PER:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 and 38 against the opposite parties on the allegations that the complainant is running a small trading company for his self need and is his only source of livelihood and working exclusively for earning his livelihood by means of self employment. The complainant firm is having the bank account with the opposite party No. 1 having account No. 50200042658076. Copy of account statement is Ex. C-2 and he is the consumer as provided under the act and is competent to invoke the jurisdiction of this Commission. Affidavit of complainant is Ex. C-1. The complainant on 11.8.2021 visited opposite party No. 1 for getting the account statement of above said bank account and upon receiving the same he noticed that a total amount of Rs.19,80,000.30 Paise was transferred from the account of complainant firm to some other unknown account without the knowledge and authentication of the complainant in various different transactions starting from 22.7.2021 to 8.8.2021. Copy of the same is Ex. C-3 and even no message for the same transaction was not received on the registered mobile phone that certain transactions are being conducted. Even no OTP was sent on the registered mobile phone regarding any transaction as required by the RBI guidelines. The complainant never ever conducted such transactions. The complainant and his family members immediately informed the opposite party on their toll free number and customer assistance and even wrote a letter to bank manager of the opposite party No. 1 (copy of the same is Ex. C-4). The complainant had also made a police complaint, upon which a FIR was lodged having No. 0202/21 (Copy of FIR is Ex. C-5). Upon investigation the police recovered the source amount in an unknown bank account pertaining to opposite party No. 2 in which the said amount was transferred. The opening sheet and transaction details were summoned in investigation by police from opposite party No. 1 and summoned in investigation by police from opposite party No. 1 and 2 as the transactions took place between the bank accounts of the both opposite parties. Upon investigation the police recovered an amount of Rs. 11,79,000/- and the amount of Rs. 11,52,900/- was released to the complainant upon furnishing Sapurdari bonds in the court of Sh. Rajesh Ahluwalia, CJM, Tarn Taran. The complainant made the protracted futile communications with the opposite parties regarding the release of the remaining amount of Rs. 8,27,100.30 Paise but the opposite party inspite of the RBI guidelines did not reserve the said transactions till the filing of the present complaint. The complainant thereafter is making several futile visits to the opposite parties for the reversal of the said debit entries and the opposite party officials are dilly dallying the matter on one pretext or the other. The aforesaid acts of the opposite parties in not verifying the debit transactions before committing them which the complainant has not made any transaction is an act of deficiency in services, malpractice, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant for which the opposite party is liable to pay the compensation of Rs.6,70,000/- to the complainant. The complainant has prayed the following reliefs:-
- The opposite parties be directed to credit the amount of Rs. 8,27,100/- alongwith interest @ 12% p.a. from 11.8.2021 till realsiation.
- The opposite parties be directed to pay the compensation of Rs.6,70,000/- to the complainant.
- The opposite parties be directed to pay the adequate cost of the litigation.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the complaint is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this Commission. No cause of action has ever arisen in favour of complainant and against the opposite party No.1 to file the present complaint. The complaint is an abuse of process of law and is liable to be dismissed. The complainant has created a false story in his complaint to mislead this Commission by concocting and distorting the facts and circumstances of present case. The complainant does not qualify the ingredients of the valid complaint as envisaged in Consumer Protection Act 2019 as such, the complaint is liable to be dismissed on this ground alone. The present complaint is not covered under the definition of Consumer Protection Act, 2019 as the dispute is qua transfer of amount from the current account of the complainant firm maintained in opposite party Bank. The complainant has alleged that he is the proprietor of complainant firm and is running a small trading company and has a bank account bearing account No. 50200042658076 in the bank of opposite party. It has been further alleged by the complainant that on 11.8.2021, the complainant visited the opposite party No. 1 for getting the account statement whereby he got to know that an amount of Rs. 19,80,000/- was transferred from the account of the complainant to some another unknown account in different transactions starting from 22.7.2021 to 8.8.2021 and the same was without the knowledge of the complainant. The complainant further alleged that no OTP regarding the transactions came on his registered mobile Number. The complainant further alleged that OP No. 1 bank was being immediately informed about the transactions by the complainant. Thereafter, police complaint was lodged by the complainant, it has been further alleged by the complainant that police recovered an amount of Rs. 11,79,000/- and