CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/294/12

          Date of Institution:-    26.07.2012

          Order Reserved on:- 24.04.2024

                      Date of Decision:-      03.10.2024

IN THE MATTER OF:

Mr. Harsh Mehta

S/o Mr. B. B. Mehta,

R/o B-9/6451, VasantKunj,

New Delhi– 110070

.….. Complainant

VERSUS

1. BhartiAirtel Limited

Through its Managing Director,

Bharti Crescent,

1, Nelson Mandela Road,

VasantKunj, New Delhi – 110070

2. Standard Chartered Bank

Through its Branch Manager

DLF, Gurgaon, Haryana

…..Opposite Parties

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations that OP-1 is into the business of providing telecommunication services whereas OP-2 is a Bank which is into the  business of providing banking service across the nation. He has brought one post-paid mobile connection bearing no.9958316644 with Sim card No.8991101110221232280F from the outlet situated at VasantKunj, New Delhi of OP-1. He is having corporate salary account no.53110607850 with OP-2 which has issued credit card no.4541982393880665 to him. On 19.01.2012 he has received SMS from OP-1 that request ID for changing Airtel Mobile Sim No.8991101110221232280F to 89911011102250806886F is 63279578 and you will get confirmation SMS once it is complete. The same is annexure A. He was shocked as no such request was made by him to OP-1 and lodged a complaint on the same day with customer care officer of OP-1 who told that steps will be taken to restore existing Mobile SIM number but in vain as existing mobile SIM number was deactivated. On 20.01.2012, OP-2 has sent an email at 7.45am with the subject standard chartered transaction alert for the withdrawal of Rs.1,31,000/-(transfer of Rs.2020 on 19.01.2022, Rs.55010/- on 19.01.2012, Rs.42970/- on 19.01.2012 and Rs.31,000/- on 20.01.2012)from the salary account and the same is Annexure-B and the complainant should call helpline if he has not done the transaction. He immediately reported the matter to OP-2 with the statement of account objecting to the withdrawal of Rs.1,31,000/-. The copy of the complaint with statement of account is Annexure-C. He also sent in email dated 20.01.2012 to OP-1 for the deactivation of existing mobile SIM which is Annexure-D. The OP-2 sought one day time to resolve the issue but OP-1 neither resolved the issue nor replied to his complaint. The copy of email sent by OP-1 to him is Annexure-E. The matter was also reported the Commissioner of Police, Gurgaon vide complaint dated 21.01.2012 which is Annexure-F. The complaint dated 31.01.2012 was also filed before Banking Ombudsman, New Delhi against OP-2 but in vain. The OP-2 replied on 23.02.2012 to the complaint dated 20.01.2012 wherein baseless and frivolous grounds were taken to deal with his complaint. The said reply is Annexure-G. He has no relation with the beneficiary. The limit of online transfer is Rs.1 lakh in a day. OP-2 has failed to explain whether any inquiry was made or an explanation in writing for the said beneficiary was taken or not. The OPs are jointly or severally liable to compensate about the loss suffered by him. Hence, this complaint.

2. OP-1 has filed the written statement with the averments that Sh. Amit Bhatia is the AR of the OP who is authorised to file the reply vide power of attorney dated 01.12.2015. The complainant has supressed the material facts from the Commission. The complainant is not a consumer. The complaint requires detailed evidence which is not possible in a summary procedure. It appears that complainant has disclosed the confidential information to the anonymous person which led the fraudulent bank and card transaction. The request for deactivation/new sim was sent by the complainant which led to be fraud. The bank in the investigation also noted that a new beneficiary namely Deepak Prabhkar has been included in the internet banking facility for effecting fund transfer. There is no material to show that there is any deficiency of service or any unfair trade practice on the part of OP-1 which led to the alleged fraud. The complainant has failed to bring final finding of Banking Ombudsman on record. The civil and criminal action lies against such fraud for which OP-1 cannot be made liable. The OP-1 should not be held liable for fraudulent transaction in view of the RBI Circular No.DBR.No.LEG.DC-78/09.07.005/2017-18 dated 06.07.2017. The complainant has not made any complaint/request on 19.1.2012 with respect to the reactivation of the SIM and deactivation of another SIM which has been activated. The allegations of the complainant are false and frivolous.

3. OP-2has filed the reply with the preliminary objections like cause of action, no deficiency in service and suppression of material facts. On merits, the issuance of credit card to the complainant is admitted. OP-2 provides internet banking facility which can be loggedin by using ID number and password. The OP-2 educates the customers that confidential material should not be disclosed to anyone. The internet banking facility is possible with login Id and password.The internal investigation revealed that complainant has shared his account and debit card information to third party.The duplicate sim request was processed by the complainant’s service provider. The SMS issued by the OP-1 was ignored by the complainant. A new beneficiary was included in the complainant’s funds transfer facility on the issuance of duplicate SIM. The one time password is generated and sent to the mobile number registered with the bank the said OTP was submitted at the time of registration of new beneficiary for fund transfer. The complainant has lodged the complaint with the Police. The grievance raised by the complainant was duly investigated and redressed by OP-2. The allegations against the bank are false and frivolous.

