Ld. Advocate(s)
For Complainant: Samaresh Kumar Mitra
For OP/OPs :Anjan Banerjee
Date of filing of the case :06.02.2023
Date of Disposal of the case :29.05.2024
Final Order / Judgment dtd.29.05.2024
The allegation of unauthorised withdrawal of huge amount of money from the account of the complainant of OP Bank dragged this complainant to file the present case. The pith and substance of the case of the complainant in a nutshell is that the complainant Anita
(2)
CC/11/2023
Rao is a customer of OP No.1 Jana Small Finance Bank Limited, Kalyani , Nadia having account no.3285019477026332. After opening the account on 30.07.2022 the complainant has been depositing money in the said account through cheques. After updating the pass book the complainant came to know that a sum of Rs. 13,74,000/- has been withdrawn from her account through high transaction by swapping mobile number of which service was provided in OP No.2 S.D.O Telephones , BSNL, Kalyani. The complainant was shocked with the said transactions in her account with the OP No.1. The said amount was deposited for the purpose of constructing residential house from the money got by her husband after retirement. Thereafter, she informed the matter to the branch manager of the bank and requested to take necessary measure , so that she could get refund of the money withdrawn fraudulently. But the OP No.1 did not take any step and tried to escape the liability. The miscreants manage to get the account details including phone number of the complainant from the bank authority. So, the complainant lodged a complaint on 24.12.2022 to the Kalyani Cyber Crime Police Station, Kalyani, Nadia. The Ranaghat Police Station lodged a complaint being Ranaghat P.S case No.26/2022 dated 24.12.2022 u/s 419/420 of IPC. In course of investigation the police identified the criminal and detected the account in which the money has been transferred and also withheld the account. The complainant never requested the OP No.1 to provide internet banking as she is not well conversant with such internet transactions but the concerned bank provided her the same. The said F.D account has been premature and the OP No.1 Bank failed to provide security to the account of the complainant. It is a clear example of deficiency in service by the OP No.1 bank. While opening the bank account with the OP NO.1 the complainant provided a mobile number being 94770266332 under the BSNL. The SIM card of the said mobile was purchased by her mother by producing the photo copy of her Aadhar Card. The complainant used the said SIM card from her mother. The complainant came to know that the service provider blocked the impugned mobile number as a result of which she has been deprived of receiving message of such fake transaction. After enquiry it appears that on the basis of fake G.D.E entry and a photo copy of fake aadhar card the OP No.2 BSNL, S.D.O Telephones, BSNL provide the SIM card to a fake customer who procured false documents and blocked the old connection. As a result the miscreants by using the said mobile number through mobile banking transferred a sum of Rs.13,74,000/- for 5 transactions to a HDFC account. The whole fraudulent transactions were made by swapping the SIM card without the knowledge of the customer. The
(3)
CC/11/2023
miscreants managed to get a new SIM card from the BSNL service provider by producing the false diary along with a photo copy of fake aadhar card in the name of Aruna Chakraborty the mother of the account holder . The complainant wondered as to how the miscreants committed such a crime . the OP No.2 failed to provide security of the connection lying before him. It tantamounts to deficiency in service by the OP No.2. In response to the appeal the higher authority of OP No.2 replied that as per information received from the concerned section duplicate SIM against mobile number 9477026332 was issued from Kalyani CSC on 17.12.2022 on the basis of G.D.E of the Dasnagar P.S and Aadhar Card of the customer. Verification of the customer was done with original documents produced by the customer. The OP No.2 without verifying the original documents on the basis of fake aadhar card and G.D.E issued duplicate SIM card to a stranger and blocked the number of bonafide consumer without any verification of documents. The OP No.2 never cared to take police help to trace out the criminal . The complainant informed the matter to different authorities but to no effect. So, the present case is filed. The cause of action for the present case arose on 30.07.2022 and on each and every day till the filing of this case. The complainant prayed for an award for Rs.13,74,000/- together with interest @10% p.a , Rs.10,00,000/- towards compensation for suffering mental pain and agony and Rs.50,000/- towards cost of litigation.
