BEFORE THE KARNATAKA STATE CONSUMER DISPUTES

REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)

DATED THIS THE 7^th DAY OF MARCH, 2023

PRESENT

SRI RAVI SHANKAR, JUDICIAL MEMBER

SMT. SUNITA C.BAGEWADI, LADY MEMBER

COMPLAINT NO.110/2014  

Mrs.Tara Rao

Aged about 50 years,

No.302, Serene Manor

26, Wheeler Road Extension                              ….Complainant

Cooke Town, Bengaluru-84

(By M/s NDS Law Partners, Advocates)

                                          -Versus-

1.            HSBC Bank Ltd,

          Barakhamba Road Branch,

          No.25, Barakhamba Road,

          New Delhi-01                                             … Opposite party/s  

2.      HSBC Bank Pvt. Ltd,

          MG Road, Bengaluru-01

3.      Deutsche Bank AG,

          26/27, Raheja Towers,

          Mahatma Gandhi Road,

          Bengaluru-01

4.      Mile Stone

          602, Hallmark Business Plaza,

          Sant Dnyaneshwar Marg,

          Opp. Guru Nanak Hospital,

          Bandra (East), Mumbai-400 051

          Maharashtra, India

5.      Canara HSBC,                                           … Opposite party/s  

          Unitech Trade Centre, 2^nd Floor,

          C-Block, Sushant Lok, PH -1,

          Sector-43, Gurgaon

6.      Birla Sun Life Insurance Co. Ltd.

          G Corp Tech Park,

5^th and 6^th Floor,

Kasar Wadavali, Ghodbunder Road,

Thane-01

(Deleted as per order dated 8/6/2018)

7.      Aviva Life Insurance Co. India Ltd.

          Sector Road, Opp. Golf Course,

DLF Phase V, Sector 43, Gurgoan-03

(OP No.1 and 2-by Sri.Rangarajan & Prabhakarn, Advocate)

(OP No.3-by Sri.MGC & Co, Advocate)

(OP No.4-by Sri.VSR, Advocate)

(OP No.5- By Sri.Bajaj & Kumar Law Chambers, Advocate)

(OP No.6-by Sri.India Law, Advocate)

(OP No.7-by Sri.Shrikar Jayagovind, Advocate)

O R D E R

BY SMT.SUNITA C.BAGEWADI, MEMBER

       The complainant filed this complaint against the Opposite Parties alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Parties to pay a sum of Rs.92,00,000/- along with 18% interest  for mental agony and direct the Opposite Party Nos.1 and 2 to Rs.50,00,000/- along with interest and also direct the Opposite Party No.3 to pay Rs.16,00,000/-  along with interest and further direct the Opposite Party No.4 to pay Rs.10,00,000/- as damages and Rs.6,00,000/- being the principal amount along with 18% interest and further direct the Opposite Parties No.5 to 7 to pay Rs.10,00,000/- along with interest to the complainant and grant such other relief.

2. The brief facts of the complaints are as under:-

The complainant is a premier customer of HSBC bank and has been banking with HSBC bank for over 15 years and she had two savings bank accounts with HSBC being account numbers 072-334154-006 and 072-334154-007. There has been a huge irregularity and fraud played in the operation of my bank account and other fraudulent transfers. The preliminary investigation done by the complainant ha revealed that the said Mr.Abhishek Rohatgi along with officials of HSBC bank has engaged in several illegal acts, including the following forgery and making of the false documents. The said Mr.Abhishek Rohatgi has illegally and fraudulently forged by signature to obtain six insurance policies in my name viz. a) two Aviva Life Insurance (7th respondent) one policy bearing No.APB 3073516 was obtained through Induslnd Bank (being the agent) by a forged Deutsche Bank Cheque for Rs.1,96,800/- bearing No.817412 issued through a Deutsche account which was opened illegally without consent of the complainant, wherein even her age was wrongly given as 35 and another policy bearing No.TDW3089439 was obtained by illegal/ unauthorized/ forged Induslnd Bank pay order No.002628 for Rs.4,50,000/-. B) Two policies of Birla Sun Life Insurance (6^th respondent) bearing Nos.004870621 and 004870845 for which payment has been made in the form of illegal/ unauthorized/ forged pay order of Rs.2,51,347/- and Rs.1,50,000/- through the illegally opened Deutsche Bank account in my name. c) One Canara HSBC policy (5^th respondent) by paying one lakh bearing No.00195 (has been made out forging complainant’s signature) where some of the complainant’s details are malafide given incorrect and another policy from Canara HSBC policy, though reflects in the HSBC bank statement dated 6.1.2011 which is debited Rs.4,50,000/- but no policy document has been received by the complainant has not received by the commitment till today. It is pertinent to state that the complainant has not received any calls to appraise the details / commitments of the said policies.

