MR. PRAVAT KUMAR PADHI, PRESIDENT:-
Complainant has filed C.C.Case No. 2/2023 U/s-35 of C.P.Act,2019 before this Commission seeking a direction for payment of maturity value of his fixed deposit bonds within 30 days with appropriate interest.
Fact of the Complainant’s case is that, he is a retired senior citizen and kept his money in fixed deposit with Op for one year with interest @ 5.5% on 11.01.2021 and 28.05.2021 bearing A/C No. 31468704581 & 37721075225. The Complainant has stated that when he approached (date not mentioned & circumstances not narrated as to why he approached prior to maturity), the Op said that his fixed deposit has been transferred to other account Rs. 4 Lakhs each from 2(two) accounts and Op said you have given OTP to the fraud people for which the price deducted from your account & Op is not responsible. The Complainant stated that he has never given OTP and questioned how can fixed deposit amount has been transferred to other person is not understand as such it is violation of section 2(ii), deficiency in service and unfair trade practice as per section 2(47) of C.P.Act.
The Op No.1 have filed their written version stating that, section-2(ii) reads as follows –
“ recognized by a State Government, subject to such guidelines as may be issued by the Central Government in this behalf; or
As such there is no violation of section 2(ii) or there is deficiency in service Section 2(47) reads as follow-
“ Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices”.
The Complainant is having two fixed deposit, one is Term Deposit on dt. 03.08.2021,A/C- 37721075225 for one year interest 5.5% with principal amount with Rs. 4,99,820/- value dt. 28.05.2021, maturity dt. 28.05.2022 and another Term Deposit A/C-31468704581 amount Rs. 5,00,100/- at 5.5% interest deposited dt. 11.01.2021, maturity dt. 11.01.2022. It is also stated that when the complainant approached the Bank official for withdrawal of maturity value with both the Fixed Deposit Bond, the Bank (Ops) officials said that his 8 Lakhs deposited amount in Fixed deposit transferred to other account 4 Lakhs each from two accounts.
The Complainant Prahallad Das is having 7 fixed Deposit Account with this Op-Bank out of which the dispute relates to 3 fixed Deposits. Complainant is having a fixed deposit account bearing No. 37468704581 against which the loan A/C-41143622355 for Rs. 3,75,000/- was generated through online process on sharing of OTP on dt. 23.07.2022, out of which an amount of Rs. 1,00,000/- has been transferred to some other account. Complainant also having a fixed deposit bearing No. 36827181956 against which the loan A/C-41143551267 for Rs. 4,50,000/- was created in same process ondt.23.07.2022 and the said loan amount has been transferred in two phases, one with Rs. 4,00,000/- and another with Rs. 50,000/-. Complainant is having a fixed deposit bearing No. 37721075225 against which the loan A/C No. 41143569332 or Rs. 74,800/- was generated in same process on dt. 23.07.2022 on sharing in OTP, but the said loan amount has not been transferred and is remained intact. It is not that an amount of Rs. 4,00,000/- has been transferred from the said deposit. The said incident dt. 23.07.2022 was fourth Saturday & Bank holiday. The entire loan process has been generated through Digital platform on sharing of OTP from Regd. Mobile No. 9433888061 of the Complainant. The said entire process i.e internet banking through online process. It is to clarified that by confirming the OTP & opening of the loan account, the beneficiary has been added & approved through OTP, then the fund has been transferred to the account of said added beneficiary. In the entire process the OTP was delivered to the Regd. mobile of the Complainant, before initiation of the transaction. So it is not possible to have all these transaction without sharing the OTP from the Regd. mobile of the Complainant during the process. The OTP is generated through system without manual intervention and it involves the role of the Regd. mobile phone of the customer. On dt. 19.12.2022, the Complainant claimed such transactions as fraudulent transaction & the Bank advised him to immediately lodged F.I.R at concerned Police Station in P.S Case No. 658/22 at Patkura Police Station & the Police has taken of the investigation.During such investigation by the Police, the OP-Bank has provided all the details along with the beneficiary details to whom the amount has been transferred. So also the Bank has provided all the available relevant documents.
Complainant filing this case before this Commission has simultaneously filed the complaint before the Banking Ombudsman of RBI and has also lodged the F.I.R at Patkura Police Station and the cases has been registered, where the real facts must come to light & the miscreants involved in the alleged fraud must be brought under prosecution. Complainant without realizing his own fault of sharing the OTP has blamed the Bank and its officials and has crossed the limit & has mentioned in paragraph-8 that the “ SBI Mahal Branch have records of corruption & illegal activities of its staffs.
The Op-1 also filed the application dt. 30.06.22 of Complainant where Complainant admitted to have disclose Account No., ATM No. to the fraud people & prayed to take action (block) after 2 days on dt. 02.07.22 and submitted another application to open his all account and ATM. Again on dt. 04.07.22 Complainant has submitted application to block only A/C No. 34695260919 also UPI-disable & ATM, but there is fraud in fixed deposit Accounts.
On dt. 23.07.22 the fraud has been committed by unknown person which was 4th Saturday & holiday in 2 fixed deposit accounts stated above amounting Rs. 8 Lakhs (Rs. 4 lakhs each fixed deposit).
