State Consumer Disputes Redressal Commission
Kotak Mahindra Bank Ltd., 36-38 A, ... vs Surinder Kumar Modi Resident Of H. No. ... on 30 April, 2010
2nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH. First Appeal No. 128 of 2010 Date of institution : 29.1.2010 Date of Decision : 30.4.2010 1. Kotak Mahindra Bank Ltd., 36-38 A, Nariman Bhavan, 227 Nariman Point, Mumbai-400021 through its Chairman. 2. Kotak Mahindra Bank Ltd., Nakodar Branch, Nakodar through its Branch Manager/Chief Manager. 3. Gulbir Singh, Manager, Kotal Mahindra Bank, Apra, Goraya. .Appellants. Versus Surinder Kumar Modi resident of H. No. 378-C, New Adarsh Nagar, Nakodar, Jalandhar. Respondent. First Appeal against the order dated 9.11.2009 of the District Consumer Disputes Redressal Forum, Jalandhar. Before:- Lt. Col. Darshan Singh (Retd.), Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Birinder Singh, Advocate For the respondent :
Sh. Puneet Sharma, Advocate PIARE LAL GARG, MEMBER:
This order will dispose of two appeals i.e. First Appeal No. 128 of 2010(Kotak Mahindra Bank Ltd. & others Vs. Surinder Kumar Modi), and First Appeal No. 231 of 2010(Surinder Kumar Modi Vs. Kotak Mahindra Bank Ltd. & others) as the same are preferred against the same impugned order dated 9.11.2009 by which the learned District Consumer Disputes Redressal Forum, Jalandhar(in short the District Forum) has accepted the complaint of the respondent/complainant(in short, the respondent). Both the appeals are being disposed of with a single order as the dispute is similar and the question of law involved in both the appeals is also similar and common. The facts are taken from First Appeal No. 128 of 2010 and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that the respondent was having Bank A/c No. 02580140004736 with appellant No. 2 Kotak Mahindra Bank Ltd., Nakodar. He was also having Kotak Mahindra Bank Gold Debit Card/ATM No. 4283482000009654 in which facility of daily withdrawl and purchase limit of Rs. 1.75 lac was provided. Respondent had used this card by following the guidelines/users manual issued by the appellants. The card was issued with the facility of international operations and for using the card in all the major countries of the world and in all known banks. On 5.8.2008, respondent had gone to Great Britain for two months. On 25.8.2008, he used the ATM of Lloyds T.S.B. at South Hall, London for withdrawing the money. He inserted his card and entered the password but no cash/money was remitted from the ATM then he cancelled all his operations. He tried again but of no use as the card was remained in the ATM machine. He rushed to Lloyds Bank and told the official regarding the entire series of events and after that official advised him to get the card and funds blocked as the card may not be hacked and used illegally by miscreants. Then the respondent called appellant No. 3 at 3.47 P.M.(UK Time) and apprised about the whole episode and also informed about his apprehension of hacking of his card. He had given instructions to appellant No. 3 to block his card and funds immediately so that his card may not be mis-used by any unscrupulous elements as incidents of hacking the card are common over there. Appellant No. 3 assured him that his card will be blocked immediately and none will be able to withdraw the money. At 10.15 AM (U.K. Time), the respondent had again called to appellant No. 3 regarding confirming the status of his card and also freezing of his card and funds. On this, appellant No. 3 told that instructions to block the card had been given but he would be sending the e-mail as cautionary step and liability of the bank starts and that of the consumer ceases. Despite assurance of appellant No. 3, he visited the branch of Lloyds T.S.B. Bank and narrated the happenings of 25.8.2008 to the official namely, Palvi, and requested for the return of the card but she told that there was no provision of returning the card. On 27.8.2008, the respondent had switched on his Indian Mobile. He was shocked to receive SMS that the balance in his account was only Rs. 307/-. It was pleaded that before retention of his card in ATM on 25.8.2008, his account balance was Rs. 4,76,500/-.