The complainant further submits that the details given in said scheme such as contact number (9953999608) is of Mr.Abhishek Rohatagi and also email address (rara.rao@rediffmail.com) mentioned does not belong to the complainant. He has illegally forged complainant’s signature in the electronic records to open/establish bank accounts. Insurance policies from Aviva and Birla Sun Life have been obtained through forgery and at least one Canara HSBC policy issued in complainant’s name has the forged signatures.  The above illegal acts amounts to Criminal breach of trust, Criminal breach of trust by public servant /banker/ agent, cheating by impersonation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document or electronic record, having possession of document/ valuable security knowing it to be forged and intending to use it as genuine and the same being read with Section 34, Section 120B etc of the Indian Penal Code. It is clearly submitted that the complainant has not signed knowingly or unknowingly any bank account opening form. The complainant has never entered the premises of the DB for the said purpose and this to be one of the great form of breach of KYC norms as to now could somebody’s bank account been opened without the person even visiting the bank. The said Abhishek Rohatgi in connivance with officials of HSBC bank has churned the complainant’s life savings with a malafide intention to gain investment/ management fees resulting in huge loss to the complainant. However Aviva Life Insurance Policies and Birla Sun Life Insurance policies have been canceled and amounts returned pursuant to be respective companies appreciating and realizing the illegal acts perpetrated by Mr.Abhishek Rohtagi, due to preserved follow up with the concerned entities. The Earth Infrastructure, Milestone and Canara HSBC policy are yet to be retrieved who have been less than cooperating in the complainant’s struggle in spite of preserved follow up with them through e-mails, letters and phone calls.

The complainant further submits that her HSBC credit card has also been compromised and there are also illegal transaction to the tune of Rs.3,50,000/- . The said credit in dispute was never received by the complainant through the records with HSBC states that it has been handed over in her building. The complainant had also availed of a housing loan from the respondent HSBC bank and was also paying regular installments without any default. It is submitted that she got the same transferred to another banking institution and because of such acts committed by the respondents; she has been reduced to a state where she may not be in a position to pay her installments in respect of the said housing loan. Two of the mutual fund forms for amounting Rs.10,00,000/- from the HSBC mutual fund portfolio have also been forged and have been mis-utilized which clearly demonstrates the breach of trust from the 1^st respondent bank.

The complainant further submits that the 1^st respondent bank has failed to safeguard the complainant’s interests. The said respondent bank and its relationship manager have committed several acts which are criminal in nature. The complaint has also been lodged before the concerned police station for such criminal acts. The complainant also issued a legal notice to the 1^st respondent but the 1^st respondent has chosen to give an untenable reply. The acts of the 1^st and 2^nd respondent bank clearly tantamount to deficiency of service and unfair trade practice. They have been completely negligent in handling the investments of the complainant. A complaint has also been lodged before the economic offences wing and the matter is pending investigation. It is submitted that the respondents 1 and 2 are liable to compensate the complainant by reversing the bank charges that have debited to her account for fraudulently mi-utilizing the mutual fund account, misuse of credit card and also to refund the amount that has been lying with the respondent no.3, 4 & 5 along with interests and damages. The respondent 6 and 7 have refunded the amount without any interest and unjustly enriched themselves and in view of the same the 1^st and 2^nd respondents are liable to pay the damages along with interests to the complainant as prayed for.          

3. After the service of notice, the Opposite Parties have appeared through their counsels and filed separate version.

4. In the common version, the Opposite Party Nos.1 and 2 contended that at the very outset, the Opposite Party Nos.1 and 2 denies each and every averments, allegations, submissions and contentions raised in the complaint that is false and baseless, except those which are expressly admitted hereinafter. That this Hon’ble Commission does not have the jurisdiction to try and entertain the present complaint, in view of the complexity of facts as well as the allegations as regards cheating, fraud and forgery of the document which are involved. The complainant has filed the present complaint alleging deficiency of service by these Opposite Parties with regard to manipulated accounts and forger carried out in the year 2011 i.e. 4 years ago. As per Section 24A of Consumer Protection Act a complaint filed beyond a period of 2 years is time barred and hence not maintainable. Regarding the products as such as Aviva Life Insurance, Birla Sun life Insurance, Earth Infrastructure and Milestone Domestic Scheme, these produces are not offered by the HSBC (Opposite Party). The policy bearing number 2000269656 was issued to the complainant by Canara HSBC based on a signed application form and a sales illustration, all of which have been signed by the complainant signifying his understanding of the features of the policy, including the premium payment term. The complainant with respect to the signatures on the LOIs for Mutual Fund transactions, the same were signed by the complainant and found valid. The complainant has made a long term profit of Rs.9,94,192/- through Mutual Fund Investments with Opposite Party.

