KOTAK MAHINDRA BANK LTD vs Surinder Kumar Modi

BY this order, we propose to dispose the above noted cross revision petitions arising out of the order of the State Commission Punjab, Chandigarh dated 30.04.2010.

BRIEFLY put, the facts relevant for the disposal of the revision petitions are that Surinder Kumar Modi, complainant, was having a bank account with opposite party Kotak Mahindra Bank. He was holder of Gold Debit Card with facility of daily withdrawal and purchase limit of Rs.1.75 lac. International operation facility was also available on the card. On 05.08.2008 complainant went to Great Britain. On 25.08.2008 complainant used ATM of Lloyds T.S.B. at South Hall, London for withdrawal of money. The complainant after inserting the debit card, entered password to complete the transaction of withdrawal of money but the ATM failed to remit the money. Thus, the complainant cancelled the operation. He again tried to withdraw the money but card got struck in the ATM machine and no money was remitted. The complainant thus rushed to the Llyods Bank and told the officials regarding the above noted series of events and the concerned official advised him to get the card and funds blocked as the card may be hacked and used illegally by the miscreants. It is alleged by the complainant that he then called respondent no.3 Gulbir Singh, Senior Manager of the bank and gave instructions to block the card and funds immediately. Opposite Party no.3 told him that his card will be blocked immediately and no one will be able to withdraw the money. At 10.15 AM ( UK time), the complainant again called opposite party no.3 seeking confirmation of status of the card and opposite party no.3 assured him that instructions to block the card had been given and he would be sending e -mail as a cautionary step. Despite the assurance of opposite party no.3, the complainant visited the branch of Llyods T S B Bank and narrated the incident of 25.08.2008 to their officials, namely , Ms. Palvi and requested her to return the card. Ms. Palvi told him that there was no provision for returning the card. It was further alleged that on 27.08.2008, the complainant received SMS on his mobile phone that balance in his account was Rs.307/ - whereas balance in the account of the complainant on 25.08.2008 when his debit card was retained in the ATM was Rs.4,76,500/ -. According to the complainant, the failure of the opposite parties to block the operation of his card amounts to deficiency in service. Thus, the complaint.

THE opposite parties resisted the complaint. In the written statement, they admitted that complainant had a bank account with the opposite party and he was issued debit card with facility of daily withdrawal and purchase limit of Rs.1.75 lac with international transaction. It was pleaded that with every such card of high transaction limit, user manual is supplied to the customer. The opposite parties denied for want of knowledge that on 25.08.2008, the complainant used ATM card at ATM machine of Llyods T S B at South Hall, London or that said transactions failed and his card got struck in the machine. However, it was admitted that on 25.08.2008, the complainant called up opposite party no.3 Gulbir Singh Bindra, Manager of the opposite party bank Branch at Goraya. It was pleaded that on the said day, the complainant informed Ms. Arvind Kaur, an employee of the opposite party bank only about his card having retained in the ATM machine but did not make any request for blocking of his card. It was also alleged that Ms. Arvind Kaur suggested to the complainant to get his card blocked but the complainant insisted that his password was secured and blocking of the card would cause unnecessary harassment to him during his stay abroad. It was also alleged that complainant is an ex -bank officer and was very well aware of banking rules and regulations and he could have sent an e -mail to the bank giving instructions for blocking of his card but he did not do so. According to the opposite parties, on inquiry, it was revealed that ATM card of the respondent was used more than 20 times between 25.08.2008 to 27.08.2008 at different locations and, therefore, the claim of the complainant that his card got struck in the machine is false and that complainant had failed to provide ATM machine number in which his card was retained. It was also pleaded that complainant vide his letter dated 19.09.08 appreciated the efforts of the opposite party bank and the bank was not at fault. Thus the opposite parties prayed for dismissal of the complaint. The District Forum on consideration of the record and evidence, allowed the complaint and directed the opposite party bank to give credit of Rs.4,76,000/ - in the account of the complainant and also awarded Rs.15,000/ - as compensation as well as litigation expenses. It was also ordered that if the bank fail to pay the said amount within one month from the date of receipt of order, the amount shall carry 7% interest per annum.

