19.01.2016

HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Bank of Baroda (for short, ‘BOB’/OP No. 3) to impeach the judgment and final order dt. 19.9.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas (for short, ‘the Ld. District Forum’) in Consumer Complaint No. 08 of 2014.

            The First Appeal No. 1290/2014 has been filed on behalf of the OP No. 1, i.e. HDFC Bank Ltd. (for short, ‘HDFC Bank’) to impeach the said judgment and final order passed by the Ld. District Forum.   Since both the Appeals have arisen out from a common judgment, the First Appeal No. 1290/2014 shall be governed by the judgment passed in this Appeal.

            The Respondent No. 1 in both the Appeals have initiated a Consumer Complaint u/s 12 of the Act alleging that he is maintaining a Savings Bank Account with HDFC Bank and also availing of the banking service since 2008.  On 5.9.2013 at about 18:34:30 hours he was making payment of the West Bengal Professional Tax (for short, ‘P.Tax’) for an amount of Rs. 2,500/- through online from the HDFC Savings Bank Account No. 27716000004963 and suddenly the process of making payment of P.Tax became hung and at 18:35:01 hours a receipt copy has been generated showing in the name of M/s. Dona Chemical (Opposite Party No. 2) payment has been made for an amount of Rs. 63,429/- and the said payment was made from BOB, but the said amount of Rs. 63429/- was deducted from the Savings Bank account of the Complainant and the amount was deposited in the name of BOB.  On the same date, i.e. 5.9.2013, at about 18:52 hours the Complainant through his authorised person intimated the matter over phone and also sent the soft copy of the HDFC receipt through email for redressal of the grievances, but HDFC Bank regretted for immediate credit of the amount of Rs. 63,429/- to the bank account of the Complainant.  On 10.9.2013 and 12.9.2013 the Complainant made written representations to HDFC Bank, but no effective step has been taken.  On 18.10.2013 the Complainant lodged a General Diary with the Bidhannagar (East) Police Station against HDFC Bank for illegal deduction of the amount of Rs. 63,429/-.  However, on 19.10.2013 HDFC Bank straightway denied their liability.  Then the Complainant issued Notice to BOB to furnish bank statement of the Opposite Party No. 2 on and from 5.9.2013 to 6.9.2013 for confirmation of the Complainant as to whether any such amount of Rs. 63,429/- has ever been debited from the bank account of the Opposite Party No. 2.  The Complainant has alleged that the said amount has already been transferred in the name of West Bengal Value Added Tax (for short, VAT).  Hence, the Complaint has been filed with the following prayers, viz. (a) to pass an order by directing the Opposite Party Nos. 2 & 3 to make payment of the amount of Rs. 63,429/- along with 12% interest on and from 6.9.2013, (b) directing the Opposite Parties to make payment of compensation of Rs. 3,00,000/- for physical and mental harassment, (c) directing the Opposite Parties to make payment of litigation cost of Rs. 50,000/-, etc.

            The Opposite Party No. 1, i.e. HDFC Bank, by filing a Written Version disputed the claim stating that there are several procedures to be followed for making online transaction and by putting the confidential PIN the account may only be operated and as such, the alleged transaction could not be done unless the Complainant shared the confidential PIN with the third party.  Accordingly, the case is liable to be dismissed.

            The Opposite Party No. 2, i.e. M/s. Dona Chemical, inspite of receipt of the Notice, did not care to appear before the Ld. District Forum and as such, the case was heard and decided against M/s. Dona Chemical, i.e. the Opposite Party No. 2, ex parte.

            The Opposite Party No. 3, i.e. BOB, in their Written Version has averred that they had no deficiency in service since as per the Statement of Account the Complainant was not a Consumer under them.

            After assessing the materials on record the Ld. District Forum by the impugned judgment allowed the Consumer Complaint on contest against HDFC Bank and BOB and ex parte against M/s. Dona Chemical, i.e. the Opposite Party  No. 2, with a direction upon them to make payment of Rs. 63,429/- together with interest thereon @ 9% per annum from 6.9.2013, also directed to make payment of compensation of Rs. 50,000/- and litigation cost of Rs. 5,000/-.

