State Consumer Disputes Redressal Commission
Smita Oberoi Mother & Guardian Of Minor ... vs Ms Axis Bank Ltd. on 12 April, 2023
CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 13.10.2021
Date of hearing: 15.02.2023
Date of Decision: 12.04.2023
CONSUMER COMPLAINT NO.186/2021
IN THE MATTER OF
MS. SMITA OBEROI,
MOTHER AND GUARDIAN OF MINOR DAUGHTER
MS. EKMITA SINGH,
THROUGH SPA MR. RANJIT SINGH OBEROI,
HOUSE NO.1799, 1ST FLOOR,
OUTRAM LINES, GTB NAGAR,
DELHI-110009.
(Through: Mr. Mukul Dhawan, Advocate)
...Complainant
VERSUS
M/S AXIS BANK LTD,
CIVIL LINES BRANCH,
THROUGH BRANCH HEAD,
13, ALIPUR ROAD,
CIVIL LINES, DELHI-110054.
(Through: Trinity Law Associates)
.....Opposite Party
DISMISSED PAGE 1 OF 11
CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Mukul Dhawan with Mr. Sparsh Gola, Counsel for
the Complainant.
Mr. L.R. Goyal, Counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Complaint has been filed by the Complainant before this Commission alleging deficiency of service by the Opposite Party and has prayed the following:
i. "award Rs. 2,67,16,075 (Two Crore Sixty-Seven Lakhs Sixteen Thousand Seventy-Five Rupees Only) as just compensation in favour of the complainant and against the opposite party for its failure to reimburse the same as stipulated in Clause 17.2 of the RBI circular on customer service.
ii. award interest @ 12% per annum along with the principal sum from 30-04-2021 till the filing of the Petition in October 2021 and future interest till its realization. iii. pass such further and/or other order, direction or relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
DISMISSED PAGE 2 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023
2. The brief facts necessary for the adjudication of the present Complaint are that the Complainant is a citizen of the USA of Indian origin having an NRE Account bearing No.9017010002112109 with the Opposite Party-bank, opened in March 2017 in the name of her minor daughter Ms. Ekmita Singh. Vide an email dated 15.11.2020, the Complainant informed the bank not to share the details of Account No.9017010002112109 citing some family dispute. Pursuant to the said instructions, on 16th November 2020, the branch Operations Head confirmed that the Customer details are confidential and cannot be shared with anyone. Subsequently, the Complainant on 30.04.2021 came to know that one employee of the Opposite Party having Employee Id 204551 working at DaryaGanj branch shared the account statement of the Complainant's daughter's account with an unknown entity. This came as a shock to the Complainant when her estranged husband produced the entire bank statement w.e.f. the year 2017 till 30.04.21 in the US court in May 2021. Thereafter, the Complainant sent a legal notice dated 28.07.2021 to the Opposite Party claiming just compensation. The Opposite Party took serious note of the complaint as averred in the legal notice and stated that stringent action shall be taken against the delinquent employee but turned down the request for compensation vide its reply to the legal notice dated 06.08.2021. The Complainant again sent a rejoinder dated 21.08.2021 to the reply of the Opposite Party stating that all the branches of the Opposite Party-bank were sensitized in regard to maintaining the confidentiality of the account details but the same was not adhered to by the employee of the Opposite Party at DaryaGanj branch which is fraudulent conduct and demonstrates utmost irregularity on part of the Opposite Party. The Complainant time and again made DISMISSED PAGE 3 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 numerous telephonic calls and personal visits to the officials of the Opposite Party but the concerned officers kept on delaying the matter on one pretext or the other.
3. The Complainant has alleged that the due to the default, negligence and deficiency in service on account of disclosure of confidential information to a 3rd party, the statement was misused by her estranged husband in a matrimonial dispute, thereby depriving the Complainant of valuable money amounting to Rs.01,04,39,467/-. Secondly, it is stated that the Opposite Party has acted in contravention of Clause 17(2) of the RBI guidelines. Thirdly, it is stated that not only the Opposite Party is liable for breach of fiduciary relationship and deficient services but has indulged in unfair trade practices as defined under section 47 of the Consumer Protection Act, 2019.
4. The Opposite Party has contended the present case and has stated therein that no information has been divulged on part of the Opposite Party.
Further, it is submitted that the Opposite Party had assured the Complainant that stringent action shall be taken against the concerned employee for the alleged unauthorised act and had also assured that all branches of the Opposite Party were sensitised to prevent such lapses in the future. Secondly, it is submitted that no fraud whatsoever has been committed in the present case and as such clause 17.2 of the RBI circular which pertains to compensation with respect to the commission of fraud, is not applicable to the matter in hand Thirdly, it is submitted that no other person except the Complainant knows the details of the account of her daughter and that the estranged husband of the Complainant might have obtained the details of their daughter's account during their happy days. Pressing the aforesaid contentions and submitting that the DISMISSED PAGE 4 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 machinery under the Consumer Protection Act 2019 must not be allowed to turn into a source of unjust self-enrichment, the Opposite Party has prayed for the dismissal of the Complaint.
