Bhushan Goyal filed a consumer case on 25 Sep 2018 against Aircel Limited Branch Manager in the North Chennai Consumer Court. The case no is CC/117/2016 and the judgment uploaded on 10 Nov 2018.
Complaint presented on: 06.07.2016
Order pronounced on: 25.09.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL - PRESIDENT
THIRU.D. BABU VARADHARAJAN B.Sc., B.L., : MEMBER – I
TUESDAY THE 25th DAY OF SEPTEMBER 2018
C.C.NO.117/2016
Bhushan Goyal,
G-7, Wellingdon Estate,
53, Ethiraj Salai, Egmore,
Chennai – 600 105.
….. Complainant
..Vs..
1. M/s. Aircel Limited,
Rep. by its Branch Manager,
Ayanavaram, Chennai – 600 023.
2.M/s. Aircel Limited,
Rep by its Managing Director,
Having its Registered Office at:
5th Floor, Spencer Plaza,
769, Anna Salai, Chennai – 600 002.
3. Indian Bank,
Rep by its Branch Manager,
Ethiraj Salai Branch, Chennai – 600 008.
| .....Opposite Parties
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Date of complaint : 22.07.2016
Counsel for Complainant : M/s.Shankar & Lavanya Shankar
Counsel for 1st & 2nd Opposite Parties : Mr.J.Ravikumar
Counsel for 3rd opposite party : Ex-parte (05.10.2016)
O R D E R
BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL
This complaint is filed by the complainant to direct the opposite parties to pay a sum of Rs.7,50,085/- towards loss suffered and also a sum of Rs.6,00,000/- towards compensation for mental agony and cost of the complaint u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
The complainant is holding a valid sim card issued by the 2nd opposite party with connectivity number +91 98410 69000 since 2001 and a customer of the 3rd opposite party holding a Current A/C.no.859708801 in the name of “M/S.Chanda Softy Ice Creams”. On 23.02.2016 at about 4.00 p.m. complainant’s mobile lost its connectivity, and when he finds no improvement, through his employee he registered a complaint through e-mail, on 24.02.2016 it is replied as the sim card is quite active but the problem still continued a letter in writing for issuance of new SIM card. After receiving the new SIM Card his mobile phone connectivity was restored, he discovered the amount of Rs.7,50,085/-has been fraudulently transferred from his bank account to an unknown person’s account. He also came to know from the 3rd opposite party that the transaction was effected through “Net Banking”, OTP was generated and sent to his registered mobile number , the funds were transferred only after the generated opposite party was used.
2. A complaint is also registered before the Commissioner of police and then the directions from the Hon’ble High Court to register FIR was also obtained. An unknown person impersonated the complainant and obtained a duplicate SIM card stating that the original Sim Card was misplaced. Registered notice was issued to opposite parties 1 & 2. The 2nd opposite party had never served any communication in writing upon him about issuance of duplicate Sim Card until the unlawful and un-authorized transfer had been successfully undertaken. The actions of 1 & 2 opposite parties clearly constitute unfair trade practice as well as deficiency of service .
3.WRITTEN VERSION OF THE 1st & 2nd OPPOSITE PARTIES IN BRIEF:
The opposite parties state that the dispute is between a subscriber and telecom service provider shall be dealt under the Indian Telegraph Act. The complainant admittedly raises serious allegation of fraud, forgery, impersonation and misappropriation of funds against some unknown person and the same cannot be adjudicated in summary procedure under the consumer protection act. The complainant has suppressed the fact that the Secret user I.D., Login password, and transaction password of his business revealed by him to his accountant and another employee to operate his business account. The complainant has compromised the safety of his bank account by the reckless and negligent act of disclosing three vital information about his account has led to misappropriation of funds from his accounts. The complainant has none to blame except himself for the loss suffered by him. The impersonator produced Forged pan card, driving Licence of the complainant and obtained a duplicate sim card from the 1st opposite party. When it is a known factor of forgery and impersonation by unknown fraudster, the question of negligence and deficiency of the opposite parties will not arise. The produced documents by the fraudster appeared to be genuine, and it cannot be deducted by the naked eye inspection. The complainant has suppressed the fact that he has shared the confidential bank operation details namely log in i.d., log in and transaction password contrary to the bank advisory. The fraudster should be a known person acquainted with the complainant and also having access to his personal accounts. The complainant has to trace the recipient’s account from the receiving to find out the culprit. The illegal transaction of Rs.7,50,085/-from the complainant’s bank account is direct result of the complainant’s recklessness and therefore the complainant is disentitled to get any relief from these opposite parties and the complainant is to be dismissed.
4. The 3rd opposite party called absent and remained he was set ex-parte on 05.10.2016. The complainant filed Ex.A1 to Ex.A11 marked documents and 1 & 2nd opposite parties filed Ex.B1 to Ex.B5 with CD.
