Tamil Nadu

South Chennai

CC/176/2013

J.Yesuadiyan - Complainant(s)

Versus

AIrtel Nodal Officer, - Opp.Party(s)

A.Gouthaman

02 Feb 2022

ORDER

                                                                                Date of Complaint Filed: 20.12.2012

                                                                                                                                            Date of Reservation     : 04.01.2022

                                                                                                                                            Date of Order               : 02.02.2022

                                                                     

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

Present:    Thiru. R.V.R. Deenadayalan, B.A., B.L.           : President

                  Thiru. T. Vinodh Kumar, B.A., B.L.                  : Member

 

CONSUMER COMPLAINT No.176/2013

WEDNESDAY, THE 2^nd DAY OF FEBRUARY 2022

 

J.Yesuadiyan,

S/o. John Nagaiyan,

No.237, 2^nd Floor,

Gospel Church Street,

Kadapery, GST Road,

West Tambaram,

Chennai – 600 045.                                                                                                                     .. Complainant                                              

..Versus..

 

1.Airtel Nodal Officer,

   Bharathi Airtel Ltd.,

   (Post Paid Mobile),

   Oceanic Towers,

   6^th Floor, No.101,

   Santhome High Road,

   Chennai – 600 028.

 

2.The Branch Manager,

   ICICI Bank,

   No.1, Cenotaph Road,

   Teynampet,

   Chennai – 600 018.                                                                                                                .. Opposite parties

******

Counsel for the complainant           : M/s. A.Gouthaman

Counsel for the 1^st Opposite party   : M/s. Iyer & Thomas

Counsel for the 2^nd Opposite party   : M/s. Sai Krishnan Associates

On perusal of records and after having heard the oral arguments of Complainant and 2^nd Opposite party and having treated the written arguments of 1^st Opposite party  as oral arguments,  we delivered the following:

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A.,B.L.

1.   The complainant has filed this complaint as against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.4,89,000/- with accrued interest                               at the rate of 9% from 07.09.2012 to till the date of filing of this petition and to pay a sum of Rs.5,00,000/- towards deficiency in service and mental agony along with cost of this complaint.

2.     The complainant submitted his Proof Affidavit and written argument.  On the side of the complainant, documents Ex.A1 to Ex.A15 were marked.   The 1^st opposite party has submitted his version, proof affidavit and written Arguments and on the side of the 1^st Opposite party documents Ex.B2 to Ex.B3 were marked. The 2^nd Opposite party has submitted his version, proof affidavit and written Arguments and on the side of the 2^nd  Opposite party document Ex.B1 was marked.

3.The averments of the complaint in brief are as follows:-

        The complainant is having Saving Bank A/c No.00010580724 with the second opposite party, ICICI Bank. The complainant has deposited a huge sum in the above account for her sister marriage. The complainant is having Airtel Post Paid connection and his mobile Number is 9840958927, the Sim Card Number is 9914002120222961279. The complainant never made any request to the first opposite party to deactivate his mobile phone connection. While so, on 06.09.2012 the complainant have received a message at 7.54 p.m stating as follows “ Namasthe, Thank you for calling us. The reference No. for your Airtel mobile is 45766094, registered on 06.09.2012 / 20:09, we will update you by 07.09.2012, 16:00:00. To get status your reference number, text  SR (Sr.number) to 121 “.  Again on the same day at 10.05 p.m complainant has received another message as follows” Namasthe. Thank you for calling us. Hope the concern related to your Airtel Mobile has been resolved to your satisfaction. Your reference No. is F1117459020, registered on 06-Sep-2012 22:09.

4.     The complainant again received  a message on 07.09.2012 at 4.25 a.m as “ Namasthe. Thank you for calling us. The Reference Number for your Airtel Mobile No. is 45769323, Registered on 07-sep-2012 04:09. We will update you by 07-sep-2012, 16:45:08. To get status of your reference Number text SR. (Sr.number) to 121. “Again on the same day at 07:01 a.m another message was received as “request ID for changing your mobile SIM Number from 8991400212022961279 to 89914002212028538253F is 81432153 you will get conformation SMS once it is completed”.

