DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 08/2014
Date of Filing: Date of Admission Date of Disposal:
10.01.2014 15.01.2014 19.09.2014
PETITIONER = Vs. = O.Ps.
Ram Awtar Ramsisaria 1. HDFC Bank Limited
CF-336, Salt Lake City, CJ-166, Sector-II, Salt Lake City
Kolkata-700064. Kolkata-700091,
P.S.-Bidhannagar(East).
2. Dona Chemical
435, Jessore Road, Kolkata-700055
And also at P-48, Bangur Avenue,
Block-B, Kolkata-700055.
3. Bank of Baroda
Through Branch Manager,
Bangur Avenue Branch,
3, Bangur Avenue, Block-A,
Kolkata-700055, P.S.-Lake Town.
J U D G E M E N T
Facts of the case, in short, is that OP No-1 is the branch Office where the complainant maintained a saving bank account and the OP No-2 is the Dona Chemicals in which name the VAT amount has been deposited through the bank i.e. the OP No-3 as per the record available with the complainant.
The complainant is maintaining saving bank account being account no 02771600004963 and also availing HDFC bank’s net Banking services since 2008 and the complainant is using the same without any problem or whatsoever in any point of time and the complainant was using the banking services by the OP No-1 satisfactory.
On 05.09.2013, at about 18:34:30 hours, West Bengal professional Tax, amount of Rs 2, 500/- was making payment through on line from the HDFC savings Bank account No. 02771600004963 and suddenly the process of making
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payment of professional tax became hanged and at 18:35:01 hours, a receipt copy has been generated, showing in the name of Dona Chemical, i.e. the OP No-2 herein and the payment has been made for the amount of Rs 63, 429/- and the said payment was made from the Bank of Baroda, i.e. the OP No-3 herein, but most surprisingly the said amount of Rs 63, 429/- has been deducted from the saving bank account of the complainant and it is also to be mentioned that the said amount of Rs 63, 429/- was deposited in the name of the OP No-3 in the head of West Bengal value added Ta, though the payment was making to then account of West Bengal Tax through on-line.
On the same time, i.e. on 05.09.2013 at 18:52 hours, i.e. within 17 minutes from the time of incident, through the authorized person of the complainant, intimated the matter over phone and also send the soft copy to the OP Bank through e-mail for redressal of the grievance and on 07.09.2013, the OP bank through e-mail replied to generate fresh e-challan and further advised for destroy the earlier e-challan generated in the name of the OP No-2 and by e-mail reply dated 09.09.2013, the complainant stated the irrelevancy of the fact and illegal deduction of the amount from the bank account of the complainant and further requested for immediate credit of the amount of Rs 63,429/-to the bank account of the complainant since the OP bank illegally deducted the said amount from the bank account of the complainant.
On 10.09.2013 the complainant made the written representation to the OP bank with a request to credit the amount of Rs 63,429/- illegally deducted by the OP No-1 and the said letter also send to the OP No-1 through speed post but even after receiving the said letter, the OP bank failed and neglected to do any needful and again on 12.09.2013, the complainant issued the letter with the same request for crediting the illegally deducted amount to the bank account of the complainant and on 21.09.2013 also send letter to the OPs with the same request but no effective steps has been taken by the OPs.
Since no effective steps was taken by the OP bank for which again on 17.10.2013 complainant requested to the OPs for crediting the illegally deducted amount of RS 63,429/- to the bank account of the complainant and the said letter was duly been received by the OP bank and the complainant has also lodged the general Diary to the Bidhannagar East Police Station on 18.10.2013 against the OP No-1 for illegal deduction the amount of Rs 63,429/- from the bank account of the complainant for taking necessary steps and also for commencement of enquiry over the subject matter.
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The OP bank letter dated 19.10.2013 issued to the complainant straight way denied their liability and tried to make understand to the complainant regarding some mandate and process for making on line transaction to the complainant, though the fact remain is that the complainant was having long experience of making payment of tax and making on line transaction through online and ultimate result is that the OPs denied to credit such amount of Rs 63,429/- to the bank account of the complainant and again by letter dated 26.10.2013 the OPs intimated to the complainant by saying their unwillingness to credit the amount to the bank account of the complainant.
The complainant has also issued the letters to the OP No-3 with a request to furnish the bank statement in the name of the OP No-2 on and from 05.09.2013 to 06.09.2013 has ever been debited from the bank account of the OP No-2 and the said amount paid and/or transferred to the W.B. value added Tax or not but in reply to the letter dated 11.12.2013, the OP No-3 issued the letter to the OP No-2 and a copy of which served upon the complainant wherein the OP No-2 for furnishing the bank statement dated 05.09.2013 to 06.09.2013 to the complainant. Hence this case.
OP No-1& 3 are contested the case by filing separate written version.
OP No-1 stated that the complainant is not maintainable in law and on facts. The complainant cannot be termed as “bonafide consumer” within the meaning of the Consumer Protection Act, 1986. On this very ground instant complaint case is liable to be dismissed with costs.
A saving plus account is maintained by an individual but admittedly account is being used for commercial purposes i.e. for payment of West Bengal Professional Tax in the name of P P Products Ltd i.e. a commercial organization paying applicable Tax for their business purpose through account of complainant and hence complainant cannot claim that the account held with answering OP is used by him as an individual savings account in his own personal name and thus complainant does not fall under the purview of the Consumer Protection Act, 1986 as amended up to date, as per the provisions of the section 2(d) of the Act and the explanation thereof. Moreover, the account holder’s usual mode of account operation which is being carried out by his employee also does not entitle him for any exceptional category to get the benefit of an individual maintaining such account for his own live hood and that of his family.