The OP No.1 Jana Small Finance Bank Limited preferred not to contest the case and as such the case is heard ex-parte against OP No.1 vide order no.6 dated 10.04.2023.
OP No.2 S.D.O Telephones BSNL, Kalyani contested the case by filing W/V, wherein they denied each and every allegation. The OP No.2 challenged the case as barred by limitation, res-judicate and estoppels . The positive defence case of OP No.2 is that the complainant Anita Rao is a suspicious woman. While opening her bank account number 3285019477026332 on 30.07.2022 with OP No.1 she did not provide her mobile number or the mobile number of her husband. She did not even disclose that she was using or giving mobile number of some other persons for communications. The complainant consciously not mentioned the date and time as to when she received the information of alleged fraud committed to her bank account or when she received the information of alleged fraud. The complainant did not lodge any written complaint to the Bank Manager or the ombudsman cell of
(4)
CC/11/2023
the bank. The service provider of the mobile no.9477026332 is in no way connected with this alleged incident . Anita Rao was never a customer of BSNL and the OP No.2 had never received any complaint from the customer who was enjoying the said SIM card. The allegation of deficiency in service is false and objectionable, the allegation against OP No.2 is under investigation of cyber crime department. It is not possible for the OP No.2 to take responsibility of the allegation until unless better particulars are provided. The complainant had initially given the mobile number of some other customers to the OP No.1 and thereby she committed a major default . So, the OP No.2 claimed that the case is liable to be rejected and is not maintainable.
The intricate points involved in the present dispute demands for ascertainment of the following points for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The present point relates ascertainment as to whether the present case is maintainable or not.
The OP No.1 did not raise any question regarding maintainability of the case in as much as the case is running ex-parte against OP NO.1.
However, the OP No.2 raised different points regarding maintainability of the case but except one point, Ld. Defence Counsel for the OP No.2 could not challenge the case regarding maintainability .
(5)
CC/11/2023
In course of argument the Ld. Defence Counsel argued that the complainant is not a consumer under the C.P Act. He further argued that the alleged phone through which the alleged fraud is claimed to have taken place actually does not belong to the complainant. The SIM Card of the said phone bearing no. 9477026332 actually stands in the name of the mother of the complainant.
Ld. Defence Counsel for OP No.2 in course of argument also raised a question that the complainant has no locus standi to file the present case.
The complainant in course of argument filed one affidavit sworn before first class Judicial Magistrate wherein Aruna Chakraborty the mother of the complainant stated inter-alia that her husband H. Chakraborty died living behind , Aruna Chakraborty (wife), Anita Ganguly daughter, Anita Rao (Daughter) and Achyut Chakraborty (Son). There are no legal heirs of H. Chakraborty except those persons.
From the aforesaid affidavit it is clear that the complainant is a daughter of Aruna Chakraborty in whose name the SIM card of the disputed mobile phone belongs.
The complainant filed the present case as a consumer due to alleged Commission of fraud from her bank account regarding withdrawal of certain money from the OP NO.1 bank. Thus it is the complainant, from whose account the money is claimed to have been withdrawn by fraudulent transaction. So save and except the complainant no other persons has grievance against the alleged fraudulent transaction. There is no denial in the fact and statement that the complainant had an account with the OP No.1 bank wherefrom the said sum of Rs.13,74,000/- has been fraudulently withdrawn.
The OP No.1 bank where the said money was lying could not deny the said fact or any other allegations regarding the fraudulent transaction. So, the dispute centres around the monetary transaction. In such a peculiar facts and circumstances of the case the complainant is no doubt consumer of the OP No.1 bank.
The crux of the argument which Ld. Advocate for the OP No.2 advanced , goes to mean that since the SIM card through which the alleged fraudulent banking transaction took place was belonged to the mother of the complainant, so she (complainant) is not a consumer.
