DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

1.  Kiranpreet Kaur Wife of Amarpreet Singh.
2. Amarpreet Singh son of Sh. Ram Lal, both are presently residing at Flat-2, Quorn House, Brown Green, Handsworth Wood R,D Birmingham, U.K B201AG.

Both the Complainants through attorney Sh. Satwant Singh son of Gurbachan Singh resident of 34-B, Batth Villa, New Batala Colony, B/S Baba Motors Batala, District Gurdaspur(Punjab).

                        …...Complainants.

                                                          Versus

1. Bharat Sanchar Nigam Limited (Government of India Enterprises) Plot No. 2, Sector 34-A, Chandigarh-160022 through its General Manager/ Authorized Signatory.
2. Bank of India, Balachaur Branch, District, Shaheed Bhagat Singh Nagar(Punjab) through its Branch Manager.

    ….. Opposite Parties

BEFORE: MR. AMRINDER SINGH, SIDHU,    PRESIDENT

SHRI SURESH KUMAR SARDANA,      MEMBER

Present         :           Sh. Deepak Aggarwal, Advocate, Counsel of Complainant.

                                    Sh. G.C Babbar, Advocate, Counsel of Opposite Party No.1.

                                    Sh. Rajan Lohan, Advocate, Counsel of Opposite Party No.2.

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.),LLM,PRESIDENT

1.         The complainants filed present complaint under section 12 of the Consumer Protection Act, 1986(now section 35 of Consumer Protection Act, 2019) against opposite parties. The Complainant No. 1 wife of Complainant No.2 and Complainant No. 2 have filed the present Complaint through attorney Sh. Satwant Singh Son of Gurbachan Singh Resident of District Gurdaspur. The Complainants have opened joint account bearing No.  634610110000782 with the Opposite Party No. 2 for the requirement of Embassy purposes on 05.04.2017 and  also because the marriage of  Complainant No. 1 and 2 which  was  is solemnized at  District SBS Nagar  is   Complainant No. 2 ancestral home. Further, it is averred by both the Complainants that they want uniformity in the documentation for Visa application process. It is worth mentioning here that  Complainant No.2 also got issued a SIM Card/Mobile No. 94639-95189, through the services of OP No. 1, based at Sector-34, Chandigarh, after submitting requisite documents. It is worth mentioning here that Complainants got  linked the above  said Mobile Number with the above said joint account opened with OP No. 2. The instructions/guideline dated 01.08.2016 issued by Government  of India of Communications Department of Telecommunication. The above mentioned account was opened especially for embassy purposes has limited transactions before depositing the Complete Sum of  Rs. 7,94,000/- till 13.06.2017. The funds were maintained till  the arrival of Visa. It is  pertinent to mention here that on 08.08.2017 interest  of Rs. 4944/-, was  paid by the  bank and thus the total amount lying in the account of the complainants stood at Rs. 7,99,425/-. The Mobile bearing No. 94639-95189, was lined with abovementioned joint account No.    634610110000782. Therefore, all the OTPs and other bank messages used to come on this number. On 19.08.2017, the SIM Card/Mobile bearing No. 94639-95189 stopped working and Complainant No. 2, called the customer care office No. 1, regarding above but they said that matter could be resolved only at BSNL exchange office of OP No. 1, at Chandigarh. On 20.08.2017 being Sunday and on 21.08.2017, Complainant No. 2 was busy in his personal works, visited the office of OP No. 1 on 22.08.2017 to enquire about the problem with the SIM card as mentioned above. It was informed by the office of OP No.1 that duplicate SIM, has been used on the request of Complainant No. 2. Complainant No. 2 went to shock and depression after hearing about issuing of duplicate SIM card because never ever any request had been made by Complainant No. 2 and Complainant No. 1 for issuance of duplicate SIM card. The Complainant No. 2 insisted OP No. 1 to show the documents for issuance of duplicate SIM card and acquired the knowledge regarding the duplicate SIM card has been issued by OP No. 1 to the third party due to sheer negligence and callous attitude on the part of the OP No. 1, who issued the duplicate SIM card without even properly verifying the documents submitted by the third party including without following the instructions/guidelines dated 01.08.2016 issued by Department of Telecommunications including without confirming to KYC Norms. The Aadhaar card submitted by the third party had following discrepancies;-

1. Aadhaar Card Number itself does not exist and no one bothered to cross check this from Aadhaar Card  website before issuing SIM.
2. It mentions name of Complainant No. 2, as Amarpreet Singh whereas Complainant No. 2 customer applications Form (CAF) says Amarpreet only.
3. Photo mismatch with complainant NO. 2’s (CAF)
4. Date of birth mismatch with Complainant No. 2 CAF
5. Aadhaar card does not mentions any father name
6. Complete mismatch of complainant No. 2 signature in DDR as well. Further, there is discrepancy in the dates in the DDR as well, perusal of the DDR will reflect that the date on the top right hand side on Annexure C-12 is mentioned as 18.08.2017 and at the bottom the date mentioned is 09.08.96”.