5.     After receiving the above messages complainant’s mobile SIM Card was got deactivated. Immediately complainant enquired with the first opposite party customer care and it was informed that the above message were fake and asked the complainant to get a new SIM Card from the nearby AIRTEL store to activate his Mobile number. During the deactivation time the unknown person, who activated his SIM number through the complainant’s mobile number had made twelve fraudulent on line transactions from complainant’s ICICI Bank Account and thefted a total sum of Rs.4,89,000/- to different four accounts across the State. Complainant’s mobile number was misused to add the unknown payees in the complainant’s ICICI online Banking to send money and complainants SIM was deactivated not to receive the bank balance message to the complainants mobile number while transferring the money to the unknown payees.

6.     The above said incident came to his knowledge only when he received a call from the second opposite party customer care person regarding the fraudulent on line transaction after he purchased a new SIM from the first opposite party and activated his mobile number. Complainant lodged a complaint on 10.09.2012 to the Chennai Police Commissioner in this regard. Both the opposite parties are failed in their respective responsibility to safeguard the interest of the Consumers. Hence this complaint is filed.

7.      Written Version of Opposite Party No.1 in Brief:

        It is submitted that this opposite party deactivated the complainant SIM Card only after getting prior request from the complainant. it is the normal and useful procedure followed by all the network service provider that’s without prior requests from the customers, the SIM Card will not be deactivated and the same has been adopted and followed by the first opposite party. The first opposite party came to know about the fraudulent transactions only after the complainant has made some enquiry with this opposite party. The SIM Card swap was done by some unknown person by hacking the complainant’s Bank Account. The complainant has given all his particulars including mobile number, name and address of the mobile number and other related particulars with the second opposite party. The hackers while hacking the bank account of the complainant, they would be able to access all the particulars. By getting the same, the hacker has furnished all the necessary details of the complainant for the deactivation of the SIM Card and only after verifying the same, the first opposite party has initiated the process of deactivation. The main reason for the deactivation of SIM Cards by the hackers is only to prevent Net Banking SMS alerts while transacting the money. The opposite party has done everything with due care and negligence. Hence it is requested to dismiss the complaint as against the first opposite party.

8.        Written Version of Opposite Party No.2 in Brief:     

        It is submitted that the complainant holding a savings Bank Account No. 000101580724 in ICICI Bank, Cenotaph Road Branch, Chennai and he has updated his KYC details with the Branch at the time of opening his savings bank account. The concept of KYC details provided by the customers of the bank is to alert them or contact them whenever necessary. As per the allegations made in the complaint clearly established the fact that due to the negligence of the first opposite party the complainant had suffered a loss of Rs.4,89,000/-. The second opposite party states that whenever an online transaction takes place or during a withdrawal of cash in the ATM the customers will be alerted of the transaction by way of SMS alerts. Further on line transaction can be performed only after the user ID and Password is entered in the on line portal of this Bank. In the similar way all the transaction made in the concerned SB Account of the complainant and the same was communicated via SMS alert to the registered mobile number provided by the complainant. The second opposite party cannot be made liable for any fraud or negligence committed by the first opposite party. Hence it is requested to dismiss the complaint.

9.       The Points for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complaint is entitled to get reliefs as claimed in the complaint?

3.To what relief, the complaint is entitled to?

10.      Point No.1

          On perusal of entire records it is found some culprit dishonestly collect the complainant’s mobile phone particulars as well as his ICICI Bank SB Account particulars. By misusing the above particulars the said unknown culprit had made 12 fraudulent on line transactions from the complainant’s ICICI SB Account and taken  a sum of Rs.4,89,000/- through online transaction. The complainant had lodged a complaint to the Commissioner of Police, Chennai as well as to the opposite parties concerned.

11.    The case of the first opposite party is the SIM card swap was done by some unknown person by hacking the complaint’s Bank Account. Since the unknown person has furnished all the necessary details of the complainant’s for the deactivation of the SIM Card and only after verifying the same, the first opposite party has initiated the process of deactivation. Therefore the first opposite party shifted his burden to the second opposite party.

