Tamil Nadu

StateCommission

CC/67/2015

M/s.Asahi Filter Fabrics Pvt Ltd, rep by its Managing Director Mr.S.B.Harikrishnan - Complainant(s)

Versus

The Branch Manager, Indian Bank-Erukkancheri Branch, and anr - Opp.Party(s)

M/s.D.Senthil Kumar

27 Jan 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

            BEFORE      Hon’ble Thiru Justice R. SUBBIAH          PRESIDENT

                                  Tmt. Dr. S.M.LATHA MAHESWARI            MEMBER

 

CC.NO. 67/2015

 DATED THIS THE 27^th  DAY OF JANUARY 2022

M/s. Ashai Filter Fabrics Pvt. Ltd.,

Rep. by its Managing Director S.B.Harikrishnan

No.356-C, West Avenue

Mahakavi Bharathi Nagar

Chennai – 600 039                                                       ....Complainant

 

                                                  Vs 

1.       The Branch Manager

Indian Bank, Erukkancheri Branch

No.51, GNT Road, Erukkancheri

Kodungaiyur, Chennai – 600 118

 

2.       Aircel Cellular Ltd.,Customer Care

Rep. by its Manager

5^th Floor, Spencer Plaza

769, Anna Salai, Chennai – 600 002                        ....Opposite parties

 

Counsel for complainant                               :   M/s D.Senthil Kumar

Counsel for 1^st opposite party                        :   M/s. P.K. Panneer Selvam

Counsel for 2^nd Opposite party                       :   M/s. A.M.Venkata Krishnan

 

                This complaint coming before us for hearing finally on 2.11.2021 and on hearing the arguments of counsel appearing on bothsides and upon perusing the material records this Commission made the following order:

ORDER

Justice R. SUBBIAH,  PRESIDENT    

1.    The complainant had filed this complaint U/s. 17 of Consumer Protection Act 1986 praying for a direction to the opposite party to pay a sum of Rs.10,00,000/- towards the amount illegally withdrawn from the complainant’s bank account by the miscreants, to pay a sum of Rs.10,00,000/- towards compensation for mental agony, another sum of Rs.10,00,000/- towards damages for indulging in lethargic and callous attitude and unfair trade practice, alongwith a sum of Rs.50000/- towards interest payable to the bank in respect of the OCC loan further sum of Rs.50,000/-towards cost.

2.       The case of the complainant in brief is as follows:

           The complainant is a Private Limited company, registered under the Indian Companies Act, engaged in the business of manufacturing and sales of filters in various states of India.   The complainant is a company having banking transaction with the 1^st opposite party for their business requirements.  Considering the complainant’s banking transaction with the 1^st opposite party, they have sanctioned a sum of Rs.950000/- towards Open Cash Credit (OCC) facility.  The Managing Director of the complainant Mr.S.B.Harikrishnan was having Saving Bank Account No.428511078 with the 1^st opposite party’s bank and he was operating the same for his personal needs.   He has availed net service for RTGS Fund Transfer etc.  At this juncture the 1^st opposite party insisted to submit a personal mobile number for sending one Time Password for every transaction, and accordingly he had submitted his mobile No.9841279062 Aircel service viz. 2^nd opposite party herein. 

          When the complainant approached the 1^st opposite party bank for obtaining net banking facility for OCC account, the then Manager Mr.Sambandham of the 1^st opposite party informed that the said facility is not possible for the OCC account.  Hence under his advice, the said OCC account was linked to its Managing Director’s SB account for net transaction, and there was no separate net banking transaction facility availed by the complainant for OCC Account. 

          While so on late evening of 22.9.2014, the complainant could not avail the sim card service in his mobile and he received a display as No service.  For rectifying the technical snag, he contacted the Manager, Aircel Perambur Branch.  The Manager of 2^nd opposite party’s Perambur branch advised the complainant to give an application for issuance of duplicate sim card to rectify the problem.  Hence on 23.9.2014 he had submitted an application alongwith his id proof, based on the same he was issued with new duplicate sim. 

          Again on 29.9.2014 late evening he was not able to avail sim card service and he received a display in his mobile as No service.   Due to this technical snag he was not able to make any outgoing/incoming calls and receive any message, which   caused serious prejudice to him.  Again on 30.9.2014 when the complainant  contacted the 2^nd opposite party, the complainant was advised to give an application for issuance of duplicate SIM card to rectify the problem.  Hence he once again submitted an application alongwith id proof and obtained a new duplicate sim card. 

          While so, upon scrutinizing his sim card data in the system the Technical Officer of the 2^nd opposite party informed that some third parties have illegally purchased his duplicate card between 22.9.2014 to 30.9.2014 on two occasions from Velachery and Vepery Aircel Branch.  Hence the complainant requested them to provide the details about the persons who obtained duplicate card from the 2^nd opposite party’s office, however they  refused to do so.