3. Alleging that appellants were deficient in rendering service on the ground of failing to block his card, he had suffered huge monetary loss. He had lodged complaint with Metropolitan Police London South Hall. He had pre-poned his trip and return back to India on 2.9.2008. He filed the complaint as well as e-mail to appellant No. 2 but they tried to escape from their liability on the basis of non-issuing the instructions of blocking the card. On 19.9.08 few higher officials of appellant No. 2 Bank had assured the respondent that his amount shall be credited into his account on the condition of withdrawl of all the allegations and absolving the bank from its liability. As a result of which, they got letter dated 19.9.08 signed from him, which was neither voluntary nor of free will and was resulted on false representation and endorsement made by the officials of the appellant bank. Alleging deficiency in service on the part of the appellants on account of not blocking his ATM Card and funds, the respondent prayed that the appellants may be directed to pay Rs. 4,76,000/- alongwith interest and damages.
4. Appellants replied by taking preliminary objections that the complaint was filed with malafide designs, as such, respondent was estopped to file the complaint by his own act and conduct. It was admitted that the respondent had bank account with the appellant and ATM cum Debit Card was issued with the purchase and withdrawl of cash limit of Rs. 1,75,000/- per day with international transactions. It was pleaded that with every such card of high transaction limit, user manual was supplied to the customers. It was denied for want of knowledge that the respondent had visited Great Britain on 5.8.2008 and inserted his ATM Card in the ATM Machine of Lloyds T.S.B. at South Hall, London and that ATM was retained in the ATM Machine or he had filed any complaint to the official of the Lloyds Bank. But it was admitted that on 25.8.2008, the respondent called up Mr. Gulbir Singh Bindra, Manager, Bank Goraya appellant No. 3 and Ms. Arvind Kaur of the Sales Team but not lodged any request for blocking the debit card. It was pleaded that while talking to Ms. Arvind Kaur, respondent did not make any request for blocking of his card but only informed that his card had been retained in the ATM Machine of Lloyds Bank, which he shall however get it on the next working day. Ms. Arvind Kaur had suggested the respondent to get his card blocked but the respondent stated that his password was secure and nobody knows it and blocking of the same cause unnecessary harassment to him during his stay at abroad. It was denied that there was any specific instruction issued by the respondent to block his card as such, the card was not blocked. Respondent, who was an ex-bank officer was very well aware of the banking rules and regulations and could have sent an e-mail to the bank and giving instructions for blocking his card or should had followed the procedure prescribed in this regard. On enquiry, it was revealed that ATM Card of the respondent was used more than 20 times between 25.8.08 to 27.8.08 at different locations, as such, claim of the respondent that his card got retained by the machine appears to be frivolous. Respondent had also failed to provide ATM machine number in which his card was retained. It was pleaded that vide letter dated 19.9.08 the respondent appreciated the efforts of the appellants bank and accepted that appellants Bank was not at fault. It was denied that the appellants were deficient in rendering service and dismissal of the complaint was prayed for.
5. Learned District Forum after hearing the learned counsel for the parties and going through the record, accepted the complaint and directed the appellants to debit the amount of Rs. 4,76,000/- in the account of the respondent and also awarded compensation as well as litigation expenses of Rs. 15,000/- to the respondent. If the appellants failed to pay the same within one month from the receipt of the copy of the order, appellants will be liable to pay interest @ 7% on the awarded amount till payment.
6. Hence, the appeal.
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The appellants have filed the appeal on the ground that the order of the District Forum is against the law and facts of the case. The respondent has failed to produce any evidence of specific instructions to the appellant or its officials about the blocking of the card and as such, the appellants were not deficient to provide the services to the respondent.
9. Admittedly the respondent was having bank account bearing No. 02580140004736 and also having Gold Debit Card/ATM Card No. 4283482000009654 issued by the appellants Kotak Mahindra Bank with the facility of daily withdrawl of Rs. 1.75 lacs and daily purchase limit of Rs. 1.75 lacs. The card had international operations and can be used in the foreign also.
