BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1032/2016

DATED ON THIS THE 2^nd November 2018

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.                   

                                                B.E., LLB., PGDCLP   - MEMBER

Sri. Devakumar,M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986 against the opposite parties, alleging deficiency in service and seeking a direction against opposite party Nos.1 and 2 Bank, to pay a sum of Rs.3,50,000/- along with interest at 24% p.a. from the date of filing the complaint with damages and against all the opposite parties to pay Rs.5,00,000/- compensation for the deficiency in service and for causing mental agony, anxiety and hardship, and the opposite parties to take appropriate action relating to theft of his Rs.3,50,000/- by an unknown person, litigation expenses with such other reliefs.
2.      The complainant, a doctor by profession, submits that, he received a phone call on his mobile phone from an unknown person on 14.11.2015, who asked him to furnish certain personal information.  In reply, he asked him to call after an hour, as he was busy in conducting surgery in the operation theatre.
3.     At 3.30 PM, when tried to call BSNL, the phone services were blocked.  The BSNL authorities at K.R.Nagar advised him to contact their office at Jayalakshmipuram, Mysore.  The authorities synced the old SIM card with new SIM card, even then, the phone failed to work.
4.     In the meanwhile, suspecting himself attempted to open his account with opposite party Nos.1 and 2 bank through his Laptop, but failed.  Later when opened the account at 7.15 PM, on 19.11.2015, found his account has been debited to a sum of Rs.3,50,000/- since last three days, even though he never made any transactions.  As such, suspected collusion of opposite party Nos.1 and 2 bank staff and also opposite party Nos.3 to 5, with unknown person.  A requisition was given to freeze the account.  A police complaint also registered with jurisdictional police on the same day, apart from giving a written complaint to opposite party Nos.3 to 5.  Aggrieved with the debit of Rs.3,50,000/- from his account, by an unknown person, alleged the deficiency on the part of opposite parties and filed the complaint seeking reliefs.
5.       The opposite party Nos.1 and 2 filed their common version denying the allegations and submits that, the complaint has been filed against opposite party Nos.1 and 2 in individual name with oblique motive only, as they never opened the complainant’s account, through his Laptop.  In fact, the account was opened from Bank’s computer system and informed about the transactions held in past three days.  Soon after deactivation of the account, on the advice of opposite party Nos.1 and 2 executive, a complaint was lodged with the police, in order to find out the fraudster.  Further, opposite party No.2 investigated the matter and cracked the crime and the entire debited amount has been credited back to the complainant’s account.  Thereby, opposite party Nos.1 and 2 denying the allegations as false, frivolous, misconceived and baseless, prays for dismissal of the complaint with costs.
6.     The opposite party Nos.3 and 4 have filed common version, denying the allegations as false, frivolous and to gain publicity without fulfilling his obligation and also to get enrich himself.  Further, the cause of action does not survive as the amount said to have been debited to his account has already been credited back to the account before filing the complaint.  Hence, the allegations are denied and prays for dismissal of complaint with costs.
7.     To establish the facts, the complainant and the opposite parties have lead evidence by filing affidavit.  Both side parties filed written arguments.  Heard the counsel for complainant and opposite parties. Perusing the material on record and posted for orders.
8.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes deficiency in service by the opposite parties, relating to blocking of his SIM card and debit of Rs.3,50,000/- from his Axis Bank account, thereby he is entitled for the reliefs sought?
3. What order?

9.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Does not call for discussion.

Point No.3 :- As per final order, for the following

:: R E A S O N S ::