12.     The second opposite party submitted due to the negligence of the first opposite party the complainant had suffered a loss of Rs.4,89,000/-. Further it is stated whenever an online transaction takes place or during a withdrawal of cash in the ATM, the customers will be alerted to the transaction by way of SMS alerts.  Therefore,  it is stated that  the  second opposite party cannot be made liable for any fraud or negligence committed by the service provider that is the opposite party.

13.       Therefore, both the opposite parties were made allegations against each other. But the affected party is the complainant herein. Complainant is the consumer of the first opposite party as well as the second opposite party. It is the duty of the opposite parties shall provide adequate safeguards to the complainant. But in this case both opposite parties are failed to provide security to the complainant since because of their failure to safeguard the interest of the consumer / complainant, he sustained a loss of Rs.4,89,000/- on 07.09.2012. Therefore, we found both opposite parties are committed deficiency in service on their respective parts. Accordingly Point No.1 is answered.

14.      Point Nos. 2 & 3

        We have discussed and decided that the opposite parties have committed deficiency in service on their part. Therefore, they are liable to pay a sum of Rs.4,89,000/- to the complainant along with interest @ 9 %

per annum from 07.09.2012 to  till the date of this order. Apart from that they are also liable to pay a sum of Rs.2,00,000/- to the complainant towards deficiency in service and the mental agony caused to the complainant with cost of Rs.10,000/-. Accordingly point Nos. 2 & 3 are answered.

         In the result this complaint is allowed in part. Both the opposite parties are directed to pay a sum of Rs.4,89,000/-(Rupees four lakhs eighty nine thousand only) with interest @ 9% per annum  from 07.09.2012 to till the date of this order. Further, it is directed both the opposite parties shall pay a sum of Rs.2,00,000/-(Rupees two lakhs only) towards deficiency in service and mental agony caused to the complainant and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses. Both opposite parties shall pay the above amount jointly and severally within 3 months from the date of this order, failing which the complainant is entitled to recover the above accrued amounts along with interest @ 9 % per annum from the date of this order to till the date of realisation.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on this  the  02^nd day of February  2022.

 

T.VINODHKUMAR                                            R.V.R.DEENADAYALAN                                                                              

      MEMBER                                                            PRESIDENT

 

List of documents filed on the side of the complainant:

 

Ex.A1	07.09.2012	Receipt of ATM withdrawals
Ex.A2	08.09.2012	Complainant to the 2nd Opposite party
Ex.A3	09.09.2012	e-mail sent by the complainant to the 1st opposite party
Ex.A4	10.09.2012	e-mail forwarded by the complainant to the 2nd opposite party
Ex.A5	10.09.2012	e-mail sent by the 2nd opposite party to the complainant
Ex.A6	10.09.2012	Complaint given by the complainant to the Commissioner of Police, Chennai
Ex.A7	10.09.2012	C.S.R given by the Commissioner of Police, Chennai
Ex.A8	12.09.2012	e-mail sent by the complainant to the 1st opposite party
Ex.A9	12.09.2012	e-mail sent by the complainant to the 1st opposite party
Ex.A10	13.09.2012	e-mail sent by the complainant to the 1st opposite party
Ex.A11	13.09.2012	e-mail sent by the complainant to the 1st opposite party
Ex.A12	18.09.2012	Statement of account of the complainant
Ex.A13	20.10.2012	Particulars of the amount transferred to unknown person from the complainant’s account
Ex.A14	25.11.2012	Legal Notice issued by the complainant to the opposite parties
Ex.A15	27.11.2012	Acknowledgment cards

List of documents filed on the side of the 1^st Opposite party:

 

Ex.B2	12.09.2012	Copy of the E-mail sent by the 1st Opposite Party to the Complainant
Ex.B3	-	Copy of the News Paper Reports

 

List of documents filed on the side of the 2^nd Opposite party:

 

Ex.B1

19.09.2007

ICICI Bank Statement

 

 

T.VINODHKUMAR                                            R.V.R.DEENADAYALAN                                                                              

      MEMBER                                                         PRESIDENT