Per Mr. B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he got Salary (Saving) Account No.186010100031781 with the O.P.No.1/Bank. He was not receiving monthly email statement as his registered Email ID was wrong. There was correspondence with the O.P.No.1/Bank for correction of registered Email ID. On 1st January, 2013, he received email from the Customer Care of the O.P.No.1/Bank asking various details for updating his banking ID. The complainant supplied all the details. On 7th January, 2013, the complainant deposited cheque for Rs.1 Lakh with the O.P.No.1/Bank in his account. The complainant deposited several cheques in December-2012 with the O.P.No.1/Bank. The complainant found that amount of Rs.14,00,900/- was withdrawn from his saving account by 22 internet transfers effected on 8th and 9th January, 2013. These transfers were effected to 12 different accounts out of which 10 account are with Axis Bank only. On 10th January, 2013, the complainant contacted Branch Manger of the O.P.No.1/Bank and reported the matter to him. He submitted written complaint to Head Office of the O.P.No.1/Bank on 11th January, 2013. He also submitted written complaint to Cyber Crime, Thane and Vishnu Nagar Police Station. F.I.R. was registered on 13th January, 2013. The O.P.No.1/Bank failed to correct Email ID therefore fraud has been committed. The complainant is entitled to withdraw maximum amount of Rs.50,000/- per day through internet transaction. However, it is surprising that the O.P.No.1/Bank allowed to withdraw excess amount. Therefore, the O.P.No.1/Bank is negligent. The O.P.No.1/Bank also failed to take adequate security measures.
2) The complainant is also customer of O.P.No.2/Reliance Communication Limited having Mobile No.9323074811. This number was registered with the O.P.No.1. The mobile of the complainant suddenly got deactivated on 8th January, 2013 therefore the complainant visited Swastik Intercom, Dombivali, franchisee of the O.P.No.1, on the same evening. The complainant was advised to change SIM Card, which will be activated within three hours but it was not activated. The same SIM Card was activated by someone in Hyderabad, due to negligence of the O.P.No.2. The complainant approached Banking Ombudsman. The Ombudsman directed the O.P.No.1 to pay Rs.1,40,000/- and Indusind Bank should pay Rs.2 Lakhs to the complainant. Thereafter, legal notice was issued to the opponents and filed this complaint for recovery of Rs.14,00,900/- from the opponents with interest at the rate of 15% per annum. He has also claimed damages of Rs.3 Lakhs for mental harassment and cost of Rs.1 Lakh.
3) The O.P.No.1 appeared and filed written statement. It is submitted that the claim is exceeding the pecuniary jurisdiction of this Forum therefore this Forum has no jurisdiction to entertain this complaint. It is admitted that the complainant is holding savings account with the O.P.No.1 at Khar(West) Branch. The complainant informed the fraudulent transaction by letter dated 11th January, 2013. The complainant responded anonymous mail for updating the information about the internet banking. The complainant disclosed all the confidential customer information to the said anonymous mail which lead to the aforesaid fraudulent transaction. The mobile of the complainant was also deactivated. The complainant purchased new mobile handset in exchange of his old handset and all the data in old mobile handset was transferred to the new mobile handset. The complainant has not ensured that all the data has been transferred to new mobile handset and deleted from the old handset. Mr.Deshmukh, Branch Manger of the O.P.No.1 Khar Branch advised the complainant immediately to collect the old SIM and ensure that all data in old mobile handset has been deleted. When the complainant reached Swastik Telecom, he was unable to produce the old handset by saying that his nephew has taken the old handset to Surat(Gujarat). On the next day, the employee of Swastik Telecom informed the complainant that his SIM is already activated at Hyderabad on 8th January, 2013 by unknown person. The attitude of the complainant was casual therefore the amount was fraudulently withdrawn. The main culprit is Swastik Telecom as fraud took place on the basis of the data in old mobile handset. The complainant has not changed his Internet Banking Login ID or his Password. The complainant has already approached the Banking Ombudsman and the Banking Ombudsman directed the O.P.No.1 to pay Rs.1,40,000/- to the complainant. The appeal preferred by the complainant was dismissed. The fraudulent transaction took place as confidential information was disclosed by the complainant himself. The O.P.No.1 provided all the information to the police investigation machinery and Cyber Crime Cell. The beneficiaries had accounts with ICICI Bank and the Indusind Bank. This O.P.No.1/Bank tried to recover funds from those banks but the amount was already withdrawn by the beneficiaries. All the other allegations are denied. As there is fraudulent transaction, this Forum should not entertain the complaint. Hence, the complaint is liable to be dismissed with cost.