(6)
CC/11/2023
The argument does not affect the merit of the case in as much as it is the specific allegation that the alleged fraudulent transaction took place through internet banking and by using the mobile number 9477026332. The OP No.1 never said that the complainant used the mobile number which does not have any existence . The mobile number is given for certain purpose of the transaction with the bank. The OP No.1 could not establish that the complainant using a false mobile number or any mobile number which disentitle her to be a customer . A person can be customer of the bank even without using a mobile phone if she prefers not to use any internet banking.
There may have some customers who does not have or may not have any cell phone or smart phone but the banking regulation does not provide for having a cell phone compulsorily .
So, the points and the dispute which is the centre point of the case in hand relates to fraudulent withdrawal of money from the OP No.1 bank. And the money which is alleged to have been withdrawn actually belongs to the account of the complainant. Save and except the complainant no other person has claimed that claimed that account or raised the grievance .
The aforesaid discussion leads to the interference that the complainant is a consumer under the C.P Act.
Point no.1 is accordingly answered in affirmative and decided in favour of the complainant.
Point No.2&3.
Both the points have very close nexus and as such these are taken up together for brevity and convenience of discussion.
The complainant in order to substantiate the case proved different documents.
No.1 is the statement of account of Bank of the complainant.
No.2 is the letter of complaint to Kalyani Cyber Crime P.S, Kalyani , Nadia by the complainant dated 24.12.2022.
No.3 is the FIR.
No.4 is the letter to the OP No.1 Bank by the complainant dated 24.01.2023.
No.5 is the copy of track report.
(7)
CC/11/2023
No.6 is the letter to the S.D.O Telephones , Kalyani BSNL by the complainant dated 24.01.2023.
No.7 is the track report of the aforesaid letter showing service.
No.8 is the Aadhar Card of Aruna Chakraborty.
No.9 is the Aadhar Card of Anita Rao.
No.10 is the letter by Aruna Chakraborty to the O.C Dasnagar P.S.
No.11 is the letter e-mail message for duplicate SIM issued without verification.
No.12 is the letter to the BSNL dated 06.01.2023 by Anita Rao.
No.13,14&15 all are e-mail documents along with the track report.
The complainant also filed an affidavit in course of trial regarding the legal heirs of Aruna Chakraborty .
It is the specific case of the complainant that a sum of Rs.13,74,000/- had been withdrawn from her account through 5 transactions by swapping her mobile number of the certain provided by the OP No.2.
From the document number 1 it is well established that the complainant Anita Rao had a bank account with the OP No.1 bearing account no. 3285019477026332. As per the said statement of account the complainant had a balance of Rs.13,74,472/-. It is further evident from the said statement of account that five transactions took place on different dates where by a sum of Rs.13,74,000/- had been debited from the account of the complainant through RTGS, IMPS and other modes electronic transactions.
The OP No.1 Branch Manager Jana Small Finance Bank Limited did not deny the said fact that the complainant had a credit of Rs.13,74,000/- in her account under the OP No.1 bank. There is also no denial that the said sum of Rs.13,74,000/- was fraudulently withdrawn by the miscreants and that the said money was actually standing in the name of the complainant Anita Rao .
It is the settled position of law that admitted facts need not be proved. Since the OP No.1 bank preferred not to contest the case , so the said averment of the complainant about withdrawal of the said
(8)
CC/11/2023
money by the miscreants from her account without her consent stands well established . However, even for the sake of argument if it is presumed that the onus lies upon the complainant to prove her case , in that case also the complainant proved the best document to substantiate the case.
After the said fraudulent transaction the complainant immediately lodged a complaint to Kalyani Cyber Crime P.S on 24.12.2022 which was registered as Nadia Cyber Crime P.S case no. 26/2022 dated 24.12.2022 u/s 419/420 of IPC. The case is still under investigation and the fate of the case is yet to be decided . However, there is no document to show that the case has been ended in final report. And as such the veracity complaint and the FIR stands undiscarded .
