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 is account holder in O.P./Bank since 7th December, 1987 having Account No.0415100005072 along with his wife Dr.Neeta Santosh Jalukar. On 26th April, 2011, his wife Dr.Neeta received phone call from unknown person calling from mobile number 8698741405. The said person requested to transfer SMS received by her to his mobile so that registration process will be complete. His wife forwarded the SMS to the said person. On that basis, the said person managed to transfer the balance of Rs.1,07,600/- from his account to two other accounts keeping only balance of Rs.46/-. This happened on 26th April, 2011. The bank is supposed to keep all the data of account holder confidential and safeguard the interest of the customer. The data was leaked by the bank thereby the complainant suffered loss of Rs.1,07,600/-. The bank has not taken adequate measures to prevent such fraud through net banking. The complaint was lodged with cyber crime police on 27th April, 2011 and the F.I.R. was registered on 28th April, 2011. The complainant also approached the Banking Ombudsman on 8th September, 2011. The complainant also approached personally to the O.P. He also collected the photographs who had withdrawn the amount from ATM. He has collected the mobile numbers of those persons. The amount was transferred to two account holders from Andheri and Dombivali. On enquiry, there was no such person staying at Andheri address. The person from Dombivali informed that his ATM card was lost in February-2011 but did not inform the bank as there was no balance in account. The complainant also approached the Secretary (Information Technology), Mantralaya, Mumbai on 5th September, 2011. The incident happened as the data and mobile number was leaked by the O.P./Bank and the proper precaution was not taken.
2) The amount of Rs.57,600/- was transferred to the Account No.27870100005911 of Vikas Pukhraj Jain, Shashtri Nager, Dombivali(West). The amount of Rs.50,000/- was transferred to Raju Baburao Naik, Account No.200701000010428 Vaishali Nagar, Mulund(West), Mumbai. The other account holders also suffered heavy loss due to the negligence of the O.P./Bank. Therefore, the complainant has filed this complaint for the recovery of Rs.1,07,600/- with interest and Rs.10,000/- towards cost and Rs.50,000/- towards mental stress.
3) The O.P. appeared and filed written statement and submitted that the complaint is false. It is admitted that the complaint is account holder along with his wife. The wife of the complainant interacted with unknown person by sending SMS received by her whereby she disclosed the tracker ID. Therefore, the complainant is not entitled for any relief against this O.P. The wife of complainant is responsible for this incident. On 27th April, 2011, the complainant informed the shortage of amount Rs.1,07,600/- in his joint account. The complainant informed that his wife forwarded the tracker ID to the said person on mobile without verifying any credentials of the caller. It is common knowledge the customer should not disclose banking details such as user ID, password, tracker ID and other information to unknown person. On enquiry, it was found that amount of Rs.50,000/- was transferred to the account of Raju Baburao Naik and Rs.57,600/- was transferred to the account of Vikas Pukhraj Jain. Those accounts were KYC compliant at the time of opening and they were duly introduced by the KYC compliant. There was no negligence on the part of the O.P./Bank. As the wife of the complainant is responsible, this O.P. is not liable to pay any amount to the complainant.
4) After hearing both the parties and after going through the record, following points arise for our consideration
POINTS
Sr. No. | Points | Findings |
1) | Whether the complaint is maintainable ? | No |
2) | Whether there is deficiency in service ? | Does not survive |
3) | Whether the complainant is entitled for the relief as prayed ? | Does not survive |
4) | What Order ? | As per final order |
REASONS
5) As to Point No.1 :- It is not disputed that the complainant is the joint account holder alongwith his wife Dr.Neeta. According to the complainant, his wife Dr.Neeta received phone call from unknown person on 26th April, 2011 calling from mobile number 8698741405. The said unknown person called her that they are in process of registration of phone numbers of concern account. She will receive SMS and she has to forward the same on his mobile. Accordingly, she forwarded the SMS on the mobile of the said unknown person. On that basis, balance of Rs.1,07,600/- was transferred from his account and amount of Rs.46/- only remained in balance. The complainant lodged complaint with cyber crime police on 27th April, 2011 and F.I.R. was registered on 28th April, 2011. He has also filed complaint with Banking Ombudsman on 8th September, 2011. The complainant also lodged complaint with Secretary, Information Technology, Mantralaya, Mumbai on 5th September, 2011. According to the O.P., Secretary, Information Technology, Government of Maharashtra, Mumbai was appointed as Adjudicating Officer under section 46 of the Information Technology Act, 2000 and after enquiry he delivered the judgment dated 22nd February, 2013 in Complaint No.3 of 2011 dated 9th August, 2011. The copy of the said judgment is produced on record. On perusal of it, the complainant lodged complaint and it was adjudicated by the Adjudicating Officer under section 46 of Information Technology Act, 2000. In his judgment, the Adjudicating Officer appreciated the efforts made by the complainant and also passed remarks against the police investigating machinery. He has directed the O.P./Bank to pay damages Rs.1,20,000/- to the complainant. It is informed that the O.P./Bank has already deposited this amount of Rs.1,20,000/- as per order of the Adjudicating Officer.
