(Delivered on 21/12/2021)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.

1.         Appellant- Union Bank of India has preferred the present appeal feeling aggrieved by the order dated 19/10/2020 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. CC/8/2020 whereby the complaint filed by the complainant came to be partly allowed.  (Appellant and respondent shall hereinafter  be referred as  per  original  nomenclature)

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Complainant –Mr. Ashok Eknathji Lambat has claimed that  he was resident  of Nagpur and was having saving account in O.P. bank bearing No. 517202010015273 and also was having  RuPay Debit Card issued by the O.P.- bank bearing  Card No. 6069925172036637. Complainant has alleged that on 18/07/2018 at 11.35 p.m.  he received  message on his mobile regarding  the withdrawal of amount of Rs. 10,000/- and Rs. 5000/-  in total Rs. 15,000/-. But in fact he had not  withdrawn  the said amount. On 19/07/2018 he approached to   O.P. bank and made enquiry  and came to know that  on 18/07/2018 an amount of Rs. 50,000/- was withdrawn from  his account but he had received  the massages of withdrawal  of an amount of Rs. 15,000/-. Complainant  has alleged that  he had given  an application  for  closing  of  account and ATM Card.  Complainant  has contended that  after submitting the application  for closing of account and  ATM Card  facility on  the same day i.e. on 19/07/2018 he again received   the message that  an amount of Rs. 24,000/- and Rs. 169/- was withdrawn  by swiping his debit card and  so he again approached  to the O.P.-Bank and enquired about the said withdrawal of amount but he was informed that  his account  and debit card  has been  freezed. Complainant  has alleged that  he  had not made any  transaction  and  loss was caused to him on  account of deficiency  in service  of the O.P.-Bank. Complainant  has alleged that  he lodged the complaint  with  Police Authority  and also with  the  Reserve Bank of India on 26/09/2018.  Complainant  has contended that  the O.P.-Bank had deposited the said amount in his account as ATM Fraud amount by marking the lien.  Complainant further  contended that  thereafter the O.P-Bank has taken out the said amount from his account on 30/06/2018. Complainant  has therefore, contended that  the loss was caused  to him due to deficiency  in service  on behalf of the O.P. –Bank.  Complainant  therefore, lodged  the complaint before the learned District Consumer Commission, Nagpur and prayed for return  of amount Rs. 74,169/- as well as amount of Rs. 2,00,000/- towards  mental agony  along with interest  and Rs. 25,000/- towards litigation  charges.

3.         After filing of the complaint due  notice was  issued on  the O.P.-Bank/appellant  and same was duly served. However, none appeared on behalf of the O.P.-bank and so complaint  proceeded exparte  against  the O.P.-Bank. 

4.         The  learned  District Consumer Commission, Nagpur  thereafter  went through the contents of the complaint, evidence affidavit  and documents  produced in support of the same.  The learned District Consumer Commission, Nagpur also went through  the written notes of argument  filed by the complainant and O.P.  The learned District Consumer Commission, Nagpur appreciated the oral argument  led  by the  complainant  and partly allowed the complaint   by passing  an order dated 19/10/2020 directing  the  O.P. to deposit  an amount of Rs. 74,169/- along with interest at the rate of 6% and compensation  of Rs. 10,000/- towards  mental and physical  harassment and  Rs. 10,000/- towards cost of litigation. Against  this order dated 19/10/2020 passed by the learned  District Consumer Commission, Nagpur the present  appellant  has come up in appeal.

5.         We have heard Mr. Ingole, learned advocate for the appellant as well as Mr. Mishrikotkar, learned advocate for the respondent. We have also carefully gone through  the documents  placed  on record as well as written notes of argument  filed by the appellant  and respondent.