same has been released to the complainant upon Sapurdari bonds in the Hon’ble court of Sh. Rajesh Ahluwalia CJM, Tarn Taran. Upon receipt of complaint from the complainant, the opposite party Bank did an enquiry wherein it was found that the transactions which were alleged by the complainant were done through IMPS transfers and IMPS transactions (IMPS is interbank Electronic Fund Transfer Service) can be done through net banking only wherein username and password to log in to net banking is only known to the account holder/ customer and after logging in the transaction can only be done after receiving OTP on the mobile number of the customer only. In the present complaint the said transactions were done by the complainant/ account holder only which was also evident from the IP address from where the said transactions were done. Moreover, in the enquiry of the bank, no hacking of bank account of the complainant was found by the bank, hence, it can be clearly stated that it was either the complainant who had done these transactions or anyone else on his instructions to whom the complainant shared his confidential details must have done these transactions and OP Bank has no role to play in the said transfers. As and when the complainant requested to block the bank account of the complainant, immediately, it was done by the bank. The present complaint is merely a concocted story which has been manipulated with the intention to defame the opposite party No. 1, to take undue advantage of the complainant own wrong and just to frustrate the process of law. Neither any deficiency in service nor unfair trade practice on the part of the opposite party no. 1, therefore, the present complaint is liable to be dismissed with heavy costs. The prayer of the complainant to direct the opposite party No. 1 to release the amount of Rs. 8,27,100/- and Rs. 6,70,000/- as the compensation to the complainant for mental agony, harassment and for the inconvenience caused to the complainant. However, it cannot be accepted at any stretch of imagination because it was error on the part of the complainant. The complainant himself has done all the online transactions on the disputed dates alleged by the complainant. The complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the opposite party No. 1. Since disputed question of facts are involved in the present complaint which can only be decided by the Civil Court after leading cogent evidence, therefore, the present complaint is not maintainable and this commission does not have the jurisdiction to try and decide the present complaint. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 1 has placed on record authority letter Ex. OP1/1, Copy of Account statement Ex. OP1/2, Affidavit of Harwinder Singh Ex. OP1/3.
3 Notice of this complaint was sent to the opposite party No. 2 but no one appeared on behalf of opposite party No. 2 and consequently, the opposite party No. 2 was proceeded against exparte.
4 We have carefully gone through the record and heard Ld. counsel for complainant and opposite party No. 1.
5 From the combined and harmonious reading of documents and pleadings of the parties is going to prove that the complainant is running a small trading company for his self need and is his only source of livelihood and working exclusively for earning his livelihood by means of self employment. The complainant firm is having the bank account with the opposite party No. 1 having account No. 50200042658076. Copy of account statement is Ex. C-2 and he is the consumer as provided under the act and is competent to invoke the jurisdiction of this Commission. Affidavit of complainant is Ex. C-1. Further the complainant on 11.8.2021 visited opposite party No. 1 for getting the account statement of above said bank account and upon receiving the same he noticed that a total amount of Rs.19,80,000.30 Paise was transferred from the account of complainant firm to some other unknown account without the knowledge and authentication of the complainant in various different transactions starting from 22.7.2021 to 8.8.2021. Copy of the same is Ex. C-3 and even no message for the same transaction was not received on the registered mobile phone that certain transactions are being conducted. Even no OTP was sent on the registered mobile phone regarding any transaction as required by the RBI guidelines. The complainant never ever conducted such transactions. The complainant and his family members immediately informed the opposite party on their toll free number and customer assistance and even wrote a letter to bank manager of the opposite party No. 1 (copy of the same is Ex. C-4). The complainant had also made a police complaint, upon which a FIR was lodged having No. 0202/21 (Copy of FIR is Ex. C-5). Thereafter, police initiated the investigation and recovered the source amount in an unknown bank account pertaining to opposite party No. 2 in which the said amount was transferred. The police recovered an amount of 11,79,000/- and the amount of Rs. 11,52,900/- was released to the complainant by the court of Sh. Rajesh Ahluwalia, CJM, Tarn Taran. The complainant made various requests to the opposite parties regarding the release of the remaining amount of Rs. 8,27,100.30 Paise but the opposite party inspite of the RBI guidelines did not reserve the said transactions till the filing of the present complaint. But till date, the complainant has failed to get his remaining amount of Rs. 8,27,100/-.
