C.F. CASE No. : CC/2012/87
COMPLAINANT : Laxman Kumar Sen,
S/o Late Nemai Sen,
Vill. Badrapara, By-Lane,
P.O. & P.S. Nabadwip,
Dist. Nadia
OPPOSITE PARTY/OP : Branch Manager,
H.D.F.C. Bank Ltd. (Nabadwip Branch)
101/1, Jawaharlal Nehru, Road,
P.O. & P.S. Nabadwip, Dist. Nadia,
PIN – 741302
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SRI SHYAMLAL SUKUL, MEMBER
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 27th August, 2013
: J U D G M E N T :
This case was filed by one Sri Laxman Kumar Sen, S/o Late Nemai Sen, a resident of Bhadrapara Bye Lane, P.O. & P.S. Nabadwip, Dist. Nadia against H.D.F.C. Bank Ltd (Nabadwip Branch) with an allegation of deficiency in service.
The genesis and sequence of the claim made by the complainant is this the complainant/petitioner had opened a Savings Bank Account with net-banking facility with H.D.F.C. Bank Ltd. Nabadwip Branch under Savings Bank Account No. 24911570002416 on 17.08.12 and this was a joint account. The complainant / petitioner was having a credit balance of Rs. 5,01,498.92 in his account on 26.09.12. The complainant went to the ATM counter of the said bank and inserted ATM card to withdraw Rs. 5,000/-. But to his astonishment the complainant had neither get any money nor his ATM card was returned. Thereafter, he contacted the concerned authority of the said bank. On enquiry it transpired that no ATM transaction of Rs. 5000/- was carried out by the complainant on the aforementioned date, but on 26.09.12 three debit transactions of Rs. 50,000/- each were carried out using net-banking. The grouse of the complainant was that he never carried out any transaction by using net banking. The corollary of that the complainant lodged a complaint on 20.09.12 with the OP bank in this context. However, the OP bank insisted that there was any scope for the bank to do anything, as in the net-banking transaction bank was not manually involved and the most particularly the generation of IPIN could not take place with the account sensitive details of the customer which was privy to the customer himself unless it was compromised by him knowingly / unknowingly and for such act the OP bank was not liable and the entire onus lied with the complainant. Ultimately, the complainant filed a petition of complainant under Section 12 of the Consumer Protection Act, 1986, before this District Forum, praying reliefs as stated in the petition of complaint.
On notice, the opposite party entered appearance and contested the case by filing written version, challenging, inter alia, the very maintainability of the case. The opposite party bank have got to say that the present proceeding is misconceived, malafide and groundless and unsustainable in law. On such grounds the opposite party prays straightway dismissal of the case.
The core points for consideration before us are:-
- Whether there was any negligence / deficiency in service from the side of the opposite party?
- Whether the complainant is entitled to get any relief, if so, to what extent?
DECISION WITH REASONS
At the very outset, let us note that in order to substantiate their respective cases the parties did not prefer adducing any verbal evidence despite opportunity given to them. They relied upon documentary evidences only. Status of the complainant / petitioner as “consumer” is nowhere challenged by the opposite party. Documents on record indicate, beyond doubt, that he happens to be a “consumer” as per meaning of the term laid down under Section 2(d) of the Consumer Protection Act, 1986.
Other question relates to the points of limitation. To get relief under Consumer Protection Act one is to bring one’s petition of complainant within a period of two years from the date of cause of action has arisen. On this point too the present petitioner is in the right side of the matter.
The fate of the present complainant hinges on the answer to the question as to whether the opposite party bank was justified in debiting Rs. 15,0000/- from the complainant’s account and by doing so whether the OP bank have committed any negligence / deficiency in service.
Ld. Advocate representing the complainant contends that it is a glaring example of utter negligence on the part of the OP bank as because three debit transactions of Rs. 50,000/- each were not carried by the complainant using net banking on 26.09.2012 though it is reflected in the statement of amount of the complainant. It is curious that the said alleged transactions were carried out using complainant’s I.D. and Net banking Pin (Password). But the fact is that the complainant has not yet opened the sealed cover of the Net banking Pin (Password) which is still kept intact with him. In order to substantiate his case the complainant has submitted a photo-copy of the said sealed cover containing Net banking Pin (Password). Hence, it was absolutely impossible for the complainant to carry out the aforementioned transactions without knowing the Net banking Pin (Password). The peculiar facts and circumstances do point out to a possibility of collusion on the part of some employees of the OP bank with the person committing those fraudulent transaction / transfer of Rs. 1,50,000/- from the complainant’s account.