The Opposite Parties further contended that the letter dated 22-6-2011 was regarding the non-receipt of the credit card. The credit card number 5120 xxxx xxxx 4896 was reported to be lost by the complainant and at the request of the complainant the same was replaced with the credit card number 5120 xxxx xxxx 8333. The replaced card was sent to complainant’s residence address on 24-8-2009 vide Airway bill number (AWB) 44373611800, through Blue Dart courier and the said card was received by the complainant on 26-8-2009. On 2-11-2010 a new card ending with number 8333 was again issued upon receipt of a complaint that the earlier card was retained / struck in the ATM. This card was dispatched vide Blue Dart courier, AWB number 44149438270 and was received by complainant’s sister Ms.Maya Raoon 3-11-2010. In June 2011, the card was again replaced owing to the complainant that the credit card was damaged. This replaced card (new) was delivered on 3-6-2011 vide Blue Dart courier, AWB number 44319568440 and was received by Mr.A.K.Sahay (brother-in-law). Post the complainant’s change of address to Bangalore, had requested for a credit card replacement in June 2011. The credit card number 5120xxxx xxxx 8333 was replaced with the (new) credit card No.5120 xxxx xxxx 9049 and the card was received by the complainant through their Bengaluru branch.

These Opposite Parties further contended that vide the application form had availed the Home loan 072 xxxxxx-001. The complainant agreed to repay the loan in Equated Monthly Installments (EMI). The transfer of Home loan to another bank / Financial Institution is something which the complainant decides and the Opposite Party has no role to play therein.          

5. In the written version, the 4^th Opposite Party contended that the complainant has filed false, frivolous and vexatious complaint against this Opposite Party. The present complaint does not arise any consumer dispute or any deficiency of service on the part of this Opposite Party. This Commission has no jurisdiction to entertain the present complaint under the Consumer Protection Act. The complaint is entirely based on the commission of fraud allegedly committed by the Opposite Parties No.1 and 2 and no allegations whatsoever have been made against this Opposite Party. There is no deficiency in service on the part of the 4^th Opposite Party and the complainant has failed to show any deficiency of service on the part of the 4^th Opposite Party. The averments made in the complaint are not within the knowledge of the 4^th Opposite Party. Therefore the present complaint is liable to be dismissed.  

6. In the written statement, the Respondent No.5 contended that, the Hon’ble Forum does not have the jurisdiction to try and entertain the present complaint, in view of the complexity of facts as well as the allegations of cheating and fraud is involved. That the said policy documents were duly dispatched at the address of the complainant vide Blue Dart Courier bearing Awb No.43671615890 and the same was delivered on 3-11-2010 and was received by Poonam.  It is submitted that this Respondent No.5 has already refunded the amount of Rs.4,50,000/- to the complainant vide cheque No.374443 dated 19.3.2011. It is further submitted that with an amount of Rs.1,00,000/- a policy bearing No.0019506113 was issued in favour of the complainant, thereby providing Insurance Coverage to the complainant during the tenure of the policy contract.   

         7. In the version, the Respondent No.6 contended that the Respondent No.6 is the branch office of Birla Sun Life Insurance Co. Ltd registered under the provision of Section 3 of the Insurance Act, 1938. The complainant had submitted duly filled and signed proposal forms along with the other requisite documents and the first annual premium deposit to the Respondent No.6.  Further the Respondent No.6 had issued the Birla Sun Life Insurance Secure 58 plan and Birla Sun Life Insurance Vision Plan – GSB Pay 15 strictly as per the duly filled in and signed application received by the complainant. As per Clause 4 (1) and 6(2) of the Insurance Regulatory and Development Authority Regulations 2002 a copy of the proposal form is sent to the life assured along with the policy documents bearing No.004870845 and 004870621 were dispatched by Blue Dart on 12-5-2011 and 3-6-2011 to the life assured.

         Further this Opposite Party contended that the complainant had requested to cancel the subject policies bearing No.004870845 and 004870621 on 17-6-2011. This Opposite Party carefully evaluated the matter and considered the request of the complainant and cancelled the subject policies, accordingly and refunded the premium amount immediately. The same was duly intimated to the complainant vide letter dated 1-7-2011. This Opposite Party had dispatched the refund cheque bearing No.179532 and 179531 of Rs.1,50,000/- and Rs.2,51,437.51 to the complainant and same has been enchased by the complainant on 2-8-2011. The complainant had accepted the cheque without any protest displaying his intention of settlement. Therefore this Opposite Party has discharged its liability after the payment of the premium amount to the complainant. The complainant has no grievance against the Respondent No.6 and hence Respondent No.6 may be removed from the array of parties and prays to dismiss the complaint against this Opposite Party.