It further appears that the complainant lodged a complaint to the Branch Manager of OP No.1 Bank stating inter-alia the entire incident and with a request to enquire into the matter and return the money to her and in default , she would take recourse of law.
The OP NO.1 bank could not deny the said allegation made out in the complaint letter by the complainant to the OP No.1 dated 24.01.2023. The complainant also lodged written complaint to the OP NO.2 S.D.O Telephones BSNL to trace out the crime.
The complainant categorically pleaded and alleged in the letter of the complaint that the OP NO.2 is the service provider i.e. service provider of phone no. 9477026332. The whole fraudulent transactions were made by swapping the SIM card without the knowledge of the customer. The miscreants manage to get a new SIM card from the BSNL Service Provider by procuring a false diary along with a photo copy of fake aadhar card in the name of Aruna Chakraborty the mother of the account holder . The OP No.2 being the service provider blocked the service of the said phone as a result the customer failed to receive message of those fraudulent transaction as stated above. The OP No.2 failed to provide security of the connection in the phone number. It tantamounts to deficiency in service on the part of the OP No.2.
Ld. Defence Counsel for the OP No.2 raised strong objection in regard that the complainant has no locustandi to file the present case because the SIM card actually was issued in the name of the mother of the complainant. So, the complainant is not a consumer of OP No.2.
(9)
CC/11/2023
I have already discussed earlier in regard to the said point. However, it is made clear that the present case is filed by the complainant as a customer of OP No.1 bank with whom the complainant had deposited money of Rs.13,74,000/- which has been fraudulently withdrawn without her consent. The OP No.1 did not contest the case. OP No.1 also not denied that the complainant is not their customer. So, the relation between OP No.1 and the complainant is well established to bring them within the purview of the C.P Act. So, under no stretch of imagination the complainant cannot be left out of the purview of consumer.
It is important to consider that for being a customer he/she need not give the personal phone number only. For opening a bank account one phone number is required to be mentioned but there is no strict rule that the said phone number should be personal phone of the customer. There are some poor families where there is only one phone for the whole family and in such case one phone is used by the whole family and same phone number is given in different accounts of the bank.
OP NO.1 did not plead that the complainant violated the terms and conditions of the OP No.1 bank to maintain the account by providing any false mobile number or mobile number of a different persons .
So, the argument of Ld. Senior Defence Counsel for the OP No.2 does not reduce the weight of the case of the complainant due to using the phone of her mother in respect of her bank account.
Ld. Defence Counsel for OP NO.2 further drew attention of the Commission in regard the authorisation letter given by Aruna Chakraborty the mother of the complainant where by the complainant was empowered to use the mobile number 9477026332 for her all officials purpose on the ground that there is no chance of misuse of the said mobile number if it is used by the complainant.
Ld. Defence Counsel for OP No.2 argued that the said authorisation letter is manufactured .
The argument is not acceptable in as much as after comparing the signature of Aruna Chakraborty in the affidavit dated 20.03.2024 and the said authorisation letter dated 15.07.2022 it appears that there is nothing major inconsistency in the signature of Aruna Chakraborty in the said two documents. The OP No.2 could not prove any other documentary evidence from which any interference can
(10)
CC/11/2023
be drawn that the said authorisation letter was manufactured by the complainant for the purpose of this case.
Ld. Defence Counsel further argued that the complainant answered in against question no.4 of the complainant in interrogatories .
As per question no.4 “Is the SIM No. 9477026332 issued in the name of the complainant? Does the complainant have any legal authorisation in her name issued by Aruna Chakraborty to use the SIM. Answer No.”
It is fact that the said SIM card does not belong to the complainant but the complainant duly proved the authorisation letter to use the SIM card by the complainant.
As per the rules of evidence if there is any contradiction between the pleadings and evidence, when there is a particular document then the documentary evidence should be taken into consideration.