6 On the other hands, opposite party No. 1 stated in its reply that no cause of action has ever arose in favour of complainant and against the opposite party No.1 to file the present complaint. The complaint is an abuse of process of law and is liable to be dismissed. The complainant has created a false story in his complaint to mislead this Commission by concocting and distorting the facts and circumstances of present case. The complainant does not qualify the ingredients of the valid complaint as envisaged in Consumer Protection Act 2019 as such, the complaint is liable to be dismissed on this ground alone. The present complaint is not covered under the definition of Consumer Protection Act, 2019 as the dispute is qua transfer of amount from the current account of the complainant firm maintained in opposite party Bank. The complainant has alleged that he is the proprietor of complainant firm and is running a small trading company and has a bank account bearing account No. 50200042658076 in the bank of opposite party. It has been further alleged by the complainant that on 11.8.2021, the complainant visited the opposite party No. 1 for getting the account statement whereby he got to know that an amount of Rs. 19,80,000/- was transferred from the account of the complainant to some another unknown account in different transactions starting from 22.7.2021 to 8.8.2021 and the same was without the knowledge of the complainant. The complainant further alleged that no OTP regarding the transactions came on his registered mobile Number. The complainant further alleged that OP No. 1 bank was being immediately informed about the transactions by the complainant. Thereafter, police complaint was lodged by the complainant, it has been further alleged by the complainant that police recovered an amount of Rs. 11,79,000/- and same has been released to the complainant upon Sapurdari bonds in the Hon’ble court of Sh. Rajesh Ahluwalia CJM, Tarn Taran. Upon receipt of complaint from the complainant, the opposite party Bank did an enquiry wherein it was found that the transactions which were alleged by the complainant were done through IMPS transfers and IMPS transactions (IMPS is interbank Electronic Fund Transfer Service) can be done through net banking only wherein username and password to log in to net banking is only known to the account holder/ customer and after logging in the transaction can only be done after receiving OTP on the mobile number of the customer only. In the present complaint the said transactions were done by the complainant/ account holder only which was also evident from the IP address from where the said transactions were done. Moreover, in the enquiry of the bank, no hacking of bank account of the complainant was found by the bank, hence, it can be clearly stated that it was either the complainant who had done these transactions or anyone else on his instructions to whom the complainant shared his confidential details must have done these transactions and OP Bank has no role to play in the said transfers. As and when the complainant requested to block the bank account of the complainant, immediately, it was done by the bank. The present complaint is merely a concocted story which has been manipulated with the intention to defame the opposite party No. 1, to take undue advantage of the complainant own wrong and just to frustrate the process of law. Neither any deficiency in service nor unfair trade practice on the part of the opposite party no. 1, therefore, the present complaint is liable to be dismissed with heavy costs. The prayer of the complainant to direct the opposite party No. 1 to release the amount of Rs. 8,27,100/- and Rs. 6,70,000/- as the compensation to the complainant for mental agony, harassment and for the inconvenience caused to the complainant. However, it cannot be accepted at any stretch of imagination because it was error on the part of the complainant. The complainant himself has done all the online transactions on the disputed dates alleged by the complainant.
7 Firstly, the opposite party No. 1 has taken the specific objection that the complainant is running a small trading company and he is proprietor of the complainant firm and he is also holding the current account with H.D.F.C bank i.e. opposite party No.1. In their written version, the opposite party No. 1 had itself admitted that it is a small trading company. Further, the complainant in his complaint has specifically mentioned that this firm is an only source of livelihood of the complainant and working exclusively for earning his livelihood by means of self employment. As such, this commission has got the jurisdiction to try and entertain the present complaint. The opposite party No. 1 has failed to place on record any document which shows that the account of the complainant is current account, moreover, the opposite party No.1 has placed on record a copy of account statement as Ex. OP-2 which does not support the version of opposite party No.1 qua the type of account. As such, the complainant is consumer and falls in the ambit of Consumer Protection Act, 2019.
8 Secondly, the matter was reported with the Police authorities and upon investigation, it was found that the said amount has been transferred to some another unknown account Number without the knowledge and authentication of the complainant in various different transactions starting from 22.7.2021 to 8.8.2021. The complainant specifically stated that no OTP was sent on the registered mobile phone as per the RBI guidelines. Upon investigation the police recovered an amount of Rs. 11,79,000/- and the amount of Rs. 11,52,900/- was released to the complainant. But remaining amount of Rs. 8,27,100.30 Paise have not been credited in the account of the complainant. An enquiry in this regard was conducted by the bank whereby it was reported that no hacking of bank account of complainant was found by the bank and held that these transactions were made by the complainant or by some other persons to whom the complainant has shared the confidential details of the bank account. No enquiry report has been placed on record by the opposite party No. 1 to prove that the enquiry was made by the bank in this regard.
