suppressed the fact of having issued various e-mails and having carried out transactions and communications from 24.07.2012 to 16.08.2012 through his various e-mail ids. However, the complainant did not register any alternative e-mail id with the bank. In view of the existence of the e-mail id the bank was well within its right to accept communication from all the sources and the bank accepted and acted upon such communication in the normal course of prudent banking transactions. While so the third opposite party received e-mail from the complainant on 14.08.2012 through his e-mail id [email protected] requesting them to transfer 12,000 US $ from his NRE account. Since there was no sufficient balance in his NRE account, the third opposite party gave reply that there was no sufficient balance in his account other than a fixed deposit and requested him to inform whether any remittance is to be made from his NRE account so as to enable transfer of funds as per his request. In response the complainant expressed his gratitude for the prompt service rendered and advised the third opposite party to close or cancel the fixed deposit in his name and reconfirm the balance available. In fact, the reply e-mail issued by the complainant was through a different e-mail id namely nicoviijay@yahoo,com. In fact, the complainant had never informed that he had deleted his e-mai account [email protected] or that he had created a new e-mai id or that he wanted to get any other e-mai id registered as his official e-mail id. The name of the complainant would be displayed and not the e-mail id. Only when print out is taken the e-mail id is revealed. The opposite party as a prudent banker while receiving the request for transfer of funds had replied that payment for import of steel needs import documents emigration clearance and other documents as stipulated by RBI and requested the complainant to contact the bank in the given telephonic number. However the complainant in reply modified the amount from US # 12000 to US $ 9000 and stated that the payment was for renovation purpose. The third opposite party as a prudent banker accepted the new id, as the complainant was in the habit of corresponding with the opposite parties through various e-mail ids in his correspondences and had been continuing to do so even after the letter dated 14.08.2012. The transfer of amounts as alleged in the complaint on 14.08.2012 , 04.09.2012, 05.09.2012, 12.09.2012, are admitted .It is admitted that statement of accounts as required by the complainant was forwarded to him. The complainant disowns the e-mail id [email protected] as not that of his id for the purpose of this case. There was no occasion for the opposite parties to doubt the genuineness of the e-mail id. The complainant had not deleted his earlier e-mail id and the new e-mail id tallies with the old one expect in one aspect. The complainant is trying to take advantage of the various correspondences and action taken by the opposite parties in good faith. If at all the allegation of hacking is true, it is the complainant who is to be blamed.
7. The opposite patties on being informed by the complainant that the transactions mentioned in the complaint were not based on his directions had submitted complaint on 11.10.;2012 before the Sub Inspector of Police, Medical College police station, Thiruvananthapuram and on that basis the station house officer had registered FIR No.1447/2011 . The crime is now under investigation. The complainant has been using the same e-mail ids even after the alleged hacking. It is incorrect to say that opposite parties have violated RBI guidelines while transferring funds. There was no deficiency in service on the part of the opposite parties. They have committed no unfair trade practice. The complaint is not entitled to any of the reliefs.
8. On the above pleadings the following points arise for decision.
1. Whether the complaint is maintainable before the consumer commission?
2. Whether the complainant has succeeded in establishing deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to realize compensation, if so what is the quantum?
9. The evidence consists of the deposition of the complainant as PW1. Exts. A1 to A8 marked on his side, the deposition of one witness examined on the side of the opposite parties as DW1 and Exts. B1 to B15 marked on the side of the opposite parties. After the evidence was recorded, arguments were heard.
Point No.2
10. It is not disputed that the complainant is a business man running an engineering and construction company at Doha, Qatar. It is admitted in the version that the complainant had opened an NRE account with the third opposite party branch of the canara bank on 17.08.2010. He had also opened a savings bank NRO account with the third opposite party. The complainant also held an NRE fixed deposit account. It is further admitted in the version that at the time of opening the account the complainant had submitted his e-mail id as [email protected]. This was a registered e-mail id held by the complainant. According to the complainant on 26.04.2005 he came to know that his e-mail id [email protected] was hacked by unknown fraudsters and the matter was intimated to the opposite parties on 27.04.2012 itself through his another e-mail id [email protected] as per which the opposite parties apart from being intimated about the hacking of the e-mail id, were strictly directed not to entertain an e-mail correspondence from the hacked mail box. The fact that such an intimation was given to the opposite parties is admitted .According to the complainant on noticing discrepancy in his account when the accounts were verified it was found that his fixed deposit was closed and that amount was transferred through the NRE account to some banks abroad. The complainant maintains that all these were made without prior intimation or instruction from the complainant. The disputed transactions are US $ 90,000 transferred on 16.08.2012, US $ 27,000 transferred on 04.09.2012. US $ 30,000 transferred on 05.09.2012 and US $ 20,500 transferred on 12.09.2012. Thus, the total amount withdrawn through the hacked e-mail id of the complainant was US $ 86,500 equivalent to Rs. 48,25,471/-. According to the complainant, the opposite parties failed to show sufficient care in allowing the transfers through the hacked e-mail id of the complaint and thus they committed clear deficiency in service. The hacked e-mail id is admittedly [email protected].
