Date of Filing: 14.10.2009<br /> Date of Order: 31.07.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 31st DAY OF JULY 2010<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2393 OF 2009 <br /> <br /> <br /> Mr. Eden Winston Bout,<br /> S/o Elphinston Bout,<br /> R/at Apartment No.101,<br /> No.22, Hutchins Road,<br /> St. Thomas Town,<br /> Bangalore-84. Complainant<br /> <br /> V/S<br /> 1.M/s. HDFC Bank,<br /> Branch at Millers Boulevard,<br /> No.70/2, Millser Road,<br /> Bangalore-52.<br /> Rep. by its Branch Manager, <br /> Mr.Shankar Pawar<br /> <br /> 2.Mr. Shankar Pawar,<br /> Branch Manager,<br /> Branch Banking, M/s. HDFC Bank,<br /> Millers Boulevard,<br /> No.70/2, Millers Road,<br /> Bangalore-52. <br /> <br /> 3.Ms.Reshmi B.V.<br /> Bank Executive,<br /> M/s. HDFC Bank,<br /> Millers Boulevard,<br /> No.70/2, Millers Road,<br /> Bangalore-52. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. The complainant is seeking direction to the opposite parties credit sum of Rs.58,000/- to his net banking savings account and for compensation.<br /> The brief facts of the case are that, the opposite parties bank created a Net Banking Savings account in favor of the complainant. However, the account was not activated by the opposite parties. As on 20-10-2008, his account had a credit balance of Rs.58,136/- On 25-10-2008 he received an SMS message from the opposite parties bank. Immediately, the complainant replied that he had not added / modified a beneficiary Pragati Singh. The complainant accessed Net Banking account and shocked to note that balance was a mere Rs.136/- and Rs.58,000/- was withdrawn from the account. The complainant submitted that he had not activated his Net Banking account based on the password issued by the opposite parties and despite such non activation the account was hacked into and the money transferred. The complainant submits that the opposite parties have rendered incompetent and ineffective and deficiency service. This was the product of fraud and criminality and therefore lodged a complaint in this regard to the Cubbon Park Police Station. Out come of investigation is awaited. The complainant constrained to cause legal notice calling upon the opposite parties to redress his problem. The complainant further submitted that he had instituted complaint No.534/2009 in the Consumer Forum same was dismissed for non prosecution on 10-8-2009. He is entitled to institute fresh complaint under the provision of order 9, Rule 4 CPC. Hence the complaint for seeking direction to the opposite parties to credit Rs.58,000/- to his Net Banking Savings account. <br /> 2. The opposite party Bank has filed his version stating that it is true that the complainant having savings bank account with the opposite parties and had opted Net Banking. It was brought to the notice of the complainant the terms and conditions of the net banking clause 11.25 of booklet indicates the risks that may be associated with net banking. Which are as follows: <br /> a) Miss use of password<br /> b) Internet frauds<br /> c) Mistakes and errors<br /> d) Transaction risks<br /> e) Technology risks<br /> Misuse of the account could be for the following reasons: <br /> a) Failure of the complainant from logging out completely.<br /> b) The Password and customer ID being shared with some third person.<br /> c) A Third person obtaining access to the Net banking password of the complainant. <br /> The transaction in question if not done by the complainant may have arisen due to the password having come to the knowledge of the 3rd party. The opposite parties bank has time and again taken precautions to warn the customers of security threats. It is also submitted that hackers/third parties with intent to cheat people use various software’s, viruses, trojans, key loggers etc., to obtain customer ID and IPIN of gullible people and use the same unlawfully operate the bank account and misappropriate the money therein. It is clear case of the negligence, carelessness and violations of terms and condition of the Net banking by the complainant. The complainant can not recover monies which he has lost due to his negligent acts. Moreover the complainant had filed complaint to police he needs to wait till the investigation is over. For the reasons stated above the opposite parties has prayed to dismiss the complaint. <br /> 3. The complainant has filed his affidavit evidence. On behalf of the opposite party is also filed affidavit evidence. Both parties have filed the documents. <br /> 4. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-<br /> 1. Whether the complaint is maintainable?<br /> 2. Whether the complainant is entitled for relief prayed for?