10. The version of the respondent is that on 5.8.2008 he had gone to Great Britain for two months. On 25.8.2008 he had gone to ATM of Lloyds T.S.B. at South Hall, London to withdraw some money and inserted his ATM card, entered the password but the cash/money was not remitted. He had cancelled all the operations and tried again but unfortunately debit card was not come out from the machine. He tried again but of no use. It is alleged by the respondent that he had reported the matter to the official of the Branch of Lloyds Bank, who advised him to block the card as the same may not be hacked and used illegally by the miscreants. So, he had made a telephone call to appellant No. 3 Sh. Gulbir Singh, Manager on 25.8.2008 at 3.47 p.m. (U.K. Time) as well as to Ms. Arvind Kaur of the Sales Team of the appellants Bank and narrated them the whole episode and his apprehension of hacking of his card and instructed them to block his debit card so that the card may not be mis-used by any unscrupulous person by hacking his debit card. They assured the respondent that the card shall be blocked immediately. It is also the version of the respondent that he again confirmed from appellant No. 3 at 10.00 a.m. (U.K. Time) regarding the blocking of the card, who had replied that the instructions had already been issued to block the card at the same time and he would again send the e-mail as a cautionary step. On 27.8.2008 when the respondent switched on his mobile phone, he had come to know from SMS that an amount of Rs. 4,76,000/- was withdrawn from his account by some unscrupulous person as the appellants had failed to block the debit card of the respondent despite the respondent had already informed regarding the fate of debit card and instructed to appellant No. 3 as well as to Ms. Arvind Kaur to block his debit card.
11. On the other hand, it was admitted by the appellants that the telephone calls were received from the respondent by appellant No. 3 as well as by Ms. Arvind Kaur. Respondent had narrated the whole episode regarding that his card had been retained by ATM machine of Lloyds Bank but he had not instructed for the blocking of the debit card, as such, there was no fault of the appellants for not blocking the debit card of the respondent. The respondent himself was responsible for the withdrawl of the amount of Rs. 4,76,000/- from his account through debit card by any unscrupulous person. The respondent had failed to follow the guidelines regarding the use of the debit card, which were supplied by the appellants to the respondent at the time of issuance of the debit card in dispute.
12. Now there are only the following disputes which are to be decided:-
1. Whether the respondent had informed the appellants regarding the loss of the debit card and also instructed appellant No. 3 as well as Ms. Arvind Kaur or not for blocking of the debit card?
2. Whether the written request or oral request was necessary on the part of the respondent for the blocking of the debit card or not?
13. There is no dispute rather it is admitted case of the appellants in their para No. 3 of the parawise reply as well as in the affidavit of Gulbir Bindra appellant No. 3 that the respondent had informed regarding the loss of debit card on 25.8.2008 to Gulbir Singh Bindra and Ms. Arvind Kaur. The same are reproduced as under:-
On 25.08.2008 the Complainant did call up Mr. Gulbir Singh Bindra of our Bank and asked for the number of Ms. Arvind Kaur of the Sales Team. The Complainant did not lodge any request for blocking of the card. It is further submitted that while talking to Ms. Arvind Kaur also the Complainant did not make any request for blocking of the card but, only apprised her that his card has been retained by the ATM machine of Lloyds bank, however he shall get it on the next working day. In fact, it was Ms. Arvind Kaur who suggested the Complainant to get his card blocked but, on this the Complainant clarified that his password is secure and nobody knows it and blocking of the same would cause unnecessary harassment to him during his stay abroad.
Affidavit
3. I say that the Complainant called me up on 25.08.2008 and asked for Ms. Arvind Kaur. I say that the Complainant did not instruct me or Ms. Arvind Kaur that the ATM cum Debit Card be blocked.
14. From the perusal of the above admission of the appellants, it is proved beyond doubt that the respondent had immediately on 25.8.2008, had informed appellant No. 3 as well as Ms. Arvind Kaur of the Sales Team of the appellants bank for the loss of debit card. Appellants had tendered into evidence photostat copy of the instructions as Ex. CW-2, regarding the procedure, which was to be adopted by the debit card holder in case of loss or stolen the card. The same is reproduced as under:-
Reporting a Lost/Stolen Card Report the loss/theft of your Card immediately to any branch of Kotak Mahindra Bank or call our 24 Hrs Customer Contact Care Centre on 1800 116022 ( North India) OR 1800 226022 (Rest of India) Abroad, you can report your lost Card immediately by calling VISA Global Assistance Services Helpline at the following toll free numbers:
* Australia : 1-800-450346 * HongKong : 800-900-782 * Canada : 886-639-1911 * United Kingdom: 0800-169-5189 * Singapore : 800-4481-250 * U.S.A. : 866-765-9644 For more information on VISA Global Assistance Numbers in other countries, you can check the local telephone directories/Yellow Pages or visit www.VISA.com Charges for using VISA Global Asistance Services:
Reporting a Lost/Stolen Card : USD 35per Card Other service enquires : USD 5 per call.
You can also call us at 0091-22-6600 6022 to report the loss/theft of your Card.