4. The complainant has filed their rejoinder wherein he has reiterated the stand taken in the complaint and denied the averments made in the written statements.

5. The partieswere directed to lead the evidence.

6. The complainant has filed his own affidavit in evidence wherein he has corroborated the version of complaint and placed reliance on the documentsEx.A to H.
7. The OP-1 has filed the affidavit of Sh.Amit Bhatia in evidence and corroborated the version of written statement andplaced reliance on the documents Ex.OPW1/1 to 1/2 i.e. power of attorney executed by the bank in favour of Amit Bhatia as well as RBI Circular.

8. OP-2 has not filed the evidence and right to file the evidence was closed.

9. We have heardthe Ld. Counsel for complainant and OP-1 as no one has turned up on behalf of the OP-2 and perused the entire material on record.

10.   It is admitted fact that OP-1 has issued a SIM No.9958316644 to the complainant. The complainant has received an SMS dated 19.01.2012 at 4.59PM from OP-1 that request ID for changing your AirtelSimmobile no.8991101110221232280F to 89911011102250806886F is 63279578 and he will get confirmation SMS once it is completed. The same is shown as Annexure-A. The OP-1 has not controverted annexure-A meaning thereby that this SMS was sent by OP-1. The OP-1 has not placed request no.63279578 on the record to show that complainant has sent the request for the change of SIM number. The OP-1 was in possession of the said document. The said document is not annexed either with the WS or filed during the course of evidence. The best possible evidence has been withheld by the OP-1 which calls for an adverse inference against OP-1. This shows that no request was sent by complainant to the OP-1. The OP-1 has changed the SIM number without request from the complainant which tantamounts to deficiency of service.

11. The complainant has received SMS alert on 20.01.2012 at 7.41am from OP-2 for the withdrawal of Rs.1,31,000/- from his account and credit card (transfer of Rs.2020 on 19.01.2022, Rs.55010/- on 19.01.2012, Rs.42970/- on 19.01.2012 and Rs.31,000/- on 20.01.2012) from the salary account and credit card and the same is Annexure-B. The evidence led by OP-2 shows that complainant has added another beneficiary by the name Deepak Prabhkar in the internet banking facility for effecting fund transfer. The bank has not led any evidence to show that any beneficiary was added by the complainant either by sending SMS or email. The plea in the WS cannot be taken into consideration once OP-2 has not led any evidence. There is no evidence on record that complainant has added any beneficiary in the internet banking facility.

12. The relations between a bank and its customers arise out of the contract entered between them. The relationship between them is of debtor and creditor. The bank owes a duty of reasonable care to protect the interest of its customers including that of steps to prevent unauthorised withdrawal from their account. The natural corollary of this is that bank can be held liable in case customer suffers some loss by way of an unauthorised withdrawal.

13. The RBI rules say that customers have no liability when unauthorised transaction occurs in this scenario like this.
    • Breach by third party where the responsibility lies neither with the bank nor with the customer and the customer notifies the bank after receiving the transaction alert from the bank on their mobile number or email id registered with the bank
    • Contributory fraud / negligence / deficiency on the part of the bank
    • When the responsibility for the unauthorised transaction lies neither with the bank nor with the customer, but lies elsewhere in the system.

14. The complainant has sent email dated 20.01.2012 Annexure-D to the bank on the receipt of Annexure-B from OP-2. The complainant has immediately reported the matter to the bank/OP-2. The OP-2 immediately did not take any action. The investigation report as alleged in the WS is not annexed with the WS. The OP-2 neither lodged any cyber complaint with the Police nor taken any steps to take back the amount from the alleged beneficiary. The OP-2 is a mighty organization and steps could have been taken to recover back the money through legal means. The bank is negligent in redressing the complaint sent by email to the OP-2. The inaction on the part of the bank/OP-2 tantamounts to deficiency in service.

15. The discussion shows that there is deficiency of service on the part of the OPs which led to the withdrawal of amount from the account of the complainant.

16. In view of our aforesaid discussion, the complaint of the complainant is allowed to the effect that OP shall jointly or severally pay a sum of Rs.1,31,000/- along with an interest @7% p.a. from the date of filing the complaint i.e. 26.07.2012 till its realization. The complainant is also entitled for compensation on account of mental harassment and litigation expenses to the tune of Rs.40,000/-. The OPsare directed to comply with the order within 45 days from the receipt of the order failing which complainant will be entitled for interest @7% p.a. on the amount of mental harassment and litigation charges i.e. from the date of order till its realization.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 03.10.2024.