Ld. Advocate representing the complainant further contends the OP bank was so negligent that the OP bank did not generate SMS alerts instantly at the time of fund transfer though it was mandatory on the part of the OP bank. Thus, the opposite party bank fall squarely within the mischief of unfair trade practice and deficiency in service. Under the circumstances the complainant is entitled to get compensation for mental harassment and cost of the proceeding in addition to the loss suffered by the complainant.
In support of his contention ld. Advocate has relied upon the judgment in the matter of Bhadra N. Dalal vs. Bank of India IV (2011) CPJ 330 NC and in the matter of S.B.I. vs. Hariom Tiwari & Anr. IV (2010) CPJ 275 (St. Com.) whereby withdrawal from ATM has held fraudulent. On perusal of the above cited decisions, we find that the fact situations are different and hence the same cannot be applied as such in the instant case.
In rebuttal ld. Advocate representing the OP bank humbly submits that on perusal of the statement of account of the complainant clearly reveals that no ATM transactions of Rs. 5,000/- was ever carried out by the complainant on 26.09.12. This itself proves that the complaint is nothing but a false and concocted story built up for wrongful gain.
As regards the said alleged net banking transactions / transfer ld. Advocate representing the OP bank submits that in the present case there is hardly any scope for the bank to do anything, as in the net banking transactions bank is not manually involved and most particularly the generation of PIN cannot take place with amount sensitive details of customer which privy to customer himself unless it is compromised by him knowing and / or unknowingly. It is indeed strange that complainant himself admitted this vide letter dated 27.09.2012 (Annexure-9). Wherein he stated “…………… it appears to be carried out by use of customer ID and Net banking Pin (Password) illegally acquired from me by means of phising Attack / Mail or through other such illegal means.”
Ld. Advocate representing the OP bank further submits that there is not a single whisper within the four corners of the complaint that the complainant divulged his personal information to a fictitious telephone call which helped the culprit to hack his bank amount successfully. It is very much apparent the complainant has been ignoring the fact that how the actual culprits have been successful in hacking into the complainant’s bank account by way of extracting his personal information from him over phone as admitted by the complainant in his handwritten complaint written in Bengali in the Bank’s “Complaint Book” and the Complainant has also admittedly divulge his personal information to the said fictitious telephone call (Annexure-3). Divulging account sensitive information to third party is a negligent act on the part of the account holder / complainant. Accessing account on line is secured by inputting correct account sensitive details by the person accessing through net without any physical verification. Account sensitive details are only known to the account holder and sharing of personal account sensitive details with anyone exposes account holder to such risk.
In the present case OP bank received a request on 26.09.12 for adding the third party beneficiary for the purpose of transferring funds to the respective third party accounts at the relevant point of time through Net banking. As a mandatory compliance formality the opposite party bank had sent system generated ‘SMS Service’ to the complainant before accepting the said third party in the list of the acknowledged ‘Third Party Beneficiary’ with respects to the complainant’s account as ‘Caution’ and/or ‘Alert’. This gives the account holder sufficient opportunity to revert whether the request was genuinely generated by the said customer of the bank for not. The complainant’s account was no deviations from this normal system.
As a mandatory compliance formality the bank also issued ‘SMS’ system generated alerts instantly at the time of funds transfer, where there was no manual intervention and there could be no delay at the end of the bank which reached the customer instantly unless any fault at the end of the service provider.
As far as the SMS alerts is concerned ld. Advocate representing the OP bank has drawn our attention to the fact that the complainant admittedly mentioned in the ‘Complaint Book’ of the OP bank that his mobile number registered with the bank suffered some problems with the telephone provider on 25.09.12 which could only be resolved on 26.09.12 after the alleged transaction took place in the account when the complainant submitted required documents with service provider but nowhere in the complaint this was mentioned by the complainant.