6) It is vehemently submitted by the learned advocate for the O.P./Bank that once the complaint is lodged with Adjudicating Officer under Information Technology Act, Civil Court, Tribunal or any other authority can not entertain the complaint. She has drawn our attention to the provision of Section 61 of the Information Technology Act, 2000 which is as under :
Sec.61 :- No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Under this provision, there is specific bar to the jurisdiction of civil court or any other authority to try same complaint. The learned advocate for the O.P. has also drawn our attention to Rule 9 of the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003 which runs as under :
Rule 9 Duplicity Avoided :- When adjudication into a matter of contravention is pending before an Adjudicating Officer, same matter shall not be pursued before any court or Tribunal or authority in any proceeding whatsoever and if there is already filed a report in relation to the same matter, the proceedings before such other court, Tribunal or Authority shall be deemed to be withdrawn.
In view of this provision, there is specific bar to the jurisdiction of any court, Tribunal or authority to try the same complaint. Admittedly, the complainant lodged complaint with the Adjudicating Officer on 9th August, 2011 thereafter the present complaint was filed before this Forum by the complainant on 15th November, 2011. The Adjudicating Officer decided the complaint on 20th February, 2013. In view of the above provision under section 61 and Rule 9, this Forum can not entertain the present complaint which is already decided by the Adjudicating Officer under the Information Technology Act, 2000.
7) The learned advocate for the O.P. has placed reliance on the judgment of Hon’ble National Commission in case of U.Rajendran –Versus- Tamil Nadu Merchantile Bank Limited reported in I (1992) CPJ 220 (NC). In para 6 of the judgment, the Hon’ble National Commission has laid down as under :
The claimant vehemendy argued that Order 2, Rule 2, Civil Procedure Code has not been made applicable to the proceedings before the various forums constituted under the Consumer Protection Act, 1986 and therefore, the State Commission was not right in relying upon that provision. We do not think it necessary to go into that argument in detail. Section 3 of the said Act lays down that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Thus there were two remedies open to the claimant. He could have filed a civil suit for the recovery of the amount or he could have instituted proceedings under the Act of 1986. The complainant chose the first referred remedy and filed a civil suit for the recovery of the Muthukuvial Deposit which was decreed. For delayed payment by the Bank he has been allowed interest. He can not be now permitted to institute proceedings under the Act of 1986 about that deposit and for compensation about non-payment on maturity. If he is allowed to do so, it will amount to abuse the process of law. A party can not be permitted to harass the opponent twice for the same cause of action.
Similar view is taken by the Hon’ble National Commission in other judgment in the case of M/s.Oswal Fine Arts –Versus- M/s. H.M.T. Madras, reported in I (1991) CPJ 330 (NC). In para 2 (ii) it is held as under :
Another formidable objection to the maintainability of this claim is that the matter is sub-judice before the Madras High Court on its original side where the complainant has instituted a suit for damages against the respondent based on the identical cause of action. There is also a cross suit filed by the respondent company in the city Civil Court at Bangalore claiming certain reliefs against the Complainant in respect of the same transaction. When the matter is, thus, sub-judice before the ordinary Civil Courts of the land, this Commission cannot and will not entertain any claim for compensation in respect of the identical subject-matter.
The learned advocate for the O.P. has also placed reliance on the judgment of Hon’ble Supreme Court in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Socity –Versus- M. Lalitha reported in (2004) I Supreme Court Cases 305. In para 19 of the judgment, the Hon’ble Supreme Court has held as under :
The question of conflict of decisions may not arise. If the parties approach both the forums created under the Act and the 1986 Act, as indicated in the case of Fair Air Engineers (P) Limited, it is for the forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other forums, depending on the facts and circumstances of the case.
Identical facts are before us. The complaint is already adjudicated by the Adjudicating Officer therefore this Forum can not entertain the same complaint. It is submitted by the complainant that the Adjudicating Officer has not awarded interest and compensation for mental agony. At this juncture, we would like to reproduce the provision under section 47 of Information Technology Act, 2000 which is as under :
Sec.47 Factors to be taken into account by the adjudicating officer
While adjudicating the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely :-
(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default
In view of this provision, the Adjudicating Officer has to consider the amount of gain by the fraudulent person and loss to the victim i.e. the complainant.
8) It appears that the complainant is not satisfied with the judgment of Adjudicating Officer. The provision of appeal is there. The O.P./Bank has already approached the Hon’ble High Court by filing Writ Petition No.4486 of 2013. The Hon’ble High Court vide order dated 2 July, 2013 has given chance to the O.P./Bank to file appeal before the Cyber Appellate Tribunal and the O.P./Bank was directed to deposit the amount of Rs.1,20,000/-. It is informed that the O.P./Bank has already deposited the amount. If the complainant is aggrieved, remedy is available with him to approach Cyber Appellate Tribunal. This Forum can not sit as Appellate Authority and can not decide whether the order passed by the Adjudicating Officer is proper. Thus, the complaint is not maintainable before this Forum.
9) Point No. 2 & 3 :- As discussed above, the complaint is not maintainable before this Forum therefore this Forum can not decide these points. Hence, we proceed to pass the following order.
O R D E R
1) Complaint stands dismissed as not maintainable.
2) Parties are left to bear their own costs.
3) Inform the parties accordingly.
Pronounced
Dated 3rd March, 2014