            Being aggrieved by and dissatisfied with the said order HDFC Bank has preferred the First Appeal No. 1290/2014 and BOB has preferred the First Appeal No. 1203/2014.

            We have scrutinised the materials on record and considered the submissions advanced by the Ld. Counsels appearing for the parties.

            Admittedly, the Complainant/Respondent No. 1 of both the Appeals has a Savings Bank Account being A/c No. 027716000004963 with HDFC Bank and he is also availing online banking service.  On 5.9.2013 at about 18:34:30 hours he was making payment of the P.Tax amounting to Rs. 2,500/- through online from HDFC Savings Account and in the process of making payment, it became hung.  At about 18:35:01 hours a receipt copy has been generated which indicates the name of M/s. Dona Chemical, i.e. Opposite Party No. 2, and the payment has been made for an amount of Rs. 63,629/- and the said payment was made from BOB.  However, the amount of Rs. 63,629/- has been deducted from the Savings Bank Account of the Complainant and it was deposited in the name of BOB in the head of VAT, though the Complainant was making payment of P.Tax through online.  The Complainant has made several communications in this regard with the Opposite Parties, but all remain unheeded.  Finding no other alternative the Complainant approached the Ld. District Forum for redressal of his grievances.

            Needless to say, that the Complainant has a Savings Bank Account with HDFC Bank and since the Statement of Accounts indicates the genuineness of the claim of the Complainant, the Complainant must be considered as a Consumer within the meaning of Section 2(1)(d) of the Act.  Equally, HDFC bank being the service provider cannot absolve their responsibility if there is any deficiency on the part of them in dealing with the situation.

            The fact remains that the Respondent No. 1 being the Complainant was making payment for P.Tax and not for VAT.  But the Payment Slip has been generated by showing the payment made for VAT in place of P.Tax.  Had the Complainant any intention to make payment for VAT, certainly he would have pushed the button in the name of M/s. Dona Chemical, i.e. the OP No. 2.  The system was hung for a while and within eight seconds a Payment Slip was generated which indicates a system error and complication of online system conducted by HDFC bank through their service provider.

            To ascertain the actual state of affairs, the Complainant also issued letters to BOB with a request to furnish Bank Statement in the name of Opposite Party No. 2 from 5.9.2013 to 6.9.2013 for confirmation of the Complainant as to whether any such amount of Rs. 63,429/- has ever been debited from the bank account of the OP No. 2 and the said amount has been paid and/or transferred to VAT.  The said statement of BOB in respect of M/s. Dona Chemical, i.e. the Opposite Party No. 2, is available in the record.  The Statement of Account for the period from 5.9.2013 to 6.9.2013 clearly reveals that though the Opposite Party No. 2 availed e-banking facility, but there is no indication that the amount was debited from the account of BOB standing in the name of the Opposite Party No. 2.  The facts and circumstances indicate that no such amount of Rs. 63,429/- was debited from the account of BOB, i.e. the OP No. 3 to the authority of VAT in respect of the account of the Opposite Party No. 2.

            In that perspective, Mr. Prasanta Banerjee, Ld. Counsel appearing for BOB, has rightly submitted that the Ld. District Forum has committed an error by fixing the liability of all the Ops with regard to siphon off Rs. 63,429/- from the account of the Complainant.  We are in agreement with the Ld. Advocate for the Appellant relying upon the contention of the Complainant coupled with the Statement of Accounts dt. 5.9.2013 and 6.9.2013 furnished by BOB in respect of the account of the Opposite Party No. 2.  For the reasons as mentioned above the Appeal No. 1203/2014 should be allowed.

            However, HDFC Bank should have explained the reason as to how and in what manner the amount of Rs. 63,429/- had been siphoned off from the account of the Complainant after it was being hung at 18:34:30 hours.  The fact remains that just within a few minutes a receipt copy has been generated showing the name of the Opposite Party No. 2 and the payment has been made for the amount of Rs. 63,429/- and the said payment was made from BOB.  The Statement of Accounts furnished by BOB does not tally with the receipt copy which has been generated from HDFC Bank.