6.         At the outset  it is submitted by  Mr. Ingole, learned advocate for the appellant  that  the learned District Consumer Commission, Nagpur has not properly  appreciated  the  oral and  documentary  evidence adduced  on record  and therefore reached  the conclusions  which  were erroneous in nature. On the other hand,  Mr. Mishrikotkar, learned advocate for the respondent.  has supported the findings given  by the learned District Consumer Commission, Nagpur. The foremost  contentions  advanced  by  Mr. Ingole, learned advocate for the appellant  is that  the learned District Consumer Commission, Nagpur  has not given due opportunity  of hearing  to the appellant –Bank. According to  Mr. Ingole, learned advocate for the appellant  no  proper  notice was  served  upon the appellant –Bank and the learned District Consumer Commission, Nagpur proceeded  to pass  an  order  during  the period  of Covid-19 Pandemic. Mr. Ingole, learned advocate for the appellant  has submitted that  due  opportunity  needs to be  granted to the appellant  to file written version on record and to adduce evidence. Mr. Mishrikotkar, learned advocate for the respondent  has strongly  countered  this contention and has submitted that   contention Mr. Ingole, learned advocate for the appellant  cannot be  accepted as due notice  was issued by  the learned District Consumer Commission, Nagpur and the same was also duly received on 30/01/2020. Further  it is contended by the learned advocate for the  respondent  that  due opportunity  was also given to the appellant  to file  written version  and matter was fixed  on 29/02/2020 but  the appellant  failed to remain present  on 02/03/2020 as well as subsequent  dates.  Mr. Mishrikotkar, learned advocate for the respondent  has drawn our attention to the fact that  not only  the appellant was  having  the knowledge about proceedings going on before the  learned District Consumer Commission, Nagpur but further  notice was  also duly  received by the office of the  appellant –Bank.

7.         We have also carefully  gone through  the documents  filed on record by the appellant –Bank as well as findings recorded  by the  learned District Consumer Commission, Nagpur. Bare perusal  of the impugned order  dated 19/10/2020 shows that  the learned District Consumer Commission, Nagpur has  recorded  the finding that  the notice  was duly  received  by the  O.P/appellant –Bank on 30/01/2020 and thereafter the matter was fixed for filing written  version  on 29/02/2020 but no written version  was filed  on record  by the  O.P./appellant  despite receipt of  notice.  Even thereafter the matter was fixed  in the month of March, August and September -2020 and  thereafter on 05/10/2020 order was passed to proceed exparte  against the O.P./appellant.

8.         If we go through  the order  dated 05/10/2020 passed by the learned District Consumer Commission, Nagpur itself  has recorded  the finding that  the O.P. failed  to appear  on 29/02/2020 and in March-2020 before Lockdown. In these  circumstances and facts on record  the contention of the learned advocate for the appellant  that  the appellant  was not aware  about the order passed  by the learned District Consumer Commission, Nagpur or that  due and proper  opportunity  was not  granted cannot be accepted and so is not tenable  in law.

9.         Coming  now to the merits   Mr. Ingole, learned advocate for the appellant  has contended  before us that  the appellant –Bank had not committed  any deficiency   in service  and the appellant –Bank had duly  lodged the complaint  of the complainant  with Digital Banking  Department  which is authorized  to investigate the fraud and said  authority  had found  that  these were  not the  fraudulent  transactions but this aspect was  not at all  considered by the learned District Consumer Commission, Nagpur.  Mr. Mishrikotkar, learned advocate for the respondent  has strongly rebutted  this contention and  has submitted  that the appellant –Bank had withdrawn  an amount from his account in arbitrarily manner on 30/09/2019 despite  the fact that  the complainant  had  not only  promptly lodged the  report  with the concerned  Police Station  but had also   complied with the  regulation of bank by lodging  the complaint.  Mr. Mishrikotkar, learned advocate for the respondent  has pointed out from the documents on record that  the  complainant  had also  lodged  the complaint to the Reserve Bank of India and Ombudsmen   but after  seven months  on 30/09/2019 the entry  was reversed and amount  of Rs. 74,169/- was debited  and letter was issued  to the complainant   that  the Competent  Authority   was rejected  his application. In order to support  his contention Mr. Mishrikotkar, learned advocate for the respondent  has also drawn our attention  specifically  to the  documents namely  copies of statement of account  and also  debited  entries. Further  Mr. Mishrikotkar, learned advocate for the respondent  has also drawn our attention  to the copy of report  lodged by  the complainant  with  Lakadganj Police Station  on 27/07/2018. Contents  of the complaint  lodged  with the Police Station  also reveals  entire facts the complainant  has clearly stated  that  on 19/07/2018  he had visited  the  branch of Union Bank of India and  informed that  an amount of Rs. 50,000/- had been withdrawn  from his account but  no message was received  on the same  date. He received other message that  an amount of Rs. 24,000/- has been withdrawn  on the same account.  At that time h was  informed  that  his account has been  frozen. Mr. Mishrikotkar, learned advocate for the respondent  has also drawn  our attention  to one more document namely  copy of letter addressed  to Reserve Bank of India on 23/08/2018.  In this letter  the complainant  has mentioned  specifically that  on 19/07/2018 amount  of Rs. 74,169/- had come to be withdrawn but  no action was taken  by the concerned Union Bank of India. Mr. Mishrikotkar, learned advocate for the  respondent  has also  drawn our attention  to one more letter dated 27/09/2019. Complainant  has also placed on record  one copy of letter  received from Union Bank of India dated 25/09/2019 by which  his application for refund of withdrawn  amount of Rs. 74,000/- came to be rejected. 

