SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The facts of the case are that the complainant is the Sole Proprietress of Flowerzncakez.com and have a Current Account, bearing No. 696011001386 with the OP-1 Kotak Mahindra Bank Ltd. There was a regular transaction in the said account. That on 18.12.2017 complainant received a text message in her Mobile registered with the Current Account that Rs.99,999/- has been debited from her account. On the following day, vide letter dated 10.12.2017 she intimated such fact to the OPs with a request to take immediate steps to reverse the said amount to her Current Account. The OP-2 just to evade the liabilities intimated the complainant over telephone to lodge F.I.R. and on the following day F.I.R was lodged to Shakespeare Sarani P.S. about the illegal transaction. Copy of F.I.R was submitted to the OP-1 Bank but the OPs did not take any step to credit Rs.99,999/- in her account. Finding no other alternative, complainant issued a notice dated 15.02.2018 to the OPs requesting them to credit Rs.99,999/- to her Current Account within 07 days from the date of receipt of the notice. In response by a letter dated 17.02.2018 the OPs intimated the complainant that the alleged transaction has been done through net banking in the name of OSWWW.MYPAYWORLD.COM 6613156861 which was linked with the current account of the complainant.
Further case of the complainant is that she has no nexus with the
OSWWW.MYPAYWORLD.COM 6613156861 and she never done such transaction. The alleged transaction had placed with the connivance of the OPs. As such, the OPs are liable for such illegal debit. It is further alleged that the OPs have adopted unfair trade practice towards discharging their duties and liabilities. The complainant has prayed for refund of Rs.99,999/- along with other reliefs in terms of prayer in the petition of complaint.
The OPs have contested the case by filing a Written Version contending inter alia that the consumer complaint is not maintainable either in law or in facts. Complainant used the Current Account for her business transaction which is commercial in nature and the complainant is not cover under the definition of consumer U/s 2 (1) (d) of the Consumer Protection Act 1986. The specific case of the OPs is that the complainant has a Current Account with the OP-1 Bank in the name of Flowersncakez,com since 20.11.2013 and on 19.12.2017 OP-1 / Bank received a complaint about transaction of Rs.99,999/- done from her Current Account allegedly without her authorization. Upon proper investigation the OPs found that the disputed transaction was done through Mobile Banking in the name of OSWWW.MYPAYWORLD.COM 6613156861 which is linked with the Current Account No. 696011001286 of the complainant. Such type of transaction require a Password / Pin along with One Time Password (OTP) for Online transaction. That the usage of Net Banking/ Mobile Banking / UPI requires various mandatory details which makes the transactions fully secured and since such transactions have happened past authenticating the Password / Pin and OTP. As such, the complainant cannot claim that the transaction was done from her end. Therefore, there is no unfair trade practice on the part of the OPs with regard to the allegations made by the complainant. The OPs have prayed for dismissal of the complaint with costs.
Decision with Reasons
The complainant and OPs filed evidence through affidavit. They have also given reply against the questionnaires set forth by the adversaries. Both parties have also filed their Brief Notes of Argument. We have examined the entire material on record and also given a thoughtful consideration to the arguments advanced before us.
It is undisputed that the complainant is the proprietress of Flowerzncakez. Com and is operating a Current Account with the OP-1 Bank. It is also undisputed that on 18.12.2017 the alleged transaction of Rs.99,999/- was done from the Current Account of the complainant and upon investigation the OPs found that the disputed transaction was done through Mobile Banking in the name of OSWWW.MYPAYWORLD.COM 6613156861 which is linked with the Current Account No. 696011001286 of the complainant. It is true that such type of transaction require a Password /Pin, along with One Time Password (OTP) for Online transaction. The usage of Net Banking / Mobile Banking / UPI requires various mandatory details which makes the transactions fully secured and since such transactions have happened post authenticating Password / Pin and OTP. Neither the OP-1 Bank nor its employees asked the complainant to share her confidential details. There is no dispute that after receiving complaint regarding alleged unauthorized transaction of Rs.99,999/- the OP-1 Bank blocked the Debit Card of the complainant for security reasons and had also requested the complainant to keep the said Debit Card blocked permanently.
“The Reserve Bank of India by its circular being No.DBR No. LEG.BC.78/09.07.005 / 2017-18 dated 6th July, 2017 duly intimated all Scheduled Commercial Banks (including RRBs) and all Finance Banks and Payment Banks about the limited liability of a customer inter alia as follows :
“a customer shall be liable for the loss occurring due to unauthorized transactions in the following cases :
i) In cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss until he reports the unauthorized transaction to the bank. Any loss occurring after the reporting of the unauthorized transaction shall be done by the bank.”
The complainant holds the Current Account with the OP-1 Bank and used the said account for her business transaction which is commercial in nature. On perusal of Para – 24 of the consumer complaint we find that the complainant has made a prayer for compensation of Rs.5,00,000/- for mental agony and loss of her business. Thus, the complainant is not covered by the definition of consumer U/s.2 (1) (d) of the Consumer Protection Act, 1986.
In the case of Sushma Goyal - Vs – PNB decided by the Hon’ble National Commission in Revision Petition No. 134 of 2011 decided on 07.04.2011, it was observed that the complainant therein had admitted himself to be a commercial organization for commercial purposes. The case therefore, fell within the exception clause contained in Section 2(1) (ii) of Consumer Protection Act, 1986 as amended in 2002. On the same lines, the present case is also a case of partnership firm doing commercial activity and for commercial purposes.
We have also gone through the materials on record including the pleadings of the parties and the above referred judgment and find that in this case it is the positive case of the complainant that she is a consumer in the true sense of the term as provided under C.P. Act and that there is deficiency in service and unfair trade practice at the instance of the OPs / Bank in debiting Rs.99,999/- from the current account of the complainant without any rhyme and reason. The OPs / Bank, on the other hand, has come forward with a case to the effect that complainant having not a consumer as per provisions of the C.P. Act, 1986 and that in absence of any deficiency as claimed by the complainant on the part of the Bank, the complainant is not entitled to any relief whatsoever. On perusal of the materials on record we find that in a case of present nature this is an established principle that the complainant must prove her case independently by adducing cogent and reliable evidence etc. and is not permitted to the bank upon any lacuna for defect on the OPs. Keeping in mind such proposition we find that there is no effort made on the part of the complainant to substantiate her case to the effect that she is a consumer in true sense of the term. There is no averment in the consumer complaint that the complainant runs the business under the name and style of Flowerzncakez.com exclusively for the purposes of earning her livelihood by means of self-employment.
Based on the above discussion, the case is liable to be dismissed. Thus, the complainant is not entitled to get any relief as prayed for.
In the result, the case fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the OPs.
Both parties are to bear their costs relating to litigation.