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Further perusal of statement of account and admission of the complainant as contained in complaint filed before Ld Forum also reveals and establishes that the account holder is running business not only for his own livelihood rather indulges in commercial dealings at a large scale wherein admittedly employee. It is crystal clear that account holder is a using savings plus account for commercial activities and purposes and carrying on business and hence cannot fall within the ambit of provisions of Consumer Protection Act. As such, by no stretch of reasoning can the provisions of the Consumer Protection Act, 1986 be invoked in the instant case. On this very ground instant complaint case is liable to be dismissed with costs.
It is relevant to point out here that in Net Banking transactions bank is not manually involved in processing the transaction inputted by logger rather bank is under obligation to validate the transaction if account is logged in. most particularly the net banking logion cannot take place without inputting correct PIN & account sensitive details of customer which is privy to customer himself unless it is compromised by him, which in the instant matter knowingly compromised by the complainant with his accountant and for such negligent act of account holder Bank cannot be fastened with deficiency in service and /or cannot be held liable or responsible for the loss, if any, suffered by account holder because of his own act of negligence.
OP stated that the for any successful Net Banking Transaction to be carried out, a valid customer ID and internet Banking password (IPIN) need to be entered which is privy only to the complainant and as the alleged transaction was done by the complainant using correct Customer ID and IPIN, the OP duly validated the same. If the complainant denied that he had not done the alleged transaction then the complainant’s account sensitive details must have been definitely compromised. Therefore, there can be no question or deficiency in service or negligence on part of the bank.
As per OPs records, the alleged funds were transferred to WBCTD. The said amount has already been transferred into the account to Government Authorities and is not possible for the OP to recover the same being a Banker.
It is stated that the OP is neither involved nor responsible for the alleged/disputed transaction and hence deny accede to any of the complainant’s claim with respect of the crediting disputed amount to the complainant’s account. As per the OP, the alleged transaction had been a validity executed transaction using complainant’s customer ID and Net Banking password only to the complainant or to the person to whom the complainant had disclosed.
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OP No -3 in his written version stated that the complainant asked for the copy of the bank account statement of M/S Dona Chemical but the OP No-3 without permission of the customer cannot hand over the copy of the statement to the third party. In this regard the OP No-3 made correspondence with Dona Chemical on 12.12.2013 asking form their permission in the matter of providing the copy of the bank statement of said Dona Chemical as per their demand, but no permission was given till date and as such the OP No-3 could not provide the said statement to the complainant.
The complainant is not the consumer under the OP No-3 as the complainant did not avail any service from the OP No-3 against consideration.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for. ?
Decision with Reasons
Complainant has examined himself by filing affidavit in chief. It appears that complainant has submitted all the statements and the correspondence with the Bank OP No-3. OP No-3 furnished a bank statement in the name of Dona chemical for the period on and from 05.09.2013 to 06.09.2013. This statement shows that no amount of Rs 63,429/- was debited from the bank account of the OP No-2 to the West Bengal Value Added Tax Authority but according to the complainant the amount of Rs 63,429/- has already been paid in the account of OP No-2 to the directorate of Commercial taxes in the ID No 19672074040 on 05.09.2013 at about 18:34:38 hours. Ld Lawyer for the complainant submitted that the amount in question has been deposited to the account head of the OP No-2 showing deduction of the said amount through the OP No-3 but actually the said amount has been debited from the bank account of the complainant. The complainant send a letter to the OP No-2 on 03.12.2013 with an intimation for giving instruction to the OP No-3 for making payment of the disputed amount from the Bank account of the OP No-2 to the bank account of the complainant Salt Lake Branch since the payment of VAT was made in the name of the OP No-2 but the amount was not deducted from the bank account of the OP No-2 maintaining OP No-3 and the said amount was illegally debited from the account of complainant. A letter was send to the OP No-2 on 03.12.2013 but the said was returned with post remarks “not claimed”. Second time complainant issued letter to the OP NO-2 which was returned “not claimed”. According to the complainant the payment was made in the name of OP No-2 and the payment received was generated in the name of OP No-2 showing that the payment has been made through OP No-3 but the OP No-1 deducted the said amount from the account of the complainant.
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According to the complainant one copy of the payment receipt has been generated, showing in the name of OP No-2 to the account of West Bengal Value Added Tax and by also showing that the payment was made through Bank of Baroda within a period 0:30 seconds. The amount was debited from the account of the complainant wrongly.
According to the complainant OPs committed gross deficiency in service and adopted Unfair Trade Practice towards complainant. It is stated by the complainant that the complainant has long experience to use online payment system but due to default in system as provide by the OP No-1 the payment was debited wrongly from the account of the complainant.
After going through materials on record and the documents placed before us we are of the view that OP No- 1 & 2 are liable and responsible for refund of the amount of Rs 63,429/- along with interest to the complainant.
Hence
It is ordered,
that the complaint and same be allowed on contest against the OP No-1 and 3 and exparte against OP No-2.
OPs jointly and severally are directed to make payment of Rs 63,429/- along with 9% interest from 06.09.2013 till the date of actual payment to the complainant.
OPs jointly and severally are directed to compensation of Rs 50,000/- and litigation cost Rs 5,000/- within one month from the date of this order, failing which OPs will be liable to pay Rs 100/- daily as punitive charges till the final payment is made which will be deposited in the Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