          The complainant immediately verified his bank account and found that on 23.9.2014 without the complainant’s knowledge and consent a sum of Rs.3,00,028/- has been transferred to one Ajay Dutta from the complainant’s Bank account.  Again on the same day a sum of Rs.2,00,028/- has been transferred to one Md Zadar from the complainant’s bank account by net transaction.  It is pertinent to note here that on the same day there was no sim card service to the complainant’s mobile phone.  However on the same day, the said amount has been re-credited to the complainant’s account

          It is also further noticed that again on 30.9.2014 without the knowledge and consent of the complainant, a sum of Rs.2,00,028/- has been transferred to one Habi Bali and a sum of Rs.2,00,028/- has been transferred to one Bablu Sarkar and a sum of Rs.1,00,000/- has been transferred to one Promos Sen Gupta from the complainant’s bank account by net transaction.  Thus totally a sum of Rs.5,00,000/- had been transferred fraudulently from the complainant’s account to some third parties, with the connivance of the opposite parties staffs.  Further the complainant’s sim card was blocked on the day and illegally the 2^nd opposite party’s official have provided the complainant’s duplicate sim card to third parties with intention to swindle money from the complainant’s account under pre-planned manner.  On 1.10.2014 the complainant intimated the same vide a letter to the 1^st opposite party, and the same was acknowledged, however the 1^st opposite party had not taken any steps to recover or realise the amount from the miscreants. 

          He further personally met the Assistant Manager of the 1^st opposite party branch and requested to withdraw the net banking transaction facility to the complainant’s OCC account immediately, and the same was duly acknowledged by the bank.  On 5.10.2014 and on 11.10.2014 the 1^st opposite party have informed that the net banking facility had been blocked by the 1^st opposite party and also informed that personal CIF was delinked from the complainant’s Managing Director’s SB account.  On 13.10.2014, the complainant once again sent a letter requesting the 1^st opposite party to block net banking facility of the SB account and issue fresh login password for the said SB account, which letter was duly acknowledged by the opposite party. 

But again on 10.11.2014 the same technical problem had occurred in his sim card and he received a display as No service.  Due to this technical snag the complainant was not able to make any outgoing or incoming calls or received any message, which have caused serious prejudice.  When the complainant contacted the Manager, Aircel Poonamallee High Road, they have issued a new duplicate sim card.

          On adding fuel to the fire, on 11.11.2014 once again few miscreants have fraudulently withdrawn a sum of Rs.5,00,000/- from the complainant’s OCC account bearing No.428585472 under illegal manner.   Thus due to the opposite parties lethargic, callous attitude and dereliction of duty, the miscreants illegally swindled the complainant money via net transaction.  Therefore, the complainant had lost a sum of Rs.10,00,000/- from their account.  Thus alleging negligence on the part of the opposite parties, this complaint is being filed by the complainant, praying for a sum of Rs.10,00,000/- towards compensation for the amount illegally withdrawn from the complainant’s bank account by the miscreants and a sum of Rs.10,00,000/- towards mental agony, another sum of Rs.10,00,000/- towards damages for indulging in lethargic and callous attitude and unfair trade practice, alongwith a sum of Rs.50000/- towards interest payable to the bank in respect of the OCC loan further sum of Rs.50,000/-towards cost.

 3.      The case of the complainant was resisted by the bank, by filing version as follows:

          The complainant had opened a cash credit facility for their business purpose at the branch of the 1^st opposite party bearing Account No.428585472  and have also sanctioned a sum of Rs.950000/- towards the said OCC account.  The complainant’s Managing Director is having a Savings Bank Account No.428511078.  Mobile number is a mandatory requirement for availing net banking facility.  It is not true that the complainant had requested for net-banking facility for their OCC account which was rejected by the then Manager of the 1^st opposite party and on his request the said OCC bank account was linked to the complainant’s SB account for net transaction.  It is also not correct  to state that no separate net banking transaction facility was availed for OCC account of complainant.  Whereas the fact remains that the complainant’s company had availed the net banking facility for login on 25.9.2006 and for transaction TXN on 10.7.2010, and the banking official named in the complaint had served in the capacity of Chief Manager from 9.7.2012 and upto 15.7.2014 as per joining and relieving report.  The above fact very well proves that the complainant has come to this forum with unclean hands.  Regarding the availing of duplicate SIM Card for the complainant’s mobile number, misuse of SIM card is a matter between the complainant and the 2^nd opposite party and this opposite party  neither has knowledge nor is privy to the said affairs between them.  The one time pass words were being sent to the mobile number registered with this opposite party for all the net banking transactions done through the linked accounts in Customer Information File. 