On reporting of the loss/theft, your Card will be immediately deactivated to prevent misuse. Please report the loss/theft of the Card to the nearest local police authority and forward a copy of the FIR to us.
15. So from the perusal of the above instructions, there is no instruction that the card holder must made the written or oral request for blocking of the card. The only duty of the card holder is to inform the appellants regarding the loss/theft of the debit card and it was the duty of the appellants to immediately deactivate the debit card of the card holder to prevent the mis-use of the same. The version of the respondent that he had also lodged the complaint to the Metropolitan Police of London South Hall and the same is not rebutted by the appellants, so as per the instructions produced by the appellants itself, proves that the respondent had comply with the instructions of the appellants but the appellants had failed to de-activate the debit card of the respondent immediately.
16. The respondent had produced letter Ex. C-9 addressed by Branch Manager, Nakodar of the appellants bank to the respondent in which the appellants also admitted that on 25.8.2008 the respondent had informed Mr. Gulbir Singh Bindra appellant No. 3 and also called to Ms. Arvind Kaur on the same day and informed that his card had been retained in the ATM machine. It is also admitted in the said letter that subsequently on 26.8.2008, the respondent had again called Mr. Gulbir Singh appellant No. 3 and informed him that the respondent was going to the concerned bank to collect the card. He again informed appellant No. 3 that the concerned bank official had informed the respondent that his card will be crushed. It is also alleged in the said letter that the respondent has not requested the officials of the bank to block the card. The respondent also produced the copy of the terms and conditions(Ex. C-17) of the bank of the appellants on page No. 153 of the District Forum file. The instructions have been given regarding the loss of the card, which are reproduced as under:-
Loss of Card: If the Card is lost/stolen Cardholder must immediately inform the Bank in person or by calling the Phone Banking number. In case of loss of Card abroad, the Cardholder may either call the Phone Banking number or the VISA Global Assist service number. Additionally the Cardholder should also file a report with the local police and send a physical true copy thereof to the Bank. The Bank upon receipt of intimation and after adequate verification of the Cardholder identity shall hot list the Card. The Customer shall be liable for all charges incurred on the Card till receipt of intimation of loss through above prescribed modes. The Customer however continues to be liable on charges, if any, incurred post sending intimation by any other mode apart from prescribed modes as above till the same is actioned/ hot-listed by the Bank.
Any instruction received by the Bank for hot listing of a Card cannot be revoked, even if the Card reported lost is subsequently found. In such a case, the Cardholder shall destroy the Card and shall indemnify the Bank for any loss suffered due to the failure to do so.
17. As per the above instructions, it was the duty of the appellants that on receipt of information regarding the loss/theft of the card by the card holder, shall hot-list the card and the same cannot be revoked even if the card reported lost is subsequently found.
18. So from the above instructions of the appellants bank, it is clear that the duty of the cardholder/respondent was only to inform the appellants regarding the loss of the debit card and the respondent had admittedly informed regarding the loss of his debit card, as such, there was no violation of any terms and conditions on the part of the respondent; rather, he had complied with the same.
19. Respondent had also tendered into evidence Ex. C-18, in which it was also informed regarding the insurance of the Gold Debit Card, which is reproduced as under:-
Insurance Benefits Gold Debit Card has in built insurance benefits specially designed to bring you peace of mind. Not only do you have a zero liability for all the charges after reporting loss of your card, your card also provides you purchase protection.
20. So from the perusal of the above clause, there was zero liability for all the charges after reporting loss of the card to the appellants by the respondent.
21. As per the above discussion, there is no dispute regarding the report of loss of the debit card by the respondent to the appellants, as such, the respondent is not liable for the amount in dispute i.e. Rs. 4,76,000/-, which was withdrawn by any unscrupulous person; after using the debit card of the respondent.
22. It is also the version of the appellants that the password of the card was only in the knowledge of the respondent, as such, the same could not be used by any other person. But the respondent had produced a letter written by Manager of the appellants Bank, Nakodar Branch to the respondent in which it was admitted that the ATM Pin was intimated to the respondent through SMS by the Service Manager of the Bank.