4) The O.P.No.2 remained absent though duly therefore the matter is proceeded exparte against the O.P.No.2
5) After hearing both the parties and after going through the record, following points arise for our consideration
POINTS
Sr. No. | Points | Findings |
1) | Whether there is deficiency in service ? | No |
2) | Whether the complainant is entitled for the relief as prayed ? | No |
3) | What Order ? | As per final order |
REASONS
6) As to Point No.1 and 2 :- There is no dispute that the complainant is having salary/saving account with the O.P.No.1/Bank. According to the complainant, he received mail from Customer Care of the O.P.No.1 asking various details and he supplied all his details. According to the O.P.No.1 those details were not called by the bank. As those details were disclosed to anonymous persons, the amount was withdrawn fraudulently. There were 22 internet transfers to 12 different accounts. Thus, there are 12 different beneficiaries. It is necessary to make enquiry who called the confidential information and to whom the complainant supplied his confidential details. Detailed investigation is necessary to find out who called the confidential information and who are the 12 different beneficiaries. According to the O.P.No.1, enquiry was made but the amount was already withdrawn therefore amount could not be recovered from the accounts of 12 beneficiaries. Those beneficiaries are not before the Forum. It is necessary to make enquiry about those 12 different beneficiaries. The police complaint is already lodged. There is nothing on record to show the progress of the police investigation. Admittedly, the complainant disclosed the confidential information therefore the amount was fraudulently withdrawn. The O.P.No.1/Bank can not avoid responsibility by saying that the due to disclosure of confidential information amount is fraudulently withdrawn. The information was disclosed by the complainant himself therefore he suffered loss. Detailed investigation of this fraud is required. The procedure of District Forum is summary procedure in which such kind of detailed investigation is not possible.
7) It is surprising that the mobile number of the complainant was deactivated but the same was activated at Hyderabad by unknown person. Detailed investigation is required how the mobile number of the complainant was deactivated and the same was activated by unknown persons at Hyderabad. Such enquiry is not possible in the summary procedure of this Forum. It is necessary to make enquiry with the shop owner to whom the mobile was handed over. It is submitted by the learned advocate for the O.P.No.1 that the complainant has already approached Banking Ombudsman and the Banking Ombudsman passed the order dated 4th January, 2013. In the order, the Banking Ombudsman observed that account opening forms of all the beneficiary accounts were called. On scrutiny, two accounts from Axis Bank and one account from Indusind Bank certain shortcomings were found. Therefore, Axis Bank was directed to pay amount of Rs.1,40,000/- and Indusind Bank was directed to pay Rs.2 Lakhs to the complainant. The complainant has filed this complaint only against the Axis Bank and not against the Indusind Bank. There were 12 beneficiaries having accounts in different banks. Therefore, it is not possible to make detailed enquiry. It is true that order of Banking Ombudsman is not binding on this Forum still during enquiry it was transpired that there were different beneficiaries having different accounts in different banks. Therefore, detailed enquiry is necessary.
8) The learned advocate for the O.P.No.1 has submitted that in case of fraud and cheating, it is necessary to prove fraud and cheating first before arriving to any conclusion. For this purpose he has placed reliance on the judgment of Hon’ble National Commission in the case of N.Shivaji Rao –Versus- M/s. Daman Motor Company & Others, reported in 1993-(001)-CTJ-(0107)-NCDRC. In this judgment, the Hon’ble National Commission has held as under
It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant-complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency in service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery thereunder cannot be effectively utilized for determining complicated questions of fraud and cheating. The appeal is rejected and the ordcer of the State Commission is confirmed.
The learned advocate for the O.P.No.1 has also placed reliance on the judgment of Hon’ble National Commission in case of Lala Samachar Newspaper –Versus- General Manager, Telecom Department, reported in 1998-(006)-CTJ-(0336)-NCDRC and judgment in the case of Reliance Industries Limited –Versus- United India Insurance Company Limited reported in 1997-(005)-CTJ-(0688)-NCDRC. In these judgments, the Hon’ble National Commission has held that in case of complicated questions requiring detailed investigation, direction should be given to seek relief in appropriate court. In the instant complaint before us also, the complainant himself has disclosed the confidential details therefore fraud has been committed and the amount is transferred through internet banking in 12 different accounts of different banks. It is necessary to make enquiry with those banks and also account holders. Those are not the parties in this complaint. It is also necessary to make enquiry with the mobile shop owner as to how the same number was activated at Hyderabed when the mobile was handed over to the shop at Dombivali. The police complaint is already lodged. It requires detailed investigation therefore we think it is not possible to decide this complicated question in summary procedure. Therefore, the complainant may approach the appropriate court. The learned advocate for the complainant has also placed reliance on the judgment of the Hon’ble Supreme Court reported in 1987 AIR 1603. This judgment is under Negotiable Instruments Act and the matter was decided by the regular court. Therefore, the law laid down in this judgment is not applicable to the present complaint. Hence, we proceed to pass the following order.
ORDER
- Complaint stands dismissed.
- The complainant is at liberty to approach the appropriate court.
3) Parties are left to bear their own costs.
Pronounced on 24th July, 2014
