Tamil Nadu

North Chennai

CC/117/2016

Bhushan Goyal - Complainant(s)

Versus

Aircel Limited Branch Manager - Opp.Party(s)

M/s.Shankar

25 Sep 2018

ORDER

 

                                                            Complaint presented on: 06.07.2016

                                                                Order pronounced on: 25.09.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd 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 25^th 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:

5^th 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

Date of complaint                                        : 22.07.2016

Counsel for Complainant                            : M/s.Shankar & Lavanya Shankar

Counsel for  1^st & 2^nd Opposite Parties          : Mr.J.Ravikumar

 

Counsel for 3^rd 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 2^nd opposite party  with connectivity number +91 98410 69000 since 2001 and  a customer  of the 3^rd 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 3^rd 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 2^nd 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 1^st & 2^nd  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 1^st 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 3^rd 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 & 2^nd 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 2^nd op with connectivity number +91 98410 69000 since the year 2001 and he is also a Customer of the 3^rd 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 2^nd opposite party.  Then, since the problem continued, on the advice of 2^nd 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 3^rd 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 2^nd opposite party, and the photographs showing the incident  is Ex.A7 series.  Notice and E-mail addressed    to the 2^nd 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 3^rd  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 3^rd opposite party in this complaint. Therefore the complaint against 3^rd 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 1^st & 2^nd 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 3^rd opposite party is to be dismissed as the relief against 3^rd 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 3^rd opposite party is dismissed.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25^th  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
Ex.A2 dated 24.02.2016		Copy of Complaint lodged by the complainant with the Indian Bank
Ex.A3 dated 24.02.2016		Copy of Complainant’s Bank Account Statement
Ex.A4 dated 24.02.2016 Series		Copy of Beneficiary details shared by the 3rd opposite party
Ex.A5 dated 24.02.2016		Copy of Complaint filed before the Commissioner of Police, Chennai
Ex.A6 dated 25.02.2016		Copy of Mail addressed by the 2nd opposite party to the complainant
Ex.A7 dated NIL  Series		Copy of Photographs reflecting issuance of duplicate SIM card by the 1st opposite party
Ex.A8 dated 26.02.2016		Copy of  Notice issued by the complainant to the 2nd opposite party
Ex.A9 dated 26.02.2016		Copy of  E-mail addressed by the complainant to the 2nd opposite party
Ex.A10 dated NIL		Copy of Acknowledgement Card
Ex.A11 dated 04.04.2016		Copy of Order passed by Hon’ble Madras High Court in Crl.O.P.7116 of 2016.

LIST OF DOCUMENTS FILED BY THE 1^st & 2^nd OPPOSITE PARTIES :

 

Ex.B1 dated NIL	The copy of privacy policy of the Indian Bank net banking system and do’s and don’ts
Ex.B2 dated NIL	Disclaimer notice of Indian Bank net banking system
Ex.B3 dated NIL	Copy of Internet Banking login page of Indian Bank
Ex.B4 dated NIL	Photographs taken from video footage taken on 23.02.2016 in the store of the 1st opposite party
Ex.B5 dated NIL	Material Objection – CD of video footage

 

 

 

 

 

MEMBER – I                                                               PRESIDENT