11. One of the contentions of the opposite parties is that the complainant had been issuing directions through this various e-mail ids including [email protected]. Regarding the other three e-mail ids there is no dispute that those are the registered e-mail ids of the complainant from among which [email protected] was hacked. While admitting that the third opposite party on 27.04.2012 had received e-mail through the e-mail id [email protected] informing that someone had hacked the complainant's e-mail id [email protected] (herein after referred to as the registered e-mail id) and request was made not to entertain any request through that e-mail id, the third opposite party maintains that they had telephonically contacted the complainant and requested him to send a written confirmation. Such a written confirmation was not received by them. There is no explanation forthcoming and there is no reason why the third opposite party insisted for written confirmation and failed to deactivate the above registered e-mail id forthwith. A prudent banker would have immediately deactivated the hacked registered e-mail id .
12. It appears that afterwards on 14.08.2012 a message is sent through the registered e-mail id of the complainant seeking to transfer US $ 12,000 in response of which reply was sent in the same e-mail id to the effect that the balance amount in NRE account was Rs.1,16,000/- only apart from an FD and seeking to know whether any remittance would be done in the NRE account of the complainant. Then came the e-mail through [email protected] (herein after referred to as the fake e-mail id) dated 14.08.2012 thanking the prompt response of the bank and a direction to cancel the fixed deposit of the complainant and to deposit the money in the NRE account. The subsequent four transfers were requested through the fake e-mail id of the complainant. Surprisingly in every case the opposite parties responded in the fake e-mail id itself while seeking confirmation.
13. DW1 the senior manager of the third opposite party branch of the canara bank when examined on behalf of the opposite parties claimed that the real beneficiary of the disputed transactions is the complainant himself but deposed subsequently that since the beneficiaries are all abroad, they were not in a position to enquire who were those persons. He admitted that all the disputed transfers of money were made to bank's in china. They were not able to make any enquiry as to whether the complainant had any connection with the beneficiaries. According to him, when the e-mails relating to the disputed transactions came the same was verified and tallied with the registered e- mail id of the complainant. Therefore reply was sent in the same e-mail id (fake email id). In one instance reply was sent to the effect that transfer of money could not be affected for business purpose and real purpose should be intimated. Transfer of money was made after receipt of reply. He admitted that in Exts.B1 & B2 [email protected] is shown as the e-mail id of the complainant. Apart from that no other e-mail id is registered in the name of the complainant. So it appears that the case that necoviijay@yahoo,.com is one of the e-mai id used by the complainant is taken in the version without any bonafides When confronted with the question whether all the disputed transactions were made through the registered e-mail id, DW1 answered that at first e-mail id was verified subsequently no verification was made. The reason was in the message only the name of the customer will be displayed. The e-mail id would not be displayed. To see the e-mail id the message has to be downloaded. DW1 admitted that confirmation of every transaction will have to be obtained but it is sheer negligence to seek confirmation from the fake e mail id. DW1 admitted that reply to the emails would be sent to the e-mail id from which the message was received. In the present case, all the replies were sent to the fake email id when the customer wanted that no transaction should be entertained as per request from the faked e - mail id. DW1 admitted that the disputed transfers were made through an e-mail id other than the registered e-mail id yet maintained that this is not deficiency in service. The reason stated is that the same e-mail id was used by the customer subsequently, but this appears to be not true. DW1 is a person who was not in the third opposite party branch of the bank at the time of disputed transactions. The e mails requesting to send scanned copies of the signature of the complainant were also sent in the fake e-mail id.
14. It is also relevant to see whether the complainant was in any way benefited by the disputed transfers of money. The opposite parties have contended that the attempt of the complainant is to get unlawful enrichment. But the very FIR registered by the Medical College Police shows the non involvement of the complainant in the fake transfers. The FIR was registered on the basis of Ext.B10 complaint submitted by the Manager of the third opposite party on 11.10.2012. By the time the fraud came to the notice of the opposite parties it is natural that attempt would be made to justify what all transpired from their side. This can be seen from Ext.B10 complaint as well. Yet as per FIR No.1447/2012 of Medical College Police Station, unauthorized withdrawals through e-mail from the account of the complainant were made by unknown persons and the amounts were transferred to Banks in china. It is specifically mentioned that unauthorized transfers of US $ 86,500 equivalent to Indian Rs.4,82,818/- was made. It is admitted that the crime was transferred for investigation to the cyber cell and the final report is yet to be filed and the actual beneficiaries of the fraudulent transfers are yet to be known.