The Complainant No. 2, immediately made a request to OP No. 1, to deactivate the SIMs, who assured the same will be deactivated immediately and only original SIM will be put in operation but neither the duplicate SIM card was deactivated nor the original SIM was put into operation with that being fed up, the Complainant decided to stop using the services of OP No. 1, but before surrendering the complainants thought of updating the bank account with another number. On 23.08.2017, when Complainants visited the Patiala Branch of OP No. 2 to update, another number, then told by the officials at the Patiala Branch of OP No. 2, that in order to update another number, Complainants have to visit the home Branch at Balachaur and complainants came to know illegal transfer, of Rs.7,99,000/-, through RTGS and IMPS from their account. Thereafter, the Complainants were shocked as their hard earned money has been illegally siphoned off from their bank account due to negligence and callous attitude of the OPs left with no the alternative complainants visited their home branch at Balachaur, i.e. OP No. 2, wherein Branch Manager confirmed the above mentioned illegal transactions and written complaint dated 23.08.2017 was given to the Branch Manager of OP No. 2, which was duly acknowledged under his seal and signature. Complainants also made request for lodging of FIR, but at this juncture Branch Manager of OP No. 2, initially told, that lodging of FIR, can seriously jeopardize the plans of Complainants of shifting to United Kingdom but on persistence, he assured that as the bank is also aggrieved by illegal transactions in question, so he will write to his superiors for lodging FIR, in the matter, through bank. Thereafter, when nothing concrete happened in matter, Complainant No. 2 made a written request dated 31.08.2017 (Annexure C-6) to provide full details of the illegal transactions been made from his account on 21.08.2017. At this following details were provided by the Bank Manager and the same are as under:-

1. United Bank of India- Salt Lake Branch Kolkata Amount: 3,99,000/-,

Account No. 0720011644403   Name: Nita Bhutia

2. Bank of India   -  Wadala East Branch

Amount: 3,50,000/-

Account No. 00910110018943

Name: Vijendra Ramesh Shah”

Apart from above, the information supplied under RTIAct will reflect that application from submitted by third party with the OP No. 2, there is clear mismatch of the signatures of Complainant No. 2, when compared with admitted signatures. Further, particulars given in Aadhaar Card also are totally different, when compared with Aadhaar Card, of Complainant No. 2, DDR lodged at Mumbai on 18.08.2017 and on the same date OP No. 2 issuing the duplicate SIM Cards. All the above facts clearly point towards negligence and deficiency in providing proper services by the OPs to the Complainants. Thereafter, Complainants, wrote many emails to the O.P.s and other competent Authorities in this regard but of no avail. On 18.09.2017, the OP No. 2, bank asked the Complainants, to file a complaint, with Cyber Cell, knowing full well that Complainants were to leave for U.K very soon. In the circumstances mentioned above Complainant No. 1, informed OP No. 2, that Complainant No. 1, had her flight to U.K on 20.09.2017 and therefore, she will not able to come to the Cyber Cell of the Police and further that Complainant No. 2, had also to go to U.K on 25.09.2017, Branch Manager of OP No. 2, was jut washing his hands over the matter, without taking any pains for recovery of the amount. Complainants formally sent a Complaint to the office of ADGP, IT & T through an E-mail. The Acknowledgment by the office of ADGP was also sent to the bank as per their demand on 03.10.2017, nothing has been heard in thereafter. The Complaint was filed with the office of Ombudsman on 31.10.2017, who closed the complaint and remanded the case to CVO, Bank of India for further inquiry. In the circumstances complainants, sent three E-mails to the office of CVO regarding any improvement, deadline etc for this enquiry but no reply was ever served. However, CVO never felt any need to either acknowledge or answer the Emails of the aggrieved Complainants. Lastly, the Complainants have prayed for acceptance of the complaint and to direct the opposite parties to pay Rs. 7,99,000/- along with interest @ 18% per annum and compensation on account of causing mental agony and harassment and emotional disturbance caused to the complainant along with cost for litigation expenses or any other relief which this commission may deem fit and proper under the facts and circumstances of the present complaint.