            Mr. P.R.Sinha Sarkar, Ld. Counsel appearing for HDFC Bank, has submitted that there was some mechanical complaints, as a result of which instead of Rs. 2,500/- towards the P.Tax of the Complainant is neither deposited nor debited from the Savings Bank Account and a sum of Rs. 63,429/- of the VAT amount payable by the Opposite No. 2 stood deposited and debited from the account of the Complainant.  It is also categorically mentioned that the said amount was not debited from the account maintained by BOB.  HDFC Bank cannot shirk off its responsibility simply on the reason that there was an online transaction and the Complainant availed of it by putting confidential PIN.  We have gathered that an amount of Rs. 63,429/- was debited from the account of the Complainant and when the Complainant did not intent to send the amount of Rs. 63,429/- as VAT and a receipt copy has been generated from HDFC Bank, certainly it is an obligation on the part of HDFC Bank to apprise of its customer as to how such an untoward incident has happened and being a Consumer what kind of assistance would be rendered to overcome the situation.  HDFC Bank did not make any attempt to resolve the dispute.  Rather, when a complaint had been lodged by the Complainant with the Bidhannagar (East) Police Station on 18.10.2013, just on the following day, HDFC Bank straightway denied their liability and tried to make understand to the Complainant regarding some mandate and process for making online transaction.  The materials on record indicate that the Complainant had eight years experience in dealing with online transaction and even assuming that the Complainant has little knowledge about it, the Bank as service provider cannot absolve their duty in making a customer aware about online transaction.  In this particular case, such a question does not arise because the receipt generated by HDFC Bank itself clearly indicates loopholes on the part of HDFC Bank.

            M/s. Dona Chemical, i.e. the Opposite Party No. 2, is equally responsible.  They did not appear before the Ld. District Forum to contest the case.  Similarly, inspite of receipt of Notice they have not come before this Commission to produce the Statement of VAT submitted by them for the year 2013-14.  Had it been produced by the Opposite Party No. 2, certainly it could have been easier to understand whether the amount of Rs. 63,429/- was credited to West Bengal Value Added Tax  in the name of the Opposite Party No. 2, M/s. Dona Chemical.

            Considering all the above and after giving due consideration to the submissions advanced by the Ld. Counsels appearing for the parties we have no hesitation to hold that the Appeal No. 1203/2014 being a meritorious one should be allowed and we do so.  However, the Appeal No. 1290/2014 being devoid of any merit should be dismissed and we do so.  But taking into consideration the facts and circumstances of the case, we do not make any order as to costs in these Appeals.

            Therefore, the Appeal No. 1203/2014 is allowed on contest against the Respondent Nos. 1 & 2 and ex parte against the Respondent No. 3, but without any order as to costs.

            However, the Appeal No. 1290/2014 is dismissed on contest against the Respondent Nos. 1 & 3 and ex parte against the Respondent No. 2, but without any order as to costs.

            In consequence thereof, the judgment and final order dt. 19.9.2014 passed by the Ld. District Forum in Consumer Complaint No. 08/2014 is hereby set aside and modified to the extent that the Consumer Complaint is allowed against the Opposite Party Nos. 1 & 2, i.e. HDFC Bank and M/s. Dona Chemical respectively, and dismissed against the Opposite Party No. 3, BOB.

            The Opposite Party Nos. 1 & 2 are directed jointly and severally to make payment of Rs. 63,429/- together with simple interest @ 9% per annum thereon from 6.9.2013 till its full realization and litigation cost of Rs. 5,000/- within 30 days from the date, otherwise the amount of Rs. 68429/- (Rs. 63,429/- + Rs. 5,000/-) shall carry a simple interest @ 12% per annum till realization in full.

            However, the Opposite Party Nos. 1 & 2 shall not be liable to make payment of any amount of compensation of Rs. 50,000/- and also Rs. 100/- per day as punitive charges as ordered by the Ld. District Forum.

            Both the Appeals are accordingly disposed of.