          On 23.9.2014 RTGS transfer of Rs.3,00,000/- was made by the complainant in his OCC Account and another RTGS transfer of Rs.2 lakhs was also made on the same day by him.  But there were reversal entry of both the above said transactions which were made on the same day at about 15.58.51 hours, and the said fact was also confirmed by the complainant by his letter dt.1.10.2014. 

On 30.9.2014 the complainant made the following transactions viz.

1. RTGS transfer of Rs.2,00,000 to ICICI bank reference No.IDIBR52014093010369888

 

2. RTGS transfer of Rs.2,00,000 to ICICI bank reference No.IDIBR52014093010369947.

 

3. NEFT transfer of Rs.1,00,000 to State Bank of India Ref.No.IDIBH14273358326.

The above said transactions were made by using the User Id, Log in pass word and transaction password provided to the complainant and about which the complainant only has knowledge.  A unique one time pass word being generated for every transaction, to the registered mobile number, which only the complainant can be aware of.  Therefore, as per records of the opposite party, the fraudulent transactions had happened from the complainant’s end only and opposite party has nothing to do in this regard. 

A letter dt.1.10.2014 had been issued by the complainant to deactivate net banking for his OCC Account, since the letter was not signed by the authorised signatory, the complainant was advised to send another letter signed by the authorised signatory.  But without waiting for the said letter, the opposite party on the basis on the oral request had deactivated the Personal Customer id (CIF No.3078393919) on 1.10.2014 itself.  The complainant had neither sent the letter signed by the authorised signatory nor has shown any interest to change or remove his mobile number from the Personal CIF.  On  a complaint by the complainant to the Inspector of Police, Cyber Crime wing, Chennai for enquiry on 20.11.2014, with respect to the above issue, this opposite party had appeared and submitted their explanation. Being satisfied with the explanation offered by the first opposite party, the complaint was closed against them. As per complainant’s discussion, as requested by him the complainant’s personal CIF was delinked from the OCC account of the complainant.  The bank shall have no obligation to verify the authenticity of any transaction received from the user through or purporting to have been sent by the user via other than by means of verification of the user Id and the pass word, which would reveal that this opposite party is neither responsible nor liable for the transactions done at complainant’s end. The complainant is not a consumer as defined under Sec.2(1)(d) of Consumer Protection Act.  Thus prayed for dismissal of the complaint. 

4.       The 2^nd opposite party has also filed their version stating that the sim card for the complainant was changed only based on the request of the complainant.  Each time when the complainant placed request for change of sim, the new sim was given only on the written request of the complainant in writing.  Various letters given by the complainant requesting for sim was given in the complainant’s letter head and accompanied by the id proof and signed by the authorised signatory.  If at all the complainant’s documents are said to be misused, this opposite party could not be held responsible for the same, and no liability could be fixed on this opposite party.  The opposite party used to verify as to whether the ID proof, address proof and the signature etc. match with records already given to them, and then only the sim card change request would be accepted. The same procedure was adopted in the case also.  In fact the police authorities are investigating the matter, and therefore the complainant cannot suddenly jump to a conclusion that these opposite parties are liable to pay compensation.  Thus he sought for dismissal of the complaint. 

5.       In order to prove their respective case, proof affidavits are filed on either side alongwith documents, which are marked as Ex.A1 to A24 on the side of the complainant and Ex.B1 to B14 on the side of the opposite parties. 

6.       The Point for consideration is

          1.       Whether there is deficiency in service on the part of the opposite parties?

 

7.       POINT NO.1:

           It is the case of the complainant that he was sanctioned a sum of Rs.9,50,000/- towards Open Cash Credit (OCC) facility by the 1^st opposite party bank.  The complainant’s OCC account was linked to his SB account at his request.  While so on 22.9.2014 late evening he was not able to avail his sim card service, and he received a display in his mobile as ‘no service’.  Hence he contacted the 2^nd opposite party and requested them to rectify the technical nag.  He has also given an application for duplicate sim card to rectify the problem. 

          The same technical problem also had occurred on 29.9.2014 late evening, and he could not receive signal in his sim card service and the display in his mobile showed as “no service due to technical snag’.  Again he contacted the 2^nd opposite party, and on their advice he submitted an application for issue of new sim card. 

          On both occasions he was issued with a new duplicate sim card in order to rectify the problem. 

          After that, to his shock, he came to understand, that during those period i.e., from 22.9.2014 to 30.9.2014 without his knowledge and consent unauthorisedly money was transferred from his account to somebody.  On 23.9.2014 a sum of Rs.3,00,028/- had been transferred to Ajai Dutta and again on the same day a sum of Rs.2,00,028/- had been transferred to Md Zadar.