10. Point No.1:- The complainant pleaded that, he received a telephone call from an unknown number/person, on 14.11.2015, who disclosed himself as a BSNL service provider and sought his personal information for clarification.  In response, told him that, he was busy in operation theatre doing surgery and directed to call after one hour, when he attempted to call the BSNL personnel at 3.30 PM, the BSNL phone was blocked, when he approached the BSNL local office at K.R.Nagar, Mysroe District, who advice him to approach the BSNL Head Office at Mysore, as the phone service was post paid service.  On 16.11.2015, a written complaint was filed, inturn they told there might be some problem with the SIM card and they synced the OLD SIM card with a new SIM card.  But, the phone failed to work for some time.
11. Further, the complainant pleaded that, he suspiciously tried to know his Axis Bank account, on 19.11.2015 at about 6.45 PM, by opening through his Laptop, but failed for the reason entry of wrong user ID and password.  So he approached Axis Bank seeking assistance to open his account and finally succeeded to get open at 7.15 PM.  He found that, there was debit of Rs.3,50,000/- from the past three days, even though no transaction was made by him.  As such, suspected the withdrawal of amount by an unknown person in collision of Axis Bank and BSNL employees.  Later deactivating the bank account, on the advice of axis bank executive, a complaint was lodged with Vijayanagara police at 8.00 PM.  Hence, the aggrieved filed the complaint and sought for the reliefs. 
12. The opposite party Nos.1 and 2 contended that the complaint has been filed in the individual name, with oblique motive.  The complainant alleged deficiency in service without any basis.  The complainant ought to have been very cautions, when an unknown person makes a call and seeking his personal information that too, while he was engaged in conducting surgery at operation theatre.   Soon after having raising a complaint, the same was referred to the concerned department which duly investigated the fraudulent transaction and tracked the same which took place at Hyderabad, by a person by name Nageshwara Reddy and criminal proceedings were initiated against him.  The entire amount which was fraudulently debited has been credited back to the complainant’s account.
13. The complainant, hurriedly filed this complaint before conclusion of investigation and also get published news about the incident in the Mysore City’s leading newspapers i.e. Star of Mysore and Mysore Mitra to defame the bank and also to hamper the Bank’s business transactions.  Further, the complainant concealed the Axis Bank’s prompt effort in tracking the crime and also crediting back of his lost amount, in the complaint in order to gain publicity and also to make unlawful gain only.  The complainant has not suffered any loss, hence, deficiency in service is denied and also not entitled for any reliefs.  As such, prayed for dismissal of complaint as not maintainable with exemplary costs.
14. The opposite party Nos.3 and 4 contended that, the complainant has filed the complaint without exhausting the statutory remedy under Arbitration Act and the complaint is liable to be dismissed on that ground.  The complaint has been filed without any cause of action and on imaginary grounds. At the request of the complainant only, the replacement of SIM cards were processed as per prevailing procedure, which have no bearing on banking transactions of the complainant.  The complainant’s mobile number was not blocked.  The complainant being a doctor ought to have exercised his rights while disclosing his personal information to an unknown person.  The complainant has filed the complaint maliciously with an intention to get publicity and to spoil the image of BSNL and there is no collusion of BSNL staff and Axis Bank.  The complaint is filed only to harass the opposite parties and for unjust enrichment.  Further, the complainant got his amount credited from the Axis Bank and thus the cause of action does not survive.  Hence, the complaint is liable to be dismissed as not maintainable and the complainant is not entitled for any reliefs as prayed.
15. On perusal of the material on record, the complainant has filed the complaint alleging deficiency in service by the opposite parties, on the basis of presumptions and assumptions, without proper material evidence.  As pleaded by the complainant, himself an unknown person called him to furnish personal information, while he was performing a surgery in OT.  The complainant being a doctor, ought to have to be diligent while performing his duty and furnishing information to an unknown caller.
16. The complainant makes bald allegations against opposite parties without any material evidence.  As per the prevailing procedure, the opposite party Nos.3 and 4 have issued duplicate SIM card at the request of the complainant only.  This has nothing to do with net banking.  It appeared to gain publicity, the complainant got published news in the local news paper, and also to defame the name and hamper the business of opposite parties, evenafter crediting back the amount, alleged to be lost by the complainant, to make unlawful enrichment only.  Thus, we opine, the complainant failed to establish that, the opposite parties have committed deficiency in service, thus the complaint is liable to dismissed as not maintainable.  Accordingly, the point No.1 is answered in the negative. 
17. Point No.2:- In view of the above observations, this point does not call for any discussion.
18. Point No.3:- with the above observations, the complaint is to be dismissed as not maintainable without cost.  Hence, the following

:: O R D E R ::

1. The complaint is hereby dismissed as not maintainable.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 2^nd November 2018)