That apart the Commission has already discussed that it is not compulsory that for the purpose banking transaction use of mobile phone is essential. However, for the net banking and communication one phone number is required in the KYC form. And accordingly, the complainant had mentioned the aforesaid phone number which the OP No.1 bank accepted and permitted the complainant to use the said phone number.
Ld. Defence Counsel also argued that the complainant never informed to the bank or OP No.2 that she is used her mother’s SIM card .
The complainant proved two documents being letter dated 24.01.2023 to the OP No.1 about the fraud transactions taken in her bank account on 19.12.2022. The OP No.1 did not reply to the said letter.
The complainant also informed to the OP No.2 through her letter dated 24.01.2023 in writing about the entire incident of fraudulent transaction.
It is also the specific argument of the Ld. Senior Defence Counsel that the complainant could not prove any power of attorney to run the case by the complainant.
(11)
CC/11/2023
The argument has no reasonable force in as much as the complainant as a consumer of OP No.1 filed the case against the fraudulent money transaction and for getting refund of the said money from the OP NO.1 bank. And moreover, it is the argument of the Ld. Advocate for OP No.2 that OP No.1 is the custodian of the money. So, the complainant is a competent person to file the present case.
Ld. Advocate for the complainant argued that the OP No.2 did not exercise their duty properly. They issued a new SIM card which belongs to the mother of the complainant without verifying the necessary documents . In this regard Ld,. Advocate for the complainant filed one copy of Aadhar Card in the name of Aruna Chakraborty which is fake . From a close scrutiny of the said copy of Aadhar card it appears that although the Aadhar card issued in the name of Aruna Chakraborty yet the name of husband is different to some extent. The Aadhar Card of the mother of the complainant Aruna Chakraborty is 368073261740 whereas the Aadhar card number of the alleged fake Aruna Chakraborty by which a new SIM Card was taken is 945641122416. The date of birth of Aruna Chakraborty the mother of the complainant as per the Adhar Card is 01.01.1941 whereas the date of birth of the alleged fake Aruna Chakraborty is 08.03.1954.
So, the argument of Ld. Advocate for the complainant has reasonable force and the case of the complainant is strengthen by this two documents. However, the said criminal case is still under investigation and as such the investigating authority are at liberty to draw the final conclusion in regard to the said Cyber Crime .
Ld. Advocate for the complainant in support of the case referred to a decision reported in Civil Appeal No.9352 of 2009 wherein it was held that the bank is responsible for unauthorised siphoning of large amount of money without the consent of the customer of the bank.
The said case law squarely applies here.
The opposite parties could not refer to any ruling to counter the said case law.
In the backdrop of the aforesaid discussion and after assessing the observation made hereinabove the Commission comes to the finding that the OPs have acted in a manner which tantamount to deficiency in service .
(12)
CC/11/2023
Thus the complainant successfully proved the case against the opposite parties upto the hilt.
Point no.2&3 are answered in affirmative in favour of the complainant.
Consequently, the complaint case succeeds on contest against OP No.2 and ex-parte against OP NO.1.
Hence,
It is
Ordered
that the complaint case no.CC/11/2023 be and the same is allowed on contest against OP No.2 and ex-parte against OP No.1 with cost of Rs.10,000/- (Rupees ten thousand). The complainant do get an award for a sum of Rs.13,74,000/- (Rupees thirteen lakh seventy four thousand) together with interest @ 10% p.a from 30.07.2022 till the date of payment against OP No.1, Rs.1,00,000/- (Rupees one lakh) towards compensation for deficiency in service and mental pain and agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost. OP NO.1 is directed to pay Rs.14,84,000/- (Rupees fourteen lakh eighty four thousand) to the complainant within 30 days from the date of passing the final order together with interest as above failing which the entire award money shall carry an interest of 10% p.a from the date of final order till the date of its realisation.
(13)
CC/11/2023
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
........................................
MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
