Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

          This appeal takes an exception to the order dated 25/03/2010 passed in consumer complaint No.141/2009, Shri Nikhil Phutane thru Constituted Attorney Mr.Jagannath Phutane V/s. Mr.Aditya Puri, Chairman, HDFC Bank & Anr., by the District Consumer Forum, Central Mumbai (‘Forum below’ in short).

          Undisputed facts are that the complainant-Mr.Nikhil Phutane is one of the customers of HDFC Bank (hereinafter referred to as ‘Bank’ for brevity) holding his account with Santacruz Branch with Customer ID No.24901291.  He had obtained net banking facility from the Bank.  He was working as an official with the Qatar National Bank at Quatar.  He had deposited in his account `3 Lakhs and `1,50,000/-  and in all `4,60,000/- and which was in balance as on 23/10/2008 in his account.  He had checked the balance on net, but could not verify the account in the month of December due to his professional commitments.  However, when he received the Bank statement for the month of November 2008, he was surprised to see that the entire amount in balance in his account of `4,60,000/- was transferred and being credited in the beneficiary’s account.  He made a complaint with the Bank, but in vain and ultimately, he lodged a criminal complaint with Santacruz Police Station on 16/01/2009.  The police lay hands on the culprit and recovered amount of `70,500/- only.  Alleging negligence on the part of the Bank, according to the complainant, the balance amount of `3,89,500/- is recoverable from the Bank.  Therefore, he filed consumer complaint against one Shri Aditya Puri, described him as ‘Chairman of HDFC Bank’ and against the Branch Manager of HDFC Bank Ltd., Santacruz Branch.  O.Ps./appellants herein denied the allegations and the claim made. They further deny any fraudulent act on the part of the Bank about transferring the amount contrary to the instructions which were received from the complainant/Mr.Nikhil Phutane through net banking.  Since, complainant did not adversely respond to the verification emails and sms about the transfer request received by the Bank, the transfer was effected.  It is also pointed out that, after completion of the transaction, complainant was again informed by the Bank about the same.  It is also pointed out that in availing Net Banking Facility, it is only the complainant, who knows his Net Banking Password (‘IPIN’ in short) and nobody can access the account of the complainant for giving instructions.  They further pointed out that the complainant failed to observe the security norms and there are more than one reason to which the Bank is unconcerned for alleged misuse of the account of the complainant with the Bank.  It is also submitted on their behalf that the alleged fraudulent transaction was reported to the bank on 31/12/2008 i.e. after 47 days of the transaction date.  No Bank employee was involved in the said transaction much less, in a fraudulent manner and with this they asked to dismiss the consumer complaint.

          Forum below upholding the contention of the complainant passed the impugned order awarding claim and feeling aggrieved thereby, O.Ps. preferred this appeal.

          We heard Mr.Ashutosh Marathe, Advocate for the appellants and Mr.Nahar, Advocate for the respondent.  Perused the record.

          In the instant case, though the service provider is the Bank, namely, HDFC Bank Ltd., the same is not made a party to the consumer complaint.  Mr.Aditya Puri, who is Chairman of the HDFC Bank Ltd., certainly a person in his individual capacity, is not the service provider and so as to the case of Bank official, namely, Branch Manager of Santacruz Branch of HDFC Bank Ltd.  Therefore, complaint against these persons is misconceived, particularly, in absence of the Bank as a party.

          Leaving apart the mis-joinder of the parties or the issue that the Bank is not made a party, even on merits, it cannot be said that the complainant established the case of alleged negligence vis-à-vis deficiency in service against the Bank.  Complainant/Mr.Nikhil Phutane did not come forward to testify particularly, in the background of the fact that the Bank had correspondence with him through emails and sms, sending alert email and sms on receiving request for fund transfer and also sending email and sms on completion of the transaction.  It is he, who only could depose about it.  His father and Constituted Attorney/Mr.Jannath  Phutane, certainly, is not a person who has personal knowledge of these facts and could sworn an affidavit about the same.  Similarly, is the case in respect of operation of his bank account by the complainant/Mr.Nikhil Phutane during relevant period.  There is absolutely no evidence adduced on behalf of the complainant to show that any Bank official of the HDFC Bank gloved hands with the culprit or any such official acted in a fraudulent manner in the transaction in question.  In fact, Police investigation shows that culprits had nothing to do with any one of the Bank officials of HDFC Bank.  Two of them are customers and account holders of HDFC Bank at different branches.  But, that does not mean that any Bank official is involved fraudulently in connection with the transaction in question.

          In this context, Branch Manager of Santacruz Branch of the HDFC Bank, namely, Mr.Mairaj Uddin sworn affidavits dated 24/08/2009 and 16/10/2009 throwing light on the entire transaction.  He also produced on record security instructions and TPT form executed by the complainant for obtaining Net Banking Facility.  It clearly stipulates and makes aware the complainant about risk involved.  Even according to the complainant, system of the Bank might have been hacked, but there is no evidence of anything of this kind.  On the contrary, the Bank referred to verifications of its security system and absolutely there is no case of hacking of the Bank’s web-site information.

          It is further revealed from the evidence lead on behalf of the O.P./Bank i.e. affidavit of Branch Manager/Mr.Mairaj Uddin, supra that after having received information about adding name of beneficiaries and request of transfer of fund in favour of beneficiary of the complainant, they had sent alert email and sms and since within 24 hours no adverse response was received, they allowed the transfer of fund and after transfer of the fund also sent information to the complainant through email and sms.  Delivery of such emails on the email address given by the complainant is established from the certificate dated 12/10/2009 issued by Air2web India Pvt. Ltd. through whom those emails were sent and delivered to the complainant (Exhibit-OP3).  There is no denial of receiving of such emails and sms by the complainant himself, particularly, to rebut the evidence adduced in this respect on behalf of O.P, supra.  Forum below drawn an adverse inference against the O.P., stating that the Bank acted negligently in transferring the fund, only because, no response to the alert email and sms was received within 24 hours from the complainant.  The Bank was not under obligation to wait for response from the complainant to alert email and sms.  In these circumstances, drawing such an adverse inference and thereby to hold that the Bank was negligent vis-à-vis deficient in service is per se a perverse appreciation of the piece of evidence on part of the Forum below.

          Complainant referred to Section - 6 of the Rights and Obligations of the guidelines issued under Payment and Settlement System Act, 2007 read with National Electronic Fund Transfer (NEFT) System Procedural Guidelines of Reserve Bank of India.  But, in the instant case, the complainant failed to establish that the bank acted malafidely i.e. not in good faith and in violation of the security procedure.  On the contrary, affidavit of the Bank official/Mr.Mairaj Uddin negatived the case in this respect tried to be advanced by the complainant.

          Under the circumstances, what we find that the complainant miserably failed to establish that the Bank was negligent in allowing the transfer of fund or any official of the Bank fraudulently helped in said transfer of fund.  No deficiency in service on the part of the Bank is established.  As earlier observed there is no deficiency in service that could be alleged on the part of Mr.Aditya Puri, who is Chairman of the Bank or Mr.Mairaj Uddin, Branch Manager of HDFC Bank, Santacruz Branch of the Bank.  We hold accordingly and pass the following order :-

                             -: ORDER :-

1.       Appeal is allowed.  The impugned order dated 25/03/2010 is quashed and set aside and in turn, the consumer complaint No.141/2009 stands dismissed.

2.       In the given circumstances, there shall be no order as to costs.

3.       Copies of the order be furnished to the parties.