Though the Complainant has supplied the details i.e, OTP, A/C No. etc. he has requested on 02.07.22 to Op to open all his account & ATM and again on 04.07.22 applied to block only his A/C No. 34695260919 & ATM but the gang to whom the Complainant has shared everything have been taken loan from his fixed deposit which was not blocked. As per the information of Complainant Police investigation is in progress which the Complainant has suppressed in the C.C.Case but he has lodged F.I.R on dt. 22.12.22 bearing F.I.R No. 0658 in Patkura Police Station and the Op-1 has lodged F.I.R. bearing No.0659 at same police station on same date. The Complainant has misbehave and threatened the OpNo.1.Both the cases are sub-judice.
Ld. Counsel for Op has relied on the decision of Honbl’e Supreme Court in Civil Appeal No. 7289 of 2009 in the case of Chairman & Managing Director, city Union Bank Ltd. & Another –vrs- R.Chandramohan wherein the Honbl;e Apex Court has lied-
“ Consumer Protection ct, 1986- The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortuous acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “ deficiency in service”, as well as settled, has to be distinguished from the criminal acts or tortuous acts. There could not be any presumption with regard to the willful fault, imperfect, shortcoming or inadequacy in the quality, nature & manner of performance in service, as contemplated in Section 2(1) (g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it”.
The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature & manner of the performance which is required to be performed by a person in pursuance of a contact or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The Complainant has on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished for the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of Commission and omission attributable to the respondent which otherwise do not amount deficiency in service.
Honbl’e National Commission in the case of Life Insurance of India –vrs- Dodda Sambalah & Others in R.P.No. 729/1994 has deficiency in service is-
“ Consumer Protection Act, 19986-Section 21-Revision-Section2(1)(g)-‘Deficiency in service’- ‘Insurance’- Cheque consisting of survival benefits transmitted-lost in transit- Someone encashed by opening forged account-Police investigating the matter-Whether amounts to deficiency in service on the part of L.I.C ?-(No).
The District Forum as well as the State Commission had to await the report of investigation by Police & could direct payment by LIC. If it was established that the theft, fraud, forgery or impersonation was played by a person other than the Complainant or by his connivance.We wish to say no more at this stage. The impugned orders of the State Commission dt. 29.4.94 and of the Dist. Forum dt. 7.3.92 are set aside and the case is remanded back to the District Forum, Warangal to obtain the result of the investigation by the Police Authorities in pursuance of the complainant lodged and thereafter proceed to determine the complaint in accordance with law.
Honbl’e National Commission in M/s Tarachand Lal Chand –vrs- Oriental bank of Commerce Gaushala Road in R.P.No. 218/2009 said that “ Bank cannot be held when money is wrongly withdrawn from account of a customer due to his carelessness”.
Honbl’e National Commission in the case of Capital Charitable & Education Society –vrs- Axis bank Ltd., where Honbl’e National Commission has held as under-
“ On the otherhand, Ld. Counsel for the Op-Bank stated that they are not in a position to reply & satisfy the questions raised in the complaint as all the records have been taken away by the police authorities and the same are now the part of the criminal case that is going on before the competent criminal court. The charge-sheet has already been filed in the matter and therefore, the veracity of the Complainant could only be known after the decision of the competent criminal court in the criminal case. Ld.Counsel stated that the written statement has been filed on the basis of whatever records were available with the bank and may not entirely cover the true position, which the bank would have taken, had all the records been available with the bank. This Commission has taken a consistent view that the cases related to fraud and/or forgery cannot be decided by the Consumer Forum as the proceeding in Consumer Forum are summary in nature. This Commission has held in the following case that the matter relating to fraud and forgery cannot be decided under the proceedings under the Consumer Protection Act, 1986. For rest of the Complaint, we have reached to the conclusion that the transactions involve fraud and forgery right from the stage of issuance of the cheques to the stage of payment of these cheques to unidentifiable persons. It has been already found that this Commission cannot entertain this remaining complaint where the allegations are based on fraud and forgery. Accordingly, the reaming complaint is dismissed as not maintainable before this Commission. However the liberty is granted to the complainant to approach the Civil Court having jurisdiction to decide the complaint for redressal for the grievances.
Complainant has also relied on a paper publication but did not produce the copy wherein Honbl’e National Commission has stated that Senior Citizen should not be harassed. Each case has to be decided on its own merit and there is no straight jacket formula that every Senior Citizen can get relief even if there is no deficiency on the part of Op.
In the present case Complainant ahs not come with clean hand and suppressed facts regarding sharing OTP, pending of criminal case etc. & also pending complain before Ombudsman prior to filing of C.C.Case, Consumer Commissions proceeding are summary in nature and there is disputed question of fat& we also find no deficiency in service as the Complainant by sharing A/C No. OTP etc to the fraud gang. As such there is no deficiency in service on the part of Ops.
With the aforesaid observation and direction the C.C.Case No. 2/2023 is hereby dismissed. No order as to cost.
Issue extract of the order to the parties concerned.
Pronounced in the open Commission, on this the 8th day of August,2023.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