9 During the course of arguments, the opposite party No. 1 has placed on record one Photostat copy of letter written by Indusind Bank dated 20.8.2021 addressed to SSP Tarn Taran whereby it has been proved that the money has been transferred to the account No. 258266968732 in the name of Handicraft Art. Moreover, the bank has marked lien Rs. 19,79,900/- in the account without the knowledge of the complainant. This letter clearly proves that the money in question of the complainant has been transferred to this very account without the knowledge of complainant. This fact has been established on the record that the complainant has nothing to do with the transfer of the amount in question because the said account Number in which the amount has been transferred is not even remotely concerned with the complainant firm.
10 The various settled law in this regard has already proven that the opposite parties are always responsible for an unauthorized transfer occasion by an act of malfeasance on the part of functioning of the bank. It is also settled law that if an account is maintained by the bank, the bank itself is solely responsible for its safety and security. This commission has relied upon the Judgment of the Hon’ble National Commission in case HDFC Bank Limited Vs Jena Jose in Revision Petition No. 3333 of 2013 and the relevant part of the Judgment i.e. Para No. 11 of the Judgment is reported as under:-
“The first fundamental question that arises is whether the bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the bank or by an act of malfeasance by any other person (except the complainant/account holder). The answer, straightway, is in the affirmative. If an account is maintained by the bank, the bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account holder), is its responsibility , and not of the consumer.”
1. Reference is also drawn to circular bearing No. DBR.No.Leg.BC.78/09.07.005/2017-18 dated 6th July 2017, issued by the Reserve Bank of India to all commercial banks, wherein it is stated as under:-
“6. A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events.
2. Contributory fraud/negligence/deficiency on the part of the bank (irrespective of whet her or not the transaction is reported by the customer)
3. Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.”
4. Both the Fora below have rightly held the bank liable for the unauthorized transactions.
It has been held in First Appeal No. 1209 of 2017 date of decision 1.6.2022 in case titled State Bank of India Vs St Pal Gupta by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that Transfer of funds from saving-N.R.I account by Bank. Complaint, order to refund. Validity. Held, if an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Similarly In Punjab national Bank and Anr V. Leader Valves. II (2020) CPJ 92(NC) it has been observed if an account is maintained by the Bank, the Bank itself is responsible for its safety and security.
11 On the other hands, the opposite party No. 1 has placed on record authorities i.e. 2008(4) CPJ 498: 2009(1) CLJ 492: 2008(53), RCR (Civil) 800, Surendra Chemicals Vs Indian Drugs Pharmaceuticals Ltd. by Uttarakhand State Consumer Disputes Redressal Commission Dehradun, 2019(1) C.P.J. 131 titled M/s Sainik Engineering Works Vs H.D.F.C. Bank Ltd. in First appeal No. 80 and 81 of 2018 Date of Decision 13.11.2018 decided by Rajasthan State consumer Disputes Redressal Commission (Jaipur Bench), in Civil appeal No. 7289 of 2009 Date of Decision 27.3.2023 titled The Chiarman and Managing Director Vs Chandramohan decided by Hon’ble Supreme Court of India and all the authorities produced by the opposite party No. 1 are based on different facts and circumstances and are not covered to the present case. The version of the opposite party No. 1 that the complainant is business concern and is not come under the definition of consumer is not proved by the opposite party No. 1 because the opposite party No. 1 has miserably failed to prove on record the type of account of complainant as ‘Current Account’ as discussed above.
12 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant and against the Opposite Party No. 1. The opposite party No. 1 is directed to pay Rs. 8,27,100/- with interest at the rate of 9% per annum from the date of complaint to the complainant. The complainant has been harassed by the opposite party N. 1 for a long time, therefore, the complainant is entitled to Rs.50,000/- as compensation on account of harassment and mental agony and Rs 15,000/-as litigation expenses. The present complaint against the opposite party No. 2 is dismissed. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
26.10.2023