          Likewise on 30.9.2014 a sum of Rs.200028/- had been transferred to Habi Bali and a sum of R.2,00028/- to Bablu Sarkar and a further sum of Rs.1,00,000/- had been transferred to Promos Sent Gupta without his knowledge and consent.  On verification it was told by the 2^nd opposite party’s Perambur branch that during those period two duplicate sim cards were issued at Velachery and Vepery branch to some unauthorised persons without the knowledge of the complainant.

          Now the case of the complainant is that on 23.9.2014 and 30.9.2014 the sim card was purposely blocked only to indulge in fraudulent activities for transferring money from the complainant’s account.  For getting the One Time Pass Word (OTP) to enable them to transfer the money, this sim card blockage happened.  These fraudulent activities happened with the connivance of the 1^st opposite party’s staff.   Though a complaint letter had been given to the 1^st opposite party, they have not taken any steps to recover the money from the miscreants. Therefore, there is deficiency in service on the part of the opposite parties.  Due to the said act of the opposite parties, the complainant had lost more than Rs.5 lakhs.

8.       But the opposite parties have stoutly denied the said allegations stating that it   is only after verifying the id, duplicate sim card would have been issued, if at all any mistake had happened, it should be due to the negligent act of the complainant.

Likewise the 1^st opposite party would contend that on request of the complainant his net banking facility was blocked.  Without the knowledge of the complainant the money could not be  transferred. 

9.       Having considered the facts and circumstances of the case, it could be seen that it is not a straight case to come to a conclusion, that there is deficiency in service on the part of the opposite party.  On the other hand there are disputed facts hidden in the complaint.  The pleading of the complaint is not clear in describing the events.  Therefore merely based on the pleadings, this commission cannot give a relief to the complainant.  Whereas, it is the case where elaborate oral evidence should be adduced to find out who is at guilt.  Without doing so merely by accepting the case of the complainant relief cannot be granted.  Therefore the proper remedy can be given only by the civil court, where the complainant can prove his case by adducing proper elaborate evidence.  In view of the above, we cannot grant any relief to the complainant.  Accordingly this complaint is liable to be dismissed.

 

10.     In the result, the complaint is dismissed.  No order as to cost.

 

 

 

  S.M.LATHAMAHESWARI                                                                 R SUBBIAH     

           MEMBER                                                                                        PRESIDENT

 

Exhibits filed on the side of complainant

A1      19.08.1996    Complainant’s company incorporation certificate

A2      26.11.2008    Complainant’s OCC loan sanction letter

A3      01.09.2014to 

          30.11.2014    Complainant’s OCC  account statement

A4      01.10.2014    The extract of Board Resolution issued by Board of directors

A5      20.07.2014    Mobile payment bill issued by the 2^nd opposite party

A6      20.08.2014    Mobile payment bill issued by the 2^nd opposite party

A7      20.09.2014    Mobile payment bill issued by the 2^nd opposite party

A8      23.09.2014    Letter by complainant to 2^nd OP

A9      30.09.2014              -do-

A10     01.10.2014    Letter by complainant to 1^st opposite party

A11     02.10.2014    Complaint by complainant to Commissioner of Police

A12     13.10.2014    Letter by complainant to 1^st OP and acknowledgement

A13     16.10.2014              -do-

A14     16.10.2014    Summons by CCB to the complainant

A15     11.11.2014              -do-

A16         “              Letter by complainant to Commissioner of Police

A17     13.11.2014    Letter by complainant to 1^st OP

A18     19.11.2014    Letter by complainant to banking Ombudsman for Tamil Nadu

A19           “            Letter by complainant to 1^st OP

A20     24.11.2014    Reply by 1^st OP to complainant

A21     16.12.2014    Legal notice by complainant to 1^st OP

A22     19.01.2015    Reply notice by 1^st OP to complainant’s counsel

A23     20.01.2015    Legal notice by complainant to 1^st OP

A24     17.06.2015    FIR No.228 / 2015 registered by the Inspector of Police Cyber Crime

                                                  Branch Chennai

 

 Exhibits filed on the side of Opposite parties

B1      07.01.2015   Statement of account

B2            “                      -do-

B3      09.07.2015    Joining report of P.Sambantham

B4      15.07.2014    Relieving report of P.Sambandam

B5      23.09.2014 to

          30.09.2014    Statement of online transaction

B6      01.10.2014    Letter from complainant

B7           “             Deactivation report for CIF

B8      11.11.2014    Letter from complainant

B9            “                      -do-

B10           “                     -do-

B11           “            Deactivation report for CIF

B12     24.11.2014    Letter from 1^st OP to complainant

B13                        Net banking application of complainant

B14     19.01.2015    Reply notice by 1^st OP’s counsel    

 

 

 

  S.M.LATHAMAHESWARI                                                                 R SUBBIAH     

           MEMBER                                                                                        PRESIDENT