2. After the service of notice upon the O.P, the O.P.s appeared before this Commission and filed their separate written version to complaint which were taken on record, taking preliminary objections that  the Complainant No. 1 is not the Consumer Qua BSNL has no telephone connection or duplicate SIM card has been issued in the name of Complainant No. 1, as such the complaint is liable to be dismissed on this ground; the complainant No. 2 in his complaint has alleged that he got a sum of Rs. 3,94,000/- deposited with the Bank-OP No. 2 by opening a fresh account on 05.04.2017 for limited transaction till the Visa clearance has been received. He has further alleged that the said amount has been withdrawn out of his account by third person and a fraud has been committed; this Hon’ble Commission has not territorial jurisdiction also as no cause or part of the cause of action has arisen at Chandigarh except the duplicate SIM card has been issued by the BSNL at Chandigarh.

   On Merits, O.P denied the entire allegation made against them by the Complainants and prayed for dismissal of the complaint.  It is denied that the complainant No. 1 is not the Consumer Qua BSNL and complainant No. 2 has not executed any power of Attorney in favour of Satwant Singh therefore, the present complaint is not competent and it’s liable to dismissed being filed by un-authorized person. It is denied that documents C-9 itself speaks the various transaction made from the accounts and the sum of Rs. 7,99,425/- has been shown against transaction dated 08.08.2017 and value dated 01.08.2017 and not on 13.06.2017 as alleged; it is also denied that no other transaction has been made out of the said account; it is admitted to the extent that the Mobile bearing No. 94639-95189 was issued to the Complainant No. 2. It is denied that Complainant approached the BSNL at Chandigarh and applied for the duplicate SIM card by producing the DDR for loss of the earlier SIM card; it is admitted that the extent that the telephone was deactivated with the original SIM on 08.09.2017 on the request of the Complainant. It is denied that for want of knowledge as it is the correspondence between the Complainant and OP No. 2; it is admitted that the BSNL has not shown any laxity and negligence as alleged for the issuance of duplicate SIM card but acted as per the latest practice prevailing in the BSNL for the issuance of the duplicate SIM card and strictly followed the instructions; it is denied that the complaint is not maintainable:  The complaint is false, frivolous and vexation Qua Bank of India and thus deserves to be dismissed with costs; It is admitted that Complainants opened a joint saving account bearing No. 634610110000782 in the Balachaur Branch of the OP bank on 05.04.2017; it is admitted that Mobile bearing No. 94639-95189 was registered with the said bank account being maintained by the Complainant; it is submitted that complainant wrote a letter to the OP bank on 23.08.2017 regarding fraudulent transaction/withdrawal; It is denied that grievances of complainant were given deaf ears; it is admitted that Chief Vigilance Officer of the Bank conducts its own independent inquiry; it is denied that money has been illegally siphoned off from the bank account due to negligence and callous attitude of the Answering-OP.

3. Replication has also been filed by the complainant thereby controverting the assertions of OP made in their reply and reiterating their stand in the Complaint.

4. Parties led evidence in support of their contentions.

5. We have heard the Counsel for the parties and have gone through the entire record.     

   The main issue involved in the present complaint is whether opposite parties are deficient in providing service, the opposite parties or not ?

In order to find out answer to this question, it is necessary to discuss the following facts and circumstances of the case.

   The main objection taken by the opposite party is that as it is the case of fraud so Consumers Commission does not have a jurisdiction to try and adjudicate upon the present subject matter. It is observed that though it is a case of fraud yet there is an element of deficiency on the part of the both the parties. Hence, Consumers Commission has jurisdiction to try and adjudicate upon the present subject matter. The complainant has placed on record the guidelines dated first of August 2016 as Annexure C-2, as per guidelines, the officer is duty-bound to match the copy of proof of identity with the original document and before activating the new SIM, he shall verify it with the documents of proof of identity submitted by the subscriber as to whether they are matching with record available or not. In the case in hand application form submitted by the third party as Annexure C-10 has the below given discrepancies:-

(a) The application form is without date.

(b) No photograph is pasted upon the same.

(c) Total mismatch of the signatures of the complainant when compared to the admitted signatures which are part of record of the OP No.1 in the shape of original customer application form which is Annexure C-3

(d) Even the name and address of the applicant is not mention in the application form.

(e) The reasons for issuance of duplicate SIM card are not mentioned in the application form.

(f) The Aadhaar card submitted by the third party is different from the Aadhaar card Submitted by the original applicant (Consumer/Complainant No.2). Aadhaar card number submitted by third-party (Annexure C-11) is 503797686392 where as Aadhaar card number of complainant no.2 is 312578202121 (Annexure C-).Moreover, year of birth on Annexure C 11 submitted by third-party is 1972, whereas year of birth of complainant is 1978.(Annexure C-27). Not only photographs on the copies of Aadhaar cards are different but also addresses are different. Last, but not the least the difference of signatures of the third party and the complainant no.2 is visible with the naked eye. When the employee failed to notice the above discrepancies which he is legally bound to tally then he is not only deficient in rendering service but also guilty of gross negligence. The possibility of his being in connivance with the third party can also be not ruled out. Hence, OP no.1 is liable to pay compensation to the complainant’s for not only deficiency in their service but also being guilty of gross negligence.