<br /> <br /> REASONS<br /> 5. Admittedly, the present complainant had filed a complaint in cc.No.534/2009 before 4th Addl. District consumer disputes redressal forum against the present opposite parties for the same relief. His complaint came to be dismissed for nonprosecution on 10-8-2009. The copy of the dismissal order has been produced by the opposite parties. The order sheet reads as under;<br /> “Complainant despite affording many opportunities for filing affidavit evidence has not turned up date is given as final chance, but has not turned up. Therefore, the complainant is taken as not interested in proceeding with this complaint.<br /> Hence, complaint is dismissed for non prosecution.”<br /> -sd- -sd- -sd-”<br /> Therefore, under these circumstances we have to see whether the fresh complaint on same cause of action is maintainable or not. Order 9 rule 9 CPC states where suit is wholly or partly dismissed under rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside. Admittedly in the earlier complaint, the complainant had given last chance to produce his evidence, but, the complainant was not present on the date of hearing therefore, the complaint was dismissed for non prosecution. Therefore, the complainant could have filed application for setting aside the dismissal order under order 9 rule 9 CPC. The complainant submitted that in his case order 9 rule 2&3 are applicable. But, in our opinion the dismissal in this case of the earlier complaint can not be taken under order 9 rule 2&3 CPC. The complaint was posted for filing evidence and the complainant remained absent and failed to produce evidence. Therefore, the complaint was dismissed that dismissal is definitely comes under order 9 rule 8 CPC. The ops were not called up onto remain present on 10-8-2009 when the earlier complaint was dismissed. Therefore, the presence of the opposite parties was not at all necessary when the complaint was dismissed for default. The remedy open to the complaint under the law is to file a petition under order 9 rule 9 CPC for setting aside the dismissal order and for restoring the complaint dismissed for nonprosecution. Therefore, on this ground itself the present complaint deserves to be dismissed as not maintainable. However, even now also the complainant is at liberty to file petition under order 9 rule 9 CPC for setting aside dismissal order of complaint No.534/2009, if he is so advised. Secondly, the complainant has got remedy to file his complaint before Banking Ombudsman for redrssal of his grievances. RBI has formulated scheme and Banking Ombudsman’s have been constituted under the scheme of RBI to look into complaints against the Banks. The present dispute definitely comes under the scheme formulated by the RBI. The Banking Ombudsman is proper authority to look into the matter thoroughly and examine the point and deficiency and negligence and fraud etc. The complainant himself has stated in his complaint the dispute in question was a product of fraud and criminality when this is the case how can this Fora can decide the aspect of fraud and criminality without there being proper evidence and cross examination of the witnesses. The cases before the Fora are being in disposed off in summary manner. The allegation of fraud and criminality or misappropriation shall have to be gone in detail by the civil court in a properly instituted suit. Therefore, the option is also available to the complainant to file a civil court in competent court of law. Thirdly, the complainant submitted complaint to Cubbon Park Police and the mater is under investigation and result is awaited, when this is the case giving any judgment either way is not proper when the criminal law is in action and the police is under investigation of the matter after the full and final investigation of the case by the concerned police more particularly Cyber Crime Police Station the truth will come out. If the bank is found to be guilty and not careful in handling the account in that case definitely responsibility will be fixed on the op bank and the complaint will get redressal of his grievances and loss will be made good. So under these circumstances this complaint appears to be premature one, however all the options mentioned above are open to the complainant, he may choose any one of the options for getting justice. With this observation and discussion the present complaint deserves to be dismissed as not maintainable before this Fora. In the result, I proceed to following; <br /> ORDER<br /> <br /> 6. The complaint is dismissed. No order as to cost.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 31ST DAY OF JULY 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings <br /> <br /> MEMBER MEMBER<br /> <br />