BEING aggrieved of the order of the District Forum, the opposite party preferred First Appeal No. 128 of 2010. The complainant also filed cross appeal no. 231 of 2010 seeking enhancement of compensation. State Commission, however, dismissed both the appeals.

LEARNED counsel for the petitioner in RP No. 2860 of 2010 has assailed the impugned order of the State Commission alleging that State Commission has committed a grave error in holding that the complainant had given information about loss of card whereas information given was that the debit card was retained in the ATM. Learned counsel further contended that State Commission has failed to appreciate that the complainant despite of suggestion given by Ms. Arvind Kaur to block the card, requested not to block the card on the ground that without ATM card, the complainant may suffer difficulty during his trip abroad. Learned counsel further contended that that State Commission ignored that loss of card was required to be reported by calling the Phone Banking Number or Visa Global Assist Service Number and the bank upon intimation through such modes after verification of the card holder identity, was under obligation to block / deactivate the card. Learned counsel further submitted that the State Commission failed to appreciate that the instructions for blocking of the card are not accepted on phone number of the bank or by any officer of the bank because same can be misused and can leave the customer stranded and cause him difficulty if the card is wrongly blocked.

LEARNED counsel for the respondent complainant on the contrary has argued in support of the impugned orders. He has contended that both the foras below have returned a concurrent finding of fact by reasoned orders. Therefore, while exercising a limited power of revision under section 21 (b) of the Consumer Protection Act, 1986, this Commission is not supposed to re -appreciate the facts. He has argued that there is neither any jurisdictional error nor any material flaw in the impugned order which may call for interference in exercise of the revisional jurisdiction.

WE have considered the rival contentions and perused the record.

ON perusal of record, we find that in para 3 of the reply to the complaint as also the affidavit of Gulbir Singh, appellant no.3, submitted in evidence on behalf of the petitioner / bank and others, petitioners have admitted that on 25.08.2008, the complainant called Sh. Gulbir Singh Bindra of the petitioner bank and asked for telephone number of Ms. Arvind Kaur of Sales Team. It is also stated in the affidavit that the complainant, therefore, spoke to Arvind Kaur on telephone and informed that his ATM card has been retained in the ATM machine of Lloyds Bank. From this it is evident that on 25.08.2008, the intimation regarding the complainant having lost the ATM card due to retention in ATM of Llyods Bank was received by the officials of the bank. No doubt in the affidavit of Gulbir Singh, it is stated that al -though Ms. Arvind Kaur suggested the complainant to get the card blocked but the complainant himself suggested that password was secured and as such ATM card may not be blocked as it may cause harassment to him. This explanation is not believable, firstly, because, the affidavit of Ms. Arvind Kaur, to whom the complainant allegedly suggested not to block the card has not been filed and the version of Gulbir Singh in his affidavit is hearsay evidence. Secondly, if this explanation in the affidavit is true, there was no occasion on the part of the complainant to even inform the retention of card in ATM of Llyods Bank. Thus, finding of the foras below regarding information of loss having been given, cannot be faulted.

LEARNED State Commission while dismissing the appeal of the opposite parties have relied upon the terms and conditions Ex.C -17, particularly the instructions 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".

FROM the said instructions, it is clear that on receipt of information regarding loss / theft of the card by the card holder, the bank after adequate verification of the identity of the card holder shall hotlist the card and customer shall be liable for all charges incurred on the card till the intimation of loss. From the affidavit of Gulbir Singh, it is clear that intimation regarding loss of card was received by the officials of the bank. There is no evidence that after receipt of information of loss, the identity of complainant could not be verified. Therefore, in view of the above instructions, the complainant bank ought to have blocked the card which was not done. Thus, in our view, the foras below have rightly allowed the complaint and directed the opposite parties as recorded above. Thus, we do not find merit in RP No. 2860 of 2010. Revision petition is accordingly dismissed.

IN Revision Petition No. 3090 of 2010, complainant Surinder Kumar Modi has prayed for enhancement of the amount of the award. On perusal of record, and the judgments of the foras below, we are of the view that adequate compensation has been granted to the complainant Surinder Kumar Modi and we find no reason to enhance the compensation. Revision Petition No. 3090 of 2010 is accordingly dismissed.