      As for as OP No.2-Bank  is concerned , the findings of the banking Ombudsman, Reserve Bank of India, sector 17, Chandigarh (Annexure C-14) vide its order dated 14 November 2018 is reproduced as below:-

“…vi) The details furnished by the bank are not sufficient to prove that bank’s position that the customer (complainant) might have mistakenly shared the credentials with Fraudsters, However, it cannot be proved with certainty as well. There was no negligence on the part of the complainant. The bank has reported incident in the form of complaint with much delay to the police on 30.10.2019 which is pending for investigation.

(Vii) The bank was advised verbally over telephone and in the meetings with BO to share the following details which the bank did not furnish:-

(a) To submit KYC, details of the beneficiaries and comments of the bank, whether the beneficiaries are linked to the complainant or not.

(b) Whether amount credited to and immediately withdrawn from the beneficiary account were reported as suspicious transactions to FIU or not, as applicable as per extant instructions.

(c) Whether the internet transactions were done in India or from outside India.

(d) Location of IP addresses.

(e) Sharing the full report of CVO.

(f) The bank’s international policy and audit logs of transactions of the complainant.

3. Taking into account the bank’s response. The banking Ombudsman has observed the following:-

(i) The bank failed to do justice with the costumer.

(ii) CVO had also not done justice by doing detailed investigation to arrive at any confusion based upon facts and these details.

(iii) The internet banking also of the bank needs a lot of refinement as it creates more confusion.

iv) KYC from United bank was not obtained which is a serious issue.

(v)  Suspicious transaction reporting, as applicable.

(vi) The bank was not at all cooperating in solving the issues. Even basic information asked for was not presented and passed on to 0BO instructions on internet banking was not properly explained.

(vii) The banking ombudsman has also countered that with the main observations of the dealing official:-

(i) The bank lodged Complaint with the police on 30-10-2018 which it could have done immediately after knowledge of incidence that is on reporting by the complainant to the bank on 23-08-2017.

(a) Additional details pertaining to issuance of duplicate SIM, not obtained by the bank.

(b) huge Time lapse was observed in the bank’s follow up with United bank of India to get KYC details and it seems, still, it has not been obtained.

(c) The bank would not validate with its classification that no amount can be transferred from the internet as the requirements or not uniform for transactions on existing authorized devices and a new device type of transaction example NEFT/RTGS, vis-a-vis inter-bank transfer/IMPS etc.

d) The bank has not specified whether transactions on21-08-2017 were done from a new device or from already activated assistant device where is it its point.

(r)       The view of the bank’s CVO that enough security standards available in regard to net banking security righted by the bank was not supported with net banking security standards of the bank in a detail.

(f) The bank has also not mentioned how and when the customer opted for Star Token application and how was it activated by the customer.

(g) The bank mentioned that the customer what is the user of Star Token application, which adds one more step to security of the banks, internet banking and Star Token password/Pin was required to login into the star, took her application, but the bank did not furnish the process of flow from the login to transaction along with its internet banking policy in support of its claim…..”

Keeping such factors into consideration, banking ombudsman has close the complaint u/c 13(a) of BOS, 2006.

(5) This order will have no effect on the  exercise of rights of the customer ,if any customer is not satisfy with the decision of the banking ombudsman then he can file his complaint with the concerned the court/form against the concerned bank.”

So from the above mentioned findings of the learned ombudsman and the facts of the circumstances brought on record in this complaint, it can safely be concluded that banking remained not only deficient in rendering services to the consumers but also negligent in doing their duties. Hence, OP No.2 is liable to pay compensation to the complainant. Moreover, the possibility of banking officials being hand in glove with the third party (Fraudsters) cannot be ruled out. In nutshell, we partly allow the complaint and direct both the opposite parties to pay compensation of Rs.3 lacs each to the complainants in equal shares for remaining negligent in performing their official duties & for causing Financial loss, mental agony and physical harassment to the complainants, with 60 days from the date of receipt of copy of order failing which they shall be liable to pay interest @ 9% per annum from the date of order till the date of its actual realisaiton.

6.        The pending application(s) if any, stands disposed of accordingly.

7.        Certified copies of this order be sent to the parties as per rules. After compliance file be consigned to record room.

Announced in open Commission.

Date 10.05.2023

Place: Chandigarh.

(Amrinder Singh Sidhu)

                                                                                          PRESIDENT

                                                                                          ( Suresh Kumar Sardana)

                                                                              MEMBER.

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