15. In short, there is absolutely no indication that the complainant was involved in the fraudulent transfers of money from his account. There is no indication that he was directly or indirectly benefited by the fraudulent transfers. But the indication is otherwise and even the FIR was registered without implicating the complainant. It is true that the complainant was operating his accounts with the opposite parties through three different e-mail ids. But the contention that the e-mail id [email protected] was an e-mail id of the complainant is not true. Admittedly, [email protected] was the registered e-mail id of the complainant as early. As early as on 27.04.2012 when there was suspicion that the registered e-mail id of the complainant was hacked admittedly, intimation was given and the opposite parties were directed not to entertain any e-mails from the said registered e-mail id for any money transaction or other banking purposes. This intimation was not taken serious note of by the opposite parties. Lame contentions are raised that alternative e-mail id was not registered and there was no direction to delete hacked register e-mail id. This argument to say the least is imprudence on the part of the opposite parties. They ought to have deactivated the hacked registered e-mail id forthwith on getting the intimation dated 27.04.2008. Not only that this was not done when order to transfer money was apparently issued by hackers without simply intimating that, that much money was not available in the account of the complainant, the opposite parties furnished details regarding the fixed deposit of the complainant. All the subsequent orders for transfer of money were issued from the fake e-mail id and in response the opposite parties sent all communications the same fake e-mail id. In doing so the opposite parties were absolutely careless and negligent and betrayed the trust reposed by the customer in them. As prudent bankers they ought to have handled the money held in trust by them with utmost care and caution. This was not done. They failed in their duty to see that e-mail directions came from the authorized person namely the complainant. At the same time, involvement of the complainant in the fraudulent transfers is not likely. Hence the opposite parties have committed deficiency in service and are bound to compensate the loss sustained to the complainant as a direct consequence of their deficiency in service. The point is found accordingly.
Point No.1
16. The contention of the opposite parties is that the complaint is not maintainable without the actual beneficiaries on the party array. But as pointed out already the actual beneficiaries are yet to be known and they are foreign nationals. The complainant cannot be blamed for the fraudulent transfers of money which happened as a direct consequence of the opposite parties failing to exercise due care and caution in making the transfers of money. The second reason why the contention that the complaint is not maintainable is raised is that the complaint requires voluminous evidence and not suitable for adjudication before the consumer commission. But from the evidence referred to it is clear that this is a simple case of failure of the opposite parties in discharging their duty to take due care and caution. So both the contentions are without merit. Hence we hold that the complaint is maintainable before this commission.
Point No.3
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 had lost US $ 86,500 equivalent to 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.48,25,670/- 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 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.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
A.RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
APPENDIX
List of witness for the complainant
PW1 - Vijayakumaran Raghavan
List of Exhibits from the complainant
Ext.A1 - Copy of Power of attorney
Ext.A2 - Copy of e-mail dated 27.04.2012
Ext.A3 - Copy of bank statement and reply mail
Ext.A4 - Copy of bank statement of NRE account
Ext.A5 - Copy of request
Ext.A6 - Copy of notice
Ext.A7 - Copy of reply notice dated: 24.12.2012
Ext.A8 - Copy of notice dated 04.01.2013
List of witness for the opposite party
DW1 - Radha Krishnan
List of Exhibits from the opposite parties
Ext.B1 - Copy of account opening form submitted by the
Complainant dated 17.08.2010
Ext.B2 - Copy of account opening form submitted by the
Complainant dated 04.12.2010
Ext.B3 - Copy of specimen signature card dated 06.12.2010 and
17.08.2010
Ext.B4 - Copy of account opening form dated nil
Ext.B5 - Copy of e-mail conversation between complainant and
opp.party
Ext.B6 - Copy of deposit receipt dated 02.02.2012
Ext.B7 - Copy of computer printout of customer information master
Maintenance dated 07.10.2013
Ext.B8 - Statement of account of complainant for the period from
17.08.2010 to 07.10.2013
Ext.B9 - Copy of letter dated 11.10.2012 submitted by opp.party to
the Circle Inspector of Police, Medical College
Ext.B10 - Copy of FIR dated 12.10.2012
Ext.B11 - Copy of letter dated 05.12.2012
Ext.B12 - Copy of message dated 09.10.2012
Ext.B13 - Copy of computer extract of fund receipts slip dated
09.10.2012
Ext.B14 - Copy of e-mail dated 03.09.2012
Ext.B 15 - Copy of e-mail dated 03.09.2012.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
A.RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Be/
KERALA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
SISUVIHARLANE
VAZHUTHACADU
THIRUVANANTHAPURAM
CC.NO.21/13
JUDGMENT DATED : 28.09.2015
Be/