5. The Complainant has filed its Rejoinder rebutting the written statement filed by the Opposite Party. The Evidence of the parties by way of Affidavit & written arguments on behalf of the parties are on record.
6. We have perused the material available on record and heard the counsels for the parties at length.
7. The main question that falls for our consideration is whether the Opposite Party-bank is liable for the alleged loss suffered by the Complainant on account of submission of Statement of Account by her estranged husband before the USA court.
8. In view of the factual matrix of the present case, it is the primary contention of the Complainant that the account statement of her minor daughter has been divulged to an unknown 3rd party by an employee i.e. Employee ID 204551 working at DaryaGanj branch of the Opposite Party-bank. However, no material has been placed on record to ascertain the identity of such 3rd party. Here, it is pertinent to remark that a mere bald averment as to the conduct of the employee of the Opposite Party cannot be a conclusive ground to establish his/her indulgence in an act of delinquency. Furthermore, no cogent evidence viz. the system log details of the user, communication with the alleged 3rd party etc, has been placed on record to show whether the said employee was actually delinquent in his/her conduct. Thus, in light of the insufficient material placed on record, drawing a negative inference against the conduct of the Opposite Party shall be a far-fetched endeavour.
DISMISSED PAGE 5 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023
9. At this juncture, we deem it appropriate to refer to the Consumer Case No. 1520 of 2015 titled as Ashok Kumar Goel vs Branch Manager, ICICI Bank decided on 21 January 2016, wherein the Hon'ble National Commission encountered a similar factual matrix, as under-
"The grievance of the complainant is that the respondent bank unauthorizedly disclosed the details of his bank account to Mr. Sudhakar Rao, who filed a criminal complaint before the Metropolitan Magistrate against him annexing the copy of the said bank statement as an Annexure to the complaint. According to the complainant, his bank details were also disclosed to another employee of the bank Mr. Kusupati Harshvardhan, who filed another complaint against him before the Metropolitan Magistrate. Being aggrieved from the above referred supply of his bank statement to Shri Sudhakar Rao and Shri Kusupati Harshvardhan, the complainant is before this Commission, seeking a compensation quantified at Rs.15.00 crores, besides expenses quantified at Rs.1,00,000/-."
10. The Hon'ble National Commission further observed -
"3. We have heard the complainant on the pecuniary value of this complaint. In our view, amount demanded by the complainant as compensation is highly exaggerated and wholly irrational and untenable and does not commensurate with the alleged deficiency on the part of the opposite party. The alleged unauthorized supply of the bank statement, in our view, cannot possibly result in award of such huge damages when the complainant is not able to show any substantial damage or loss of reputation etc. to him on account of the alleged unauthorized supply of his bank statement. We have perused the complaint filed by Shri Sudhakar Rao against the petitioner and his family members before the Metropolitan Magistrate at Cyberabad. The aforesaid complaint is based upon factual allegations constituting criminal offences and the bank statement of the complainant is only one of the documents filed by Shri Sudhakar Rao in support of the complaint. Therefore, it cannot be said that the bank statement DISMISSED PAGE 6 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 of the account of the complainant is the basis of the complaint filed by Sudhakar Rao against the complainant and his family members, nor can it be said that had the bank not supplied the said statement to Mr. Sudhakar Rao he would not have filed the criminal complaint against the complainant and his family members. In fact, nothing prevented Shri Sudhakar Rao from summoning the bank statement of the complainant through the process of the Court since such a statement is not a privileged document disclosure of which can be withheld from a criminal court. Therefore, it would be difficult for us to say that the complainant is entitled to any substantial amount as damages from the opposite party on account of the alleged supply of bank statement to Shri Sudhakar Rao and Shri Kusupati Harshvardhan."
11. From the aforesaid dicta, it is clear that the Hon'ble National Commission under a similar factual matrix opined that exponential compensation cannot be awarded when Complainant is not able to show any substantial damage or loss suffered on account of the alleged unauthorized supply of his bank statement. In the present matter, the Complainant has demanded compensation under a similar allegation of divulging the account statement by the Opposite Party to some unknown 3rd party. However, in view of the aforesaid dicta, the pivotal point to be considered is that the Complainant has claimed compensation but no material has been placed on record by the Complainant to prove the alleged misconduct on part of the Opposite Party. Here it is crucial to remark that it is an established position of law that the initial onus and burden of proof to establish deficiency or negligent service lies on the Complainant alleging such default or deficiency. The Complainant has simply relied on the Opposite Party's reply dated 06.08.2021 (Annexure K annexed with the Complaint) wherein the Opposite Party has denied the averments against it but has informed the Complainant that it has DISMISSED PAGE 7 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 taken serious note of the said allegations by starting an investigation and assuring that stringent disciplinary action shall be taken against the delinquent employee, if found to be involved in unauthorized acts. However, on a perusal of the record, nowhere in the said reply the Opposite Party has admitted the averments against it. Neither any cogent evidence indicating the involvement of the employee has been placed on record nor any investigation report recording the role of the said employee has been filed. As such, the involvement of the bank's employee in unauthorized acts cannot be presumed by merely relying on bald averments made in the Complaint.