Ld. Advocate representing the OP bank further contends that it is indeed strange that the complainant has not yet opened his Net banking Pin (Password) which is still kept in sealed condition though he had opened the said account for availing the net banking facility. To be noted here IPIN is kept in sealed condition is not the criteria for net banking as IPIN can also be generated through mobile / net by providing account sensitive details. Admittedly, in the present case IPIN was also generated through mobile / net banking system through online requesting OT.P(one time password) sent from OP bank to customer’s registered mobile number. OTP is mandatorily required to add beneficiary to the account.
Ld. Advocate representing the OP bank vehemently resists the complainant’s claim that some employees of the OP bank were involved in the said fraudulent transaction / transfer and submits that this allegation is out and out false and concocted as because none in the bank knows about any password which is customer’s privy and anyone has any scope to know the same since such are absolutely computer generated without having any human intervention. That apart IPIN (Password) is stored by the bank by using encryption technology such that it is not accessible to anyone even the system administrator.
In the final limb of argument ld. Advocate representing the OP bank contends that the complainant was cautioned about internet frauds such mal-practice at the time of opening the said net banking account by providing complainant with literature / brochure “Secure Banking” as well as the “Terms and conditions of Net Banking”. In the said terms and conditions it is categorically mentioned that in such cases of internet frauds the bank will not be liable. Sl. No. 14.20 of the ‘Term and Conditions’ reads as under:
“Misuse of Cust ID and PIN”:
I acknowledge that it any third party obtains access to my cust id and IPIN: such third person would be able to provide payment instructions / other instruction to the Bank. I shall ensure that the Terms and conditions applicable to the use of the cust id and IPIN as contained herein are complied with at all times.
Interest Frauds:
The interest per se is susceptible to a number of frauds, misuse, hacking and other actions that could affect with payment instructions to the Bank. Whilst the bank shall aim to provide security to prevent the same, there cannot be any guarantee from such internet frauds, hacking and other actions, that could affect payment instructions / other instructions of the Bank including result in delay or failure in processing that instructions I shall separately evolve / evaluate all risks arising out of the same and the Bank shall not be responsible for the same. I understand that doing a Net Banking transaction at a cyber café / shared computer terminal is risky …..” Under the facts and circumstances the OP bank cannot be fastened with deficiency in service / unfair trade practice.
We have given our anxious thought to the arguments advanced by the ld. Advocate for the both sides and also to the facts of the case and evidence on record.
A plain reading of the aforesaid extract of the terms and conditions of net-banking reveals that the complainant is a guilty of negligence. Despite knowing all ins and outs if the said internet frauds the complainant was not careful to avoid the said frauds rather he had divulged his personal information to a fictitious telephone call which helped the culprit to hack his account successfully. In fact the complainant himself is the architect of the awful blunder.
That apart the petition of complaint is a replete with repeated reference to the remark that the OP bank were grossly negligent and deficient in rendering their services and as a result, thereof the complainant suffered heavy losses. But curiously enough the complainant is nowhere given the concrete instance of such negligence of the OP bank. Mere citation of words ‘negligence’, ‘deficient in rendering services’ cannot be sufficient unless it is shown precisely as to how such negligence was actually displayed or reflected in the acts of the OP bank. “A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be proved. It is the obligation of the complainant to provide facta probanda and facta probantia (2009) CPJ 581 (SC). In the present case the complainant has miserably failed to prove his case by adducing cogent and reliable evidence.
In view of the solid and unflappable evidence and the contention of the ld. Advocate for the OP bank pale into insignificance. The case of OP bank is supported by cogent and plausible evidence. It is important to mention here that the aforesaid conspectus of the facts shows that the entire problem cropped up due to the complainant’s own negligence and fault. It is well-settled law that nobody can be rewarded for his own faults. None acquires a right of action for his own wrongs. Therefore, the complainant in the circumstances of the case cannot claim any compensation and in view of his fault and negligence there is no deficiency in service on the part of the OP (L.I.C.I. vs. D.G.K. Murthy, Principal V.R. College III (2001) LPJ 207 (AP).
In view of above observations we feel that the case of the complainant bears no merit at all for which the complainant is not entitled to get any relief and the case is liable to be dismissed. Accordingly, it is
Ordered,
That the present case stands dismissed on contest. No order is passed as to costs.
