Delhi

North

CC/189/2014

DINESH KUMAR - Complainant(s)

Versus

AXIS BANK - Opp.Party(s)

27 May 2015

ORDER

O R D E R

D.R. TAMTA, MEMBER

The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant made re-charge his mobile, on-line from his account No.9130100191323011 on 27.6.2014 with OP for a sum of Rs.799/- which was credited from the complainants’ account but not debited in his mobile phone.    On 1.07.2014 complainant made a mail call to the Mobikwik Co., whom he made recharge and received a call from mobile No.9611779823 of one Sh. Yadav who asked about the complaint for recharge of Rs.799/- then he assured the complainant to refund the above said amount.  On the same day, Mr. Yadav told  the complainant that there are some problems in refund the above amount of Rs.799/- and asked about the credit card of OP’s Bank and assured to credit a sum of Rs.799/- in his account  and told him the Site No.WWW.bankingdivision.net.RBI.  The complainant  opened the said  web-site and placed the process of refund of Rs.799 on his credit card No.524508000117817 and clicked the process.  After 15 minutes, complainant received a message on mobile phone regarding amount of Rs.89,546.91/- have been dispensed from complainant’s credit card, further another message was received for  the expend of Rs.10,534.9/-.  It is alleged that after he received the above said messages the complainant was very much shocked and surprised that he has never expend such amount from his A/C neither he purchased anything from the said amount.  The complainant had informed the OP on Customer Care and requested to block the said credit card and also made a FIR with P.S. Shanti Nagar, Delhi on 2.7.2014 but no action has been taken in the matter.  It is alleged that the complainant also informed the OP verbally as well as in writing but no action has been taken in this regard.  It is alleged that the complainant contacted the Credit Card Customer Care and they informed that the aforesaid amount has not been transferred to any merchant so far.  He requested the OP not to transfer the aforesaid amount to anybody or in any account without his written permission and placed the copy of the application as well as the FIR to the OP and further requested to stop the transaction.  It is also alleged that with the utter surprise and shock that on 4.7.2014, OP has transferred the aforesaid amount to some merchant without his knowledge and permission despite of the copy of FIR  regarding the fraud, cheating loss in transactions.  The OP has made the said cheating, fraud with connivance of some merchant to whom transferred the amount of the complainant, after informing about the same, hence it is clear negligence, deficiency in service and cheating with the complainant, for which the OP is the only liable for the same.  On these facts complainant prays that O.P be directed to remit a sum of Rs.1,00,080/- alongwith other taxes and charges of the bank, apart from cost and compensation as claimed.

2.     OP appeared and filed written statement.  It is alleged that the present complaint is liable to be dismissed for non-joinder of mobikwik Co. to whom the complainant had actually made the payment to recharge his mobile by using the net-banking services of the OP and its presence is necessary to settle the entire question involved in the complaint.  It is alleged the averments made by the complainant in his complaint show his own negligence, as at the time of applying the submission of credit card application form all the Terms and Conditions were explained to the customer and the customer had acknowledged the same by signing the same.  The relevant Terms and conditions as per applicable in the present dispute is as follows: “  The Bank shall in no way be liable for any loss or damage that may occur due to hacking of the account by any persons other than the User, which fits in the definitions of a “Cyber Related Crime”  as accepted internationally.  The bank shall under no circumstances shall be liable for any damages whatsoever whether such damages are direct, incidental, consequential and irrespective of whether any claim is based on loss of revenue, investment, production, goodwill, profit, interruption of business sustained by the User or any other persons”.   Thus as per the above terms and conditions, by availing the internet facility, only the complainant is liable for any loss and not the OP in any case whatsoever.  It is alleged that the Internet Banking services is a faceless banking activity wherein the account holder is provided with a User ID & Password, who intends to avail internet banking facility, account holder intending to avail internet banking facility has to register his mobile number with the bank.  Only the account holder who enables the transaction logs on to the bank’s internet transaction website and gives the user ID and password, he will have the access to the said account of the said person whose password and ID is used.  Now, further-more, if the said account holder who accessed the said account then further, in order to transfer money, the account holder will get a new one time password on his registered mobile number in order to transfer the money from one account to another and this one time password cannot be used for next transaction.  For another transaction he will again get a new one time Password on his registered mobile number.  This is an absolutely secured environment banking system where double locking system is being provided by the bank in order to provide total safe avail of Internet Banking System.  The user ID password and one time mobile password is known only to the actual account holder to whom it is provided and who is having registered mobile, User ID and password all together simultaneously.  The bank does not know the same.  The password is kept encrypted in hash mode in the Bank’s system.  Therefore, OP has no liability or cannot collude to transfer such amount.  It is alleged that complaint is having a case of fraudulent withdrawals and then the complaint needs a thorough police investigation.  Dismissal of the complaint has been prayed for.

3.     Complainant has filed his affidavit in evidence testifying all the facts as alleged in the complaint.  On the other hand Sh. Rajeev Walia, Branch Head  has filed his affidavit in evidence on behalf of O.P reiterating all the facts as alleged in written statement.  Written submissions have also been filed by the parties.

4.     We have carefully gone through the record of the case and also heard submissions of complainant and Ld. Counsel for the O.P.

5.     It has been argued on behalf of the complainant that he had made the payment to recharge his mobile by using the net-banking services of the OP.  It is also argued on behalf of complainant that OP has transferred the aforesaid amount to some merchant without his knowledge and permission despite of the copy of FIR  regarding the fraud, cheating loss in transactions there is a deficiency on the part of OP.  On the other hand it has been argued on behalf of the O.P that Internet Banking services is a faceless banking activity wherein the account holder is provided with a User ID & Password, who intends to avail internet banking facility, account holder intending to avail internet banking facility has to register his mobile number with the bank. This is an absolutely secured environment banking system where double locking system is being provided by the bank in order to provide total safe avail of Internet Banking System.  The user ID password and one time mobile password is known only to the actual account holder to whom it is provided and who is having registered mobile, User ID and password all together simultaneously. Therefore, OP has no liability to transfer such amount. User ID & password was in exclusive possession of the complainant, the User ID & password was exclusively within his knowledge and unless the secret password has been passed by him or by some other person came to know about that it was not possible to transfer the money from one account to another.   Therefore, it is argued, there is no deficiency of service on the part of the O.P. 

6.     It is admitted case that complainant was in exclusive possession the net banking facility with a user ID & password. The secret user ID & password always remains within the exclusive knowledge of account holder because it is he who had invented the same.  Without secret user ID & password account cannot be operated.  The User will be solely responsible for maintaining secrecy of the password, so changed, and the Bank in no way shall be responsible for the misuse of the said password by any person other than the authorized User. In view of the above, circumstances, it is clear that if any unauthorized transaction has been made by anybody, it is subject of criminal investigation only.  Hence, there is no deficiency of service on the part of the OP, therefore, complainant is not entitled for any relief.  Complaint is dismissed accordingly.

Copy of the order be sent to the parties by Registered post and file be consigned to record room.

  Announced this 27^th day of May, 2015.

   ( BABU LAL)                      (D.R. TAMTA)              (SHAHINA)

     President                          Member                                     Member