10.       If we go through  the order  passed by the learned District Consumer Commission, Nagpur. The learned District Consumer Commission, Nagpur has specifically  dealt with  this aspect  and has also  observed  that on 19/07/2018 amount of Rs. 50,000/- was debited  from the saving account of  the respondent /complainant  and Rs. 24,000/- were shows  to have been  debited by way of Debit Card from  Jamshedpur though  the complainant  had no connection  with Jamshedpur and had not withdrawn any amount.  The learned District Consumer Commission, Nagpur has also  observed  that  the complainant  had lodged the report  with  Lakadgang Police  Station  on the basis  of the same Crime No. 375/2018 also came to be registered  and thereafter   the complainant  also lodged the complaint on 23/08/2018 with Reserve Bank of India which  was then forwarded to the Lokpal.

11.       During the course of argument  Mr. Mishrikotkar, learned advocate for the respondent  has also vehemently  submitted before  us that  in the case of fraud  committed  by unknown  person  in connection  with the transaction  of bank there is zero liability  of the Consumer and Consumer cannot be held responsible  at all for such  frauds  or for any  such withdrawal when said withdrawal had  not taken  place at his behest.  In this connection Mr. Mishrikotkar, learned advocate for the respondent has specifically drawn our attention to Circular dated 06/07/2017 issued by the Reserve Bank of India and was addressed  to all Scheduled Banks and Clause No. 6(ii) of the said Circular reads as under,

 6.        A customer’s entitlement  to zero liability  shall arise where  the unauthorised transaction occurs in the following  events.

i.          Contributory fraud/negligence/deficiency on the part of the bank           (irrespective of whether or not the transaction is reported by the customer)

ii           Third party  breach  where the  deficiency  lies neither  with the bank nor with the customer but lies elsewhere in the system, and the customer  notifies the bank within  three working days  of receiving  the communication  from the bank regarding  the unauthorised transaction.

12.       It is thus very clear that the  liability  of the customer is zero liability  where the customer notifies the bank within  three working days and receiving  communication  from the bank regarding  unauthorised transaction. Here also  the respondent /complainant  had duly notified the appellant-Bank within three working days and so there was no liability  the customer/complainant  and the liability  lied  with the appellant –Bank.

13.       During further argument Mr. Mishrikotkar, learned advocate for the respondent  has also vehemently  submitted before us that the respondent /complainant  had also addressed the letter to the Branch Manager, Union Bank of India on 13/11/2019 requesting  for CCTV Footage of relevant dates namely  18/07/2018 and 19/07/2018 but no CCTV Footage was supplied by the appellant –Bank on the excuse that the CCTV Footage was not in their  possession which is quite unacceptable. In this respect  the  appellant has taken a plea that  without  having  ATM  and knowledge of pin number  no amount can be withdrawn  and merely because  CCTV Footage was not available  it does not mean that  amount  could not  be withdrawn  without  using  ATM Card and pin number. We find  that  no such material  has been placed by the appellant –Bank so as to support  or substantiate  this contentions. On the other hand the respondent /complainant  has himself placed on record  the copy  of letter dated 13/11/2019 by which  he had sought  CCTV Footage of the relevant  dates when the fraudulent transaction  took place. In our view it was necessary  for the appellant –Bank to provide the CCTV Footage to the complainant.  

14.       In the light of aforesaid  discussion we are unable to accept  the contentions advanced by the learned advocate for the appellant  that  the learned District Consumer Commission, Nagpur has passed  an impugned order without  application  of judicial  mind or that  the learned District Consumer Commission, Nagpur had not appreciated the facts in proper perspective. However, we find that   this is also  not fit case for remand. On the contrary  we feel  that  the learned District Consumer Commission, Nagpur has properly appreciated  the facts and has also  given  reasons which are cogent and  satisfactory. As a result we proceed to pass the following order.

ORDER

1.         Appeal is dismissed.

2.         No order as to costs.

3.         Copy of order be furnished to both of parties, free of cost.