        8. The complainant has filed affidavit evidence and marked documents as Exs.C1 to C20. The Opposite Party Nos.5 and 6 filed their affidavit evidence and other Opposite Parties not filed their affidavit evidence.

9. On perusal, the following points will arise for our consideration;

(1)     Whether the complaint is maintainable under the CP Act?

(2)     Whether the complainant has proved deficiency of service against the OPs?

(2)     Whether the complainant is entitled for the reliefs as sought?

(3)     What order?

10. The findings to the above points are;

                   (1)     In the negative  

(2)     In the negative  

(3)     In the negative

(3)     As per the final order

R E A S O N S

11. Point Nos.1  to 3:-         Perused the order sheet of this Commission, we noticed that the Opposite Party Nos.1 and 2 filed objection but not filed evidence affidavit. The Opposite Party No.7 also not filed objections as well as evidence affidavit. On 13-3-2017 the complainant and Opposite Party No.3 filed a joint memo reporting settlement hence the case against the Opposite Party No.3 was dismissed. On 8-6-2018 the Opposite Party No.6 filed an application to delete him on the ground that they have paid the amount and the complainant also on the same day submits that she has received the amount from Opposite Party No.6 hence the Opposite Party No.6 was deleted from the cause title as not pressed and on the same day the complainant submits that she has grievance against the HSBC bank only. Meanwhile on 5-2-2021 advocate for complainant prays time to cross examination of the Opposite Party, but this Commission has provided opportunities to file interrogatories. However the complainant has not filed interrogatories in spite of sufficient opportunities has been granted and on 12-10-2022 the complainant came with an application to defer the orders and permitted him to file interrogatories to the Opposite Party. However, this Commission has rejected the prayer of the complainant as the complainant has not made any attempts to file interrogatories from 22-6-2017 and the matter is posted for orders.

12. Perused the contents of complaint, objections filed by the Opposite Parties Nos.1, 2, 4 to 6, evidence affidavit of complainant and evidence affidavit      of Opposite Parties Nos.5 and 6 and documents produced from both parties, we noticed that, the complainant alleges that there has been irregularity and fraud played in the operation of the 1^st Opposite Party-HSBC Bank Ltd and other fraudulent transfers and after investigation came to know that Mr.Abhishek Rohatgi along with officials of HSBC bank has engaged in several illegal acts and he has illegally forged the complainant’s signature in the electronic records to open the bank account, insurance policies in the name of complainant which amounts to criminal breach of trust by public servant, cheating for forgery and the same being read with Section 34, Section120B of the Indian Penal Code and prays for compensation. Per-contra, the Opposite Parties have denied the same.

13. Perused the contents of complaint and affidavit evidence of complainant, the allegations of the complainant is throughout the complaint based on fraud, cheating, forged documents/electronic records, false signature by Mr.Abishek Rohatgi along with officials of HSBC bank and these allegations needs voluminous evidence. Then the complainant has to take appropriate action before appropriate authority against Mr.Abishek Rohatgi and officials of HSBC bank. Now the question is whether the Consumer Commission should entertain the complaint where certain complicated questions and law are involved in it?. In so far as, the question of offence of fraud cheating as defined under IPC which cannot be adjudicate by the Consumer Commission under the Consumer Protection Act. The Consumer Protection Act is required to follow the summary proceedings for trail. The alleged fraud, forgery, cheating would be within the purview of the Criminal Court. Moreover, the complainant has not clarified the status of the complaint filed before Economic Offences Wing. Hence, Consumer Commission is not the competitive authority to adjudicate the matter involved in the fraud, cheating and forgery etc. Hence, the complainant is not entitled for seeking compensation based on action arising out of fraud, cheating, forgery etc. as prayed in the complaint.

14. Hence, considering the facts discussion made here, we are of the opinion that, the complaint is involved complicated question of facts and law. We do not find any deficiency of service. Hence, it is not the fit case for summary adjudication before this Commission. Hence it is not maintainable as per the Consumer Protection Act and accordingly the complaint is dismissed. Hence, we proceed to pass the following:-

O R D E R

The complaint filed by the complainant is hereby dismissed by providing liberty to file complaint before proper court/authority. No order as to costs.  

Send a copy of this order to both parties.

MEMBER                                            JUDICIAL MEMBER