DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.384/2013

Sh. Mohd. Aslam S/o Sh. Fazal Ahmed

Ms. Mahenau Fatima, W/o Sh. Mohd. Aslam

R/o C-7/128, DDA Flats,

Safdarjung Development Area,

Hauz Khas, New Delhi- 110016

….Complainant

Versus

Branch Manager

ICICI Bank Ltd.

Green Park Branch

S-26, 27, 28, Green Park Extension,

Near Uphar Cinema, New Delhi- 110016

        ….Opposite Party

 Date of Institution    :     02.07.2013  

 Date of Order            :    28.07.2022  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The complainants in the present complaint are seeking refund of Rs.65,980/- which was hacked from their bank account on account of the alleged negligence and deficiency on the part of the OP along with a sum of Rs. 21,113/- as interest at the rate of 16% per annum from 12.11.2010 to 11.11.2012 and further interest from 12.11.2012 till payment. The complainants have also sought a sum of Rs.1,00,000/- on account of mental agony harassment suffered and Rs.16,100/- as legal fees.

It is submitted that he had a joint account at ICICI Bank Green Park branch bearing account no. 007101538020. It is for the stated that on 13.1.12010 he received a call from Customer Care, ICICI Lombard bank confirming whether any transaction of Rs.65,980/- had been made by them as a transaction of the said amount has been made on 12.11.2010 and the said amount has been debited from their account. It is stated by the complainant that he immediately informed the bank that the said transaction was not authorized by him and filed a complaint to the Customer Care of the OP bank vide complaint vide Sr.no. 157729160 and annexed as CW1/A. OP bank then advised the complainant to register a case with the local police station informing about the hacking of his account and fraudulent transaction of the said amount on 12.11.2010. The complainant filed a DD complaint annexed as annexure CW1/B which was later converted to FIR no.267 dated 22.11.2010.

The complainant has also placed on record his statement of account annexed as Ann.1/E for the period 01.11.2010 to 13.01.2010 which shows the withdrawal of the said amount from their account on 12.11.2010.  The complainant thereafter filed a complaint with the banking Ombudsman on 04.02.2011 but no action was taken.

OP filed a reply to the letter on 22.03.2011 and it is stated that they have no responsibility or role in the fraudulent transaction/ withdrawal of the said amount from the complainant’s account.

The complainant tried to seek redressal through mediation but the OP did not participate in the proceedings on the dates fixed and vide it’s report dated 19.03.2013, the mediation center reported that ‘it is not fit for mediation’. The complaint was then filed on 02.07.2013.

OP has filed its reply and took preliminary objection that the complaint is barred by time as the disputed transaction took place on 12.11.2010 and the complainant became aware of the same on 13.11.2010 therefore, the complaint could have been instituted only by 13.11.2012 whereas the same has been filed on 02.07.2013. It is further stated by the OP that this court exercising summary jurisdiction cannot decide on the disputed questions of fact which are involved in the present matter.

On merits, it was stated that the transaction dated 12.11.2010 was either executed by the complainant himself or by someone who was duly authorised by the complainant to do the same. It is further stated that without prejudice that even assuming that the complainant was defrauded by some unknown person, the OP cannot be held liable as it is the duty of the complainant to keep his account safely and it is possible that the complainant may be a victim of phishing. It is submitted that once the user ID, password etc comes in the custody of the complainant thereafter, it becomes his duty to keep it safe and any misuse on accounts of his own negligence cannot be attributed to the OP. It is stated that enough safeguards have been adopted by the OP bank in order to avoid any automatic debit and the present case is on account of negligence/collusion of the account holder. It was further stated that the funds from the complaint’s account was debited towards bill junction payment Ltd. 180 FutureBazaar and these transactions were not done through the OP bank portal but through a payment gateway and the same cannot be done without the login transaction password and grid card authentication. Therefore, the bank is not liable to compensate the complainant if any alleged loss has been caused to the complainant. It was reiterated by the OP that it provides equal security to all the account holders and that they are not negligent for any deficiency in service.

It is further stated by the OP that the beneficiary of the transaction and the complainant may be hand in glove with each other and the transaction may have been done by the complainant himself to obtain double benefit of the transaction as well as they are now seeking reimbursement of the expenses. It is further stated by the OP that the complainant's complaint to Ombudsman was duly replied vide letter dated 22.03.2011 and his legal notice was duly replied vide letter dated 02.05.2013. It is further stated by the OP that the news clipping filed by the complainant regarding hacking into e-banking account and buying expensive electronic items through that account does not reflect that the OP bank was in any case negligent in providing the services and the Commission should not decide the case on the basis of such kind of evidence.

In the replication filed by the complainant, the complainant has stated that FIR NO. 267 dated 22.11.2010 mentions 2 other account holders from whose account the amount was fraudulently withdrawn and a list of about 28 account holders was annexed with the complaint dated 02.07.2013 which reflects 28 fraudulently transactions from the account holders of OP Bank.

The OP was proceeded ex-parte on 30.09.2013 and exparte judgment was passed on 03.06.2014 in favour of the complainant. The order of this Commission was set aside by the Hon’ble State Commission on 12.08.2016 in FA number 545/15 whereby the order under execution was set aside subject to payment of Rs.5,000/- as costs. 

Thereafter, the matter was heard on merits by this Commission. Both the parties have filed their respective reply, rejoinder, evidence affidavits as well as written submissions.

After carefully going through the entire material on record it is seen that there are two primary objections of the OP which have to be primarily decided before the merits of the case. The first preliminary objection of the OP relates to limitation i.e. the complaint is barred by time. As is observed from the documents on record it is seen that the complainant has been trying to get redressal from the OP through Ombudsman, mediation as well however did not get any positive response. The complaint to the ombudsman was filed on 04.02.2011 however, no response was received. The complainant then approached the mediation centre on 26.02.2013 but no result came out of it and the file was returned as ‘unfit for mediation’ as the OP had telephonically informed them they did not want to continue mediation. The report is dated 19.03.2013. It is also seen from the file that legal notice was sent by the complainant on 09.04.2013 and the same was replied to by the OP bank on 02.05.2013. However, the law is clear on this point that giving of legal notice does not provide a fresh cause of action and therefore, the present complaint is barred by time.

The Consumer Protection Act 1986 Section 24 A provides as under:

24A. Limitation period:-  

i) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

ii) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

It is also seen from the record that the complainant along with his rejoinder has filed an application for condonation of delay. It is seen from the record of the case that the reason for delay in filing the case is “ignorance of law”. There are various judgments where it has been categorically held that “ignorance of law” is no excuse and therefore cannot amount to being a sufficient cause in condoning delay. It is also apparent from the merits of the case that the complainants have been diligently pursuing their case from the very beginning and it is difficult to fathom that they were not aware of their right. The reason for condonation does not amount to ‘sufficient cause’ and therefore, we hold that the present complaint is barred by limitation and is, therefore dismissed.  

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.