5. POINTS FOR CONSIDERATION:
1. Whether the complaint is maintainable before this forum?
2. If so, is there any deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to any relief? If so to what extent?
6. POINT NO :1&2
The complainant was holding a sim card issued by the 2nd op with connectivity number +91 98410 69000 since the year 2001 and he is also a Customer of the 3rd opposite party having a Current A/C No. 859708801 On 23.02.16 his mobile phone lost its connectivity and the complainant was under the impression that it would be resolved during the course of the day. Since, there is no improvement in the network connectivity, through e-mail and he registered a complaint on 24.02.16 in Ex.A1 to 2nd opposite party. Then, since the problem continued, on the advice of 2nd opposite party, the complainant addressed a letter requesting for a fresh sim card and the same was personally delivered to him. When the connectivity to his mobile got restored, the complainant was able to find out that an amount of Rs.7,50,085/- from his account was transferred to an unknown person’s account on 23.02.16 and 24.02.16.
7. A written complaint was given by the complainant in his letter under Ex.A2 to 3rd opposite party . Statement of accounts and beneficiary details are in Ex. A3 & A4. A Complaint was filed before the Commissioner of police in Ex.A5. The complainant alleges that his bank account had been accessed by an unauthorized person who had siphoned off his money through OTP number obtained through his Sim card. Therefore this complaint is filed against all the three opposite parties and opposite parties 1 & 2 did not verify the authentication properly before issuing replacement of Sim Card and there is deficiency in service on their part is pointed out by the complainant.
8. The opposite parties 1 & 2 would submit that the staff of their company verified the identity card produced by the third party or Fraudster who committed mischief and he did not find any reason to suspect the same. When forged and fabricated identity card is produced , it appeared to be geniune and the same cannot be detected in normal course of verification and also by naked eye inspection,, hence no negligence can be imputed against the opposite parties 1 & 2 and the petition is not maintainable before the consumer forum. Since, it involves forgery and impersonation of unknown person and the complainant had disclosed the secret I.D and two passwords used for online banking transactions, it ended in money getting transferred to a third party.
9. Whereas it is argued on the side of the complainant that on obtaining the duplicate sim card , that third party had obtained OTP and illegally transferred the money from the bank account. These all happened due to the negligent act of opposite parties 1 & 2 and without proper verification they have facilitated third party for the untoward incident therefore, they are liable for their negligent act and also for deficiency in service and prays to allow the complaint as prayed for.
10. Under Ex.A6 is the reply e-mail received from the 2nd opposite party, and the photographs showing the incident is Ex.A7 series. Notice and E-mail addressed to the 2nd opposite party by the complainant and the acknowledgement are Ex.A8 to A10. Order passed by the Hon’ble High Court to register the complaint is Ex.A11.
11. The first and the second opposite parties contends that the complainant has suppressed the material facts about the disclosure of the secret user I.D., and two passwords used for on line booking to third parties. When forged documents appeared to be genuine , the opposite parties 1 & 2 cannot be blamed for Negligence. The consumer complaint is not maintainable when the matter involves forgery, fabrication of documents, and impersonation.
12. The complaint is not filed against the alleged fraud, forgery and impersonation and misappropriation happened, it is being filed only on account of the negligence and reckless activities of the opposite parties 1 & 2, which led to the above said untoward incident by an unknown person. The dispute may be between subscriber and service provider, but the dispute is regarding the alleged deficiency in service, which is well within the scope of the consumer act. Therefore the complaint is maintainable and accordingly point No:1 is answered.
13. The private policy of the Indian Bank net banking system which contains Do’s and don’ts is filed’ and Disclaimer notice of Indian Bank and Internet banking login page of Indian bank, Photographs on video footage of the day of incident and CD Video Footage have been filed on behalf of opposite parties 1 & 2 and marked as Ex.B1 to B5.
14. Admittedly, an unknown person only played a role in obtaining a Duplicate SIM Card with connectivity number +91 98410 69000 of the complainant’s on 23.03.16, and transferred the money from the bank account belonging to the Complainant to a third party’s account. The reason putforth by the opposite parties 1 & 2 are that the complainant had disclosed his secret ID’s and Pass words to third party and has not disclosed the same in the complaint. But, the opposite parties have not substantiated the same with any proof. Ex.B1,B2 and B3 reveals the do’s and don’ts of Net banking , and regarding Disclaimer notice and security caution and notes, it only indicates that due diligence have to be followed by the customers and it is only based on the guiding principles. But here in this case, the particular allegation of disclosure of the details of e-banking by the complainant to third parties have not been substantiated with any proof or incident by the opposite parties . Bare allegation against the complainant will only be treated as Baseless allegation and cannot be considered as proved.
15. It is contended by the opposite parties that the forged documents appears to be genuine were produced before the opposite parties. Fraudsters will normally prepare and provide the documents which appears to be genuine. But, the opposite party’s have to be alert in verifying the I.D and other particulars and it is their bound and duty to verify the same especially during the report of loss of Sim card and new Sim card is replaced. It is also an admitted fact that totally an amount of Rs.7,50,085/- was fraudulently transferred from the complainant’s bank account bearing no.859708801 on 23.02.16 and on 24.02.16, the day when the mobile connectivity of the complainant was lost. It is also admitted by opposite parties that they have issued a duplicate sim card to a person on production of the forged I.D. which appeared to be genuine. But the opposite parties have also failed to produce the cards submitted by the third party. There is no reasons also stated by the opposite parties for not producing the same before this forum.
