Complainant Pathankot Excavators, through its partner Rajeev Gupta through the present complaint U/S 12 of the Consumer Protection Act 1986 (hereinafter for short the Act) has prayed for the issuance of the necessary directions to the opposite parties to pay Rs.12,04,000/- to him  alongwith interest @ 18% PA. Opposite parties be further directed to pay Rs.3,00,000/- on account of mental agony, harassment and pain and any other relief which he may be found entitled to in the given circumstances, in the interest of justice.

2.       The case of the complainant in brief is that he is running its business under the name and style of Pathankot Excavators, Gurdaspur Road, Pathankot which is a partnership firm and he is doing this business for self employment and earning his livelihood. He is having a mobile No.94172-09347 issued from opposite party no.1 and is regularly making payments of the bill against the services hired from opposite party no.1. Similarly he is also having Account No.635030100003010 with opposite party no.2 and is availing services from opposite party no.2 and hence he is consumer of the opposite parties. He has further pleaded that on 15.12.2015, the sim of the above mobile number was suddenly blocked by opposite party no.1 without any reason intimation or notice to him. Login password and transaction password of the abovesaid mobile number registered with opposite party no.2 for SMS purposes were also blocked on the same day. He contacted the customer care centre of opposite party no.1 at Pathankot and it was told to him that duplicate sim has already been issued. He was shocked and surprised to know this that how it happened without his knowledge and without who never any request to opposite party no.1 in this regard. After the issue was raised with the opposite party no.1 the opposite party no.1 issued another sim to him on depositing the original sim. It is clear that two sims were issued of phone No.94172-09347 on the same day i.e. 15.12.2015 one to him and other to a person not known to him. He went to the office of the opposite party no.2 on 18.12.2015 to rectify the matter, then it was noticed that two transactions of Rs.6,02,000/- each and one transaction of Rs.12,05,000/- total amounting to Rs.24,09,000/-  has been debited to his account No.635030100003010 illegally and unauthorizedly on 15.12.2015. The opposite party no.2 told him that they have received back the RTGS of Rs.12,05,000/- and it is safe with the bank, but the remaining amount of Rs.12,04,000/- has till date not been credited to his account and hence he suffered a loss to the tune of Rs.12,04,000/-. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.

3.       Upon notice, the opposite party no.1 appeared and filed its reply through its counsel taking the preliminary objections that the complaint is not maintainable in the present form; no cause of action has accrued to the complainant against the opposite party for filing the present complaint; the complainant has filed the present false complaint by concocting a false story and dragged the opposite party in false litigation; the complaint is bad for non joinder of the necessary parties and the complaint is running commercial business which is evident from the facts mentioned in the complaint, and as such this Hon’be Forum has got no jurisdiction to entertain, try and decide the present complaint. On merits, it was admitted that two sims were issued for the same number on the request of the firm with different locations and at different times with different reasons and excuses. At Chandigarh firm requested the BSNL to issue the new sim with the excuse that the said number with set was lost. FIR copy and Aadhar Card copy of Sh.Varinder Gupta authorized signatory of the firm were attached with the request. At Pathankot they got issued the sim of the same mobile number after verifying the identity of Sh.Rajiv Gupta. Both are brothers as per record. The sim was issued on the clear cut instructions of the complainant firm. All other pleadings made in the complaint have been denied and lastly the complaint has been prayed to be dismissed.

4.       The opposite party no.2 appeared and filed its reply through its counsel admitting therein that he is having account no.635030100003010 with the opposite party no.2 and is consumer. He approached the opposite party no.2 on 18.12.2015 to rectify the matter when they noticed that two transactions of Rs.6,02,000/- and one transaction of Rs.12,05,000/- amounting to Rs.24,09,000/- have been debited from the account of the complainant bearing no.635030100003010 on 15.12.2015 and that the complainant was told by the opposite party no.2 that the RTGS of Rs.12,05,000/- was received back and that it was safe with the bank. The remaining amount of Rs.12,04,000/- was not credited to the bank account of the complainant since the same had been remitted to the beneficiaries account. The RTGS of Rs.12,05,000/- was reversed as the operator of  RTGS had entered incorrect beneficiary name, the bank or its officials had no role to play in the same. All other pleadings made in the complaint have been denied and lastly the complaint has been prayed to be dismissed.