12. Secondly, the Complainant has alleged that she has suffered a loss of Rs.2,67,16,075/- including damages and the amount of $1,35,000 directed to be paid by the Court in the USA vide its order dated 18.06.2021. Further, reliance has been placed on clause 17.2 of the Master Circular in Customer Service in Banks 2015 which is reproduced hereunder for ready reference -
"17.2 Compensating the customer Besides in cases of the above kind, banks also do not restore funds promptly to customers even in bonafide cases but defer action till completion of either departmental action or police interrogation. Therefore,(i) In case of any fraud, if the branch is convinced that an irregularity / fraud has been committed by its staff towards any constituent, the branch should at once acknowledge its liability and pay the just claim, (ii) in cases where banks are at fault, the banks should compensate customers without demur, and (iii) in cases where neither the bank is at fault nor the customer is at fault but the fault lies elsewhere in the system, then also the banks should compensate the customers (up to a limit) as part of a Board approved customer relations policy."
DISMISSED PAGE 8 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023
13. On a perusal of the above guidelines, it is clear that in case the concerned branch of the bank is convinced about the Commission of any irregularity/fraud by its staff, compensation should be paid at once by the branch in question. However, a perusal of the record nowhere suggests the Commission of fraud in the present matter. The Complainant has merely made a reference to the highest balance maintained in the account as being Rs.2,67,160,75/- and has demanded compensation to the tune of Rs.2,67,160,75/-. Merely a reference to the balance maintained in the account cannot be the sole ground to avail the entire amount as compensation without proving any justified loss or damage. The Complainant has failed to bring on record any material relying on which the damage or loss suffered could be ascertained nor any calculation sheet explaining how the Complainant has arrived at such an exorbitant figure is annexed with the Complaint. In our opinion, the aforesaid amount of Rs.2,67,160,75/- sought as compensation is not commensurate to the loss or damage suffered by the Complainant.
14. Thirdly, the Complainant has attributed negligence and default to the conduct of the Opposite Party in so much so that the Statement of her daughter's account was produced in the USA Court depriving her of a valuable sum. Considering the observations of the Hon'ble National Commission in Ashok Kumar Goel (supra) and keeping in view the facts of the present matter, it is to be noted that the litigation in the USA court pertained to a matrimonial dispute between the Complainant and her estranged husband and the bank statement is only one of the documents which were produced during the course of the matrimonial litigation in the USA. The production of such documents was only incidental to the matrimonial litigation. Therefore, it cannot be said that in all probability, DISMISSED PAGE 9 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 only the bank statement of the Complainant's daughter was the foundation of the subject matter of litigation in the USA. Even if it is assumed that had the bank not divulged the said statement to the unknown 3rd party, it cannot be said that the Complainant's estranged husband could not have pursued the said matrimonial litigation. In fact, nothing prevented the Complainant's estranged husband from summoning the said bank statement through the process of the Court since such a statement is not a privileged document, disclosure of which could be withheld from the court of law. Further, it can be deduced that the pleadings of the Complainant boil down to the contention that had the said statement not been produced in the USA court, her daughter would not have been deprived of the valuable money. However, this Commission being a judicial body entrusted with the duty of imparting justice, cannot violate the foundational principles of justice by taking a lenient view in allowing the suppression of facts by the Complainant as the same shall tantamount to aiding the Complainant in influencing the justice dispensing machinery in the USA.
15. Therefore, it would be difficult for us to say that the Complainant is entitled to any substantial amount as damages from the Opposite Party on account of the alleged disclosure of the bank statement.
16. Therefore in the light of the aforesaid legal position and the discussion pursuant thereto, the present Complaint stands dismissed with no order as to costs.
17. Application(s) pending, if any, stand disposed of in terms of the aforesaid Judgment.
18. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The judgment DISMISSED PAGE 10 OF 11 CC.NO.186/2021 MS. SMITA OBEROI VS M/S AXIS BANK LTD D.O.D.12.04.2023 be uploaded forthwith on the website of the Commission for the perusal of the parties.
19. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
12.04.2023 DISMISSED PAGE 11 OF 11