16. As argued by the learned counsel for complainant , the very feature of linking the bank account to the customers mobile number is to avoid unauthorized transfer of funds online by fraudsters and to have a full proof security system, since the fraudsters will not have any means to hack the customer’s mobile phone to which the OTP is sent. Moreover, they have the opportunity of utilizing the sim card to create a new password by utilizing the latest developed technologies and logging in method and create a new password also, thereby they receive the OTP. Even if there is a forged I.D. card and other I.D’s like pan card etc., there will a mismatch of the photograph or else if that is impersonated, the physical semblance of the impersonator would vary with the real person.
17. Photographs taken from Video footage on 23.2.2016 in the store of the opposite party and the material object , the C.D reflects the third party/unknown person entering into the opposite party’s store and showing some papers does not preclude the opposite parties from producing those papers or documents . However , the opposite parties have failed to produce the papers or documents received by them thereby committed an act of gross negligence in having issued a duplicate SIM card to an unknown person without omitting up properly.
18. Therefore this forum is of the view that opposite parties 1 & 2 have committed an act of negligence in issuing a duplicate Sim card without proper verification to an unknown person which resulted in the illegal transfer of Rs.7,50,085/- from the bank account belonging to the complainant. The loss suffered by the complainant could have been avoided if the ops had taken full care and due diligence. Therefore opposite parties 1 & 2 have committed deficiency in service and liable to be held jointly and severally.
19. So far as 3rd opposite party is concerned, Bank represented by its Manager was set ex-parte. Apart from that, the complainant in their proof affidavit, have stated that he is not seeking any relief against the 3rd opposite party in this complaint. Therefore the complaint against 3rd opposite party is liable to be dismissed as the relief is given up by the complainant.
20. POINT NO:3
As discussed in point No:1 the complainant is maintainable before this Forum and as discussed in point no:2 the deficiency in service is proved against opposite parties 1 & 2, the 1st & 2nd opposite parties are jointly and severally held liable for the gross negligence and deficiency in service and to make good the loss of Rs.7,50,085/- with reasonable interest and it is fit to order Rs. 1,00,000/- for the Hardship suffered by the complainant and for mental agony besides the cost of Rs.5,000/- and the complaint against 3rd opposite party is to be dismissed as the relief against 3rd opposite party is given up by the complainant.
In the result the Complaint is partly allowed. The Opposite parties 1 & 2 jointly and severally are ordered to pay an amount of Rs.7,50,085/- (Rupees seven lakh fifty thousand and eighty five only) with 9% interest from 23.02.2016 until payment to make good the loss and Rs.1,00,000/-(Rupees one lakh) for mental agony and hardship caused to the complainant and to pay costs of Rs.5,000/- (Rupees five thousand only) The complaint in respect of the 3rd opposite party is dismissed.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25th day of September 2018.
MEMBER – I PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 24.02.2016 | Copy of E-mail addressed by the complainant to the 2nd opposite party
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Ex.A2 dated 24.02.2016 | Copy of Complaint lodged by the complainant with the Indian Bank
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Ex.A3 dated 24.02.2016 | Copy of Complainant’s Bank Account Statement
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Ex.A4 dated 24.02.2016 Series | Copy of Beneficiary details shared by the 3rd opposite party
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Ex.A5 dated 24.02.2016 | Copy of Complaint filed before the Commissioner of Police, Chennai
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Ex.A6 dated 25.02.2016 | Copy of Mail addressed by the 2nd opposite party to the complainant
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Ex.A7 dated NIL Series | Copy of Photographs reflecting issuance of duplicate SIM card by the 1st opposite party
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Ex.A8 dated 26.02.2016 | Copy of Notice issued by the complainant to the 2nd opposite party
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Ex.A9 dated 26.02.2016 | Copy of E-mail addressed by the complainant to the 2nd opposite party
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Ex.A10 dated NIL | Copy of Acknowledgement Card
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Ex.A11 dated 04.04.2016 | Copy of Order passed by Hon’ble Madras High Court in Crl.O.P.7116 of 2016.
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LIST OF DOCUMENTS FILED BY THE 1st & 2nd OPPOSITE PARTIES :
Ex.B1 dated NIL | The copy of privacy policy of the Indian Bank net banking system and do’s and don’ts
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Ex.B2 dated NIL | Disclaimer notice of Indian Bank net banking system
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Ex.B3 dated NIL | Copy of Internet Banking login page of Indian Bank
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Ex.B4 dated NIL | Photographs taken from video footage taken on 23.02.2016 in the store of the 1st opposite party
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Ex.B5 dated NIL | Material Objection – CD of video footage |
MEMBER – I PRESIDENT
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