23. So from the above letter, it is also quite clear that ATM Pin was also not in the knowledge of the respondent alone and the same was not secret. The respondent also produced news regarding hacking of the card How ATM Skimming Can Rip You Off(Ex. C-19). The extract of which is reproduced as under:-
A team of organized criminals are installing equipment on legitimate bank ATMs in at least 2 regions to seal both the ATM card number and the PIN. The team sits nearby in a Car receiving the information transmitted wirelessly over weekends and evenings from equipment they install on the front of the ATM (see photos).
If you see an attachment like this, do not use the ATM card number and PIN are cleverly disguised to look like normal ATM equipment. A skimmer is mounted to the front of the normal ATM card slot that reads the ATM card number and transmits it to the criminals sitting in a nearby car. At the same time, a wireless camera is disguised to look like a leaflet holder and is mounted in a position to view ATM PIN entries.
The thieves copy the cards and use the PIN numbers to withdraw thousands from many accounts in a very short time directly from the bank ATM.
24. So from the perusal of the above reports, it is also not impossible for the thiefs to prepare the copy of the cards and use the PIN Nos. to withdraw the amount from the account of the debit card holder in a very short time directly from the account of the debit card holder.
25. It is not the version of the appellant that the card of the respondent was not retained in the ATM Machine of Lloyds T.S.B. Bank at South Hall, London.
It is also not the version of the appellants that the respondent himself withdrawn the amount in dispute to cheat the appellants Bank after using the ATM card in dispute.
26. Appellants had badly failed to produce any term or condition of the card by which it was the duty of the card holder to make a request for the blocking of the card, if the card is lost.
27. As per the instructions, the duty of the card holder was only to inform the appellants for the loss of the card and the respondent had admittedly informed the appellants for the same. As such, the appellants were deficient for not blocking/de-activating the card of the respondent immediately after the receipt of information regarding the loss of the card from the respondent.
28. The reply to the complaint as well as affidavit (Ex. CW-3) of the respondent before the District Forum was filed on behalf of the appellants by Sh. Sarika Prasad, Chief Manager, Legal of Kotal Mahindra Bank Limited having its Branch Office at Delhi and power of attorney/vakalatnama was also signed on behalf of the appellants/opposite parties by said Sarika Prasad as authorized signatory and Chief Manager, Legal of the appellants Bank alleging that he was authorized by the Board vide Resolution dated 28.4.2008 by which he was authorized to sign and verify the present affidavit being fully conversant with the facts and circumstances of the case. The appeal is also filed by said Sarika Prasad, Chief Manager as authorized signatory of the Kotak Mahindra Bank Ltd. but no copy of the resolution was/is produced and tendered into evidence by the appellants/opposite parties to prove that whether Sarika Prasad was authorized by the appellants/opposite parties vide resolution No. 28.4.2008 to file any reply/affidavit on behalf of the opposite parties or to file the present appeal on behalf of the appellants. Sh. Sarika Prasad or Chief Manager, Legal was not pleaded as opposite party in the complaint by the respondent, as such, we are of the view that the present appeal is not maintainable, which is not filed by any competent authority.
29. In view of the above discussion, the appeal of the appellant is meritless. We find no infirmity in the order of the District Forum.
30. The respondent also filed First Appeal No. 231 of 2010 Surinder Kumar Modi Versus Kotak Mahindra Bank Ltd.
& Others for the modification of the judgment/order dated 9.11.2009 of the District Forum, Jalandhar on the point of compensation and for the grant of exemplary costs.
31. District Forum has already granted appropriate compensation to the respondent, as such, no ground is made out for the enhancement of the compensation to the respondent.
32. As such, both the appeals are dismissed and the order of the District Forum is affirmed.
33. Appellants had deposited amounts of Rs.
25,000/- and Rs. 4,66000/- total Rs.
4,91,000/- with this Commission in First Appeal No. 128 of 2010. As per the above discussion, the respondent is entitled for the amount of Rs. 4,76,000/- which was debited by the appellants in his account and Rs. 15,000/- as compensation which was awarded by the District Forum in favour of the respondent and against the appellants.
34. This amount of Rs. 4,91,000/-
with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
35. Arguments in both the appeals were heard on 29.4.2010 and the order was reserved. Now the order be communicated to the parties.
36. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
37. Copy of this order be placed on First Appeal No. 231 of 2010(Surinder Kumar Modi Vs. Kotak Mahindra Bank Ltd. & others).
(Lt. Col. Darshan Singh [Retd.]) Presiding Member April 30, 2010. (Piare Lal Garg) as Member