5.     Counsel for the complainant tendered into evidence affidavit of complainant Ex.C9, Sh.Varinder Gupta Ex.C11 and of Sh.Rajiv Gupta Partner Ex.C10, alongwith other documents Ex.C1 to Ex.C8 and closed the evidence.

6.       Sh.Raj Kumar Soni (JTO) BSNL of opposite party no.1 tendered into evidence his own affidavit Ex.OPW-1/A, alongwith other documents Ex.OP1/1 to Ex.OP-1/9 and closed the evidence.

7.       Sh.Mohit Badyal working as Manager Credit Currently at Bank of India of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1 and closed the evidence.

8.       We have carefully examined all the documents/evidence produced on record for their respective statutory merit and have also duly heard & considered the arguments as put forth by the learned counsels for the present litigants. We find that the present complaint prompted at the alleged failure (amounting to deficiency in service) on the part of the OP service providers to timely detect and frustrate the ‘fraud’ of Rs.12.04 Lac committed in the complainant’s OP2 Bank A/c through duplicate software mobile chip issued by the OP1 service providers. The complainant has successfully proved his loss vide the alleged fraud through his documentary evidence (Ex.C6 & Ex.C8) and its complaint/information to Police authorities and service providers through documents Ex.C1 to Ex.C5 & Ex.C7 and affidavits Ex.C9 to Ex.C11.

9.       We further find that the police with its Cyber Crime PS, SAS Nagar have registered FIR # 24 of 21.12.2015 U/s 66/66D of the IT Act & U/s 420 of the IPC to investigate (and solve) the matter in order to book the culprits. Somehow, none of the litigants have produced the present status of investigations and/ or status of the presentation of Challan in the civil/criminal court(s) etc. However, the purpose of the present proceedings shall be limited only to statutorily adjudicate/determine the infringement of consumer rights (if any) under the applicable statute and that can well be proceeded ahead, unheedingly. Moreover, by the time it has indeed been a well settled and acceptable legal proposition by virtue of a plethora of superior court rulings that a service provider shall be statutorily held liable for ‘deficiency in service’ etc in case the ‘fraud’ is played through the medium of its service paraphernalia and not if ‘fraud’ is played upon it as ‘victim n associate’.

10.     We find that the OP1 service provider has admittedly issued a duplicate SIM Card to the complainant’s mobile to one Deepak Kumar Singh on the strength of one  alleged ‘fabricated’ request letter signed in the name of the person who was not even a recorded ‘partner’ in the complainant firm. We further find that the OP2 Bank has deposed (vide Ex.OP2/1) that there has been leakage/disclosure of Login & Transaction Password by the complainant itself that let the fraudulent ‘3’ RTGS take place through the medium of Mobile Set with duplicate SIM and through which the OTP (one-time pass-word) could also be generated

11.     In the light of the all above, we are of the considered opinion that pending the outcome of criminal FIR investigation, it shall be too early-n-hasty to pronounce an adjudicatory award under the applicable statute. The contributory negligence of the complainant is also not ruled out at this stage. Under the circumstances, we dispose of the present complaint with directions to the present complainant to exhibit patience to wait for the investigation’s outcome. Although, we have kept the ‘explicit’ of our findings to the bare ‘necessarily’ minimum but even these shall not either influence or effect the other civil/criminal investigations/adjudications.

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

   (Naveen Puri)

                                                                       President     

ANNOUNCED:                                             (Jagdeep Kaur)

October 28, 2016.                                                     Member.

*MK*