BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P.V.JAYARAJAN                                : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU V.R                                               : MEMBER

C.C. No. 244/2020 Filed on 12/11/2020

ORDER DATED: 24/08/2022

ORDER

SRI. P.V. JAYARAJAN,  PRESIDENT:

This is a complaint filed under section 35 of Consumer Protection Act 2019 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

The complainant is the wife of late V.Sanal Kumar IAS who was the account holder of the account No.913010029784235 in Axis Bank Thiruvananthapuram Branch.  The complainant is the nominee of the above said savings bank account.  On 18/12/2018, above said Sanal Kumar received an anonymous call from one Mr.Santhosh Varma from 62914770294 who introduced himself as SBI, Senior Manager.  The said Santhosh Varma informed the Aadhaar number and SB account number in respect of the account in the SBI, Vikas Bhavan branch of the account holder to him (Sanal kumar) and requested to confirm the same.  The above said information on Aadhar No. and account No. given by Santhosh Varma was correct and the account holder verified the said information as true.  After that the said Santhosh Varma demanded the account holder for the last six digits of the Debit Card of the above said account in SBI and he (Account holder) disclosed the same.  Subsequently the account holder received two other similar phone calls from 9244770000, 921966625 respectively.  But he didn’t disclose anything to the said calls. On the very same day, the husband of the complainant had received SMS through his Mobile No.9605961111 regarding the below mentioned unauthorized debit transactions.  1).UPI/P2A/835210954614 for Rs.20,000.  2).UPI/P2A/835210965780 for Rs.10,000.  3).UPI/P2A/835210965467 for Rs.20,000.  4). UPI/P2A/835210949283 for Rs.20,000.  5).UPI/P2A/835210955752 for Rs.10,000.  6)UPI/P2A/835210968604 for Rs.20,000.  The account holder had not received any OTP (One Time Password) before the said unauthorized debit transactions.  It is humbly submitted that the details of the account holder available in the bank were leaked and entire unauthorized debit transaction by the bank without generating any OTP confirmation from the account holder in respect of the above said transactions.  There was negligence on the part of the bank officials regarding the above said transactions because the details of CVV of the debit card was not disclosed to anyone by the account holder and no OTP was generated in respect to the same.  Thereby, it is revealed that the personal details of the account holder are disclosed or published to a third person due to the negligence of the said bank officials.  Hence, the 1^st and 2^nd opposite parties are liable for the above said unauthorized debit transactions.  On the above said date, there were another four unauthorized debit transactions for Rs.70,000/- from his (Sanal Kumar) savings bank account No.67388301055 in SBI, Vikas Bhavan branch.  The said unauthorized debit transactions in SBI was done as that of unauthorized transactions in Axis Bank i.e., without sharing the details of CVV in the debit card in SBI and generating OTP for the same.  It is further submitted that, the complainant’s husband filed a petition before the Cyber Cell of Kerala Police regarding the above said unauthorized debit transactions from the above said accounts and such investigation is yet to be completed.  On 18/12/2018, the account holder intimated the fact of the said unauthorized debit transactions to the Axis Bank, Thiruvananthapuram branch and also requested the Bank to refund the said amount.  But the opposite parties failed to reply to the said letter till date of this complaint.  On 16/09/2020, the account holder (Sanal Kumar) expired.  Thereafter on 08/10/2020 the complainant who is his nominee lodged a complaint (complaint No.202021015002657) against the Axix Bank before the banking ombudsman, Thriruvananthapuram with regard to the said unauthorized debit transactions from the account and to refund the amount transacted.  The complainant received an order of the ombudsman Thiruvananthapruam stating that the complaint was treated as closed because on year and on month has elapsed from the date of complaint with Bank and therefore, they are unable to intervene in the said matter.  Before the unauthorized debit transactions, the account holder hadn’t received any OTP from the Bank.  Hence there is no willful negligence or default on the part of the account holder.  The account holder intimated the said unauthorized debit transactions to the bank and requested to block his account on the very same day of the said transactions.  The entire transactions are made without the consent of the account holder.  The data of the account holder leaked to a anonymous person which shows failure on the part of the 1^st and 2^nd opposite parties and hence they are jointly and severally responsible for the loss in connection with the above said debit transactions.  Hence the complainant approached this Commission to redress her grievances.  After admitting the complaint notice was issued to the opposite parties. Though the opposite party accepted the notice, they failed to appear before this Commission and hence on 10/01/2022 the opposite parties were called absent and set ex parte.  Complainant filed affidavit and documents. 

Evidence in this case consists of PW1 and Ext.A1 to A9 marked on the side of the complainant.  The opposite parties being declared ex parte, there is no oral or documentary evidence from the side of the opposite parties. 

Points to be considered:

     1) Whether there is any deficiency in service on the part of the Opposite Party?

     2) Whether the complainant is entitle for the relief claimed?

 3) Order as to cost?

Heard.  Perused records and affidavit.  To substantiate the case of the complainant, the complainant herself sworn an affidavit as PW1 and Ext.A1 to A9 documents were produced and marked.  Ext.A1 is the copy of the front page of the cheque book issued by the opposite party to the complainant.  Ext.A2 is the copy of the Aadhar card of the complainant.  Ext.A3 is the copy of the complaint submitted by the complainant’s husband to the Cyber Cell of Kerala Police.  Ext.A4 is the screen short of the E-mail Communication dated 18/12/2018.  Ext.A5 is the copy of the request dated 10/01/2019 submitted by the complainant’s husband to block the account.  Ext.A6 is the copy of the death certificate dated 25/09/2020 issued by the corporation of Thiruvananthapuram.  Ext.A7 is the copy of the complaint filed before the banking ombudsman against the opposite party.  Ext.A8 is the E-mail received by the complainant acknowledging the registration of the complaint for the banking ombudsman.  Ext.A9 is the copy of E-mail dated 14/10/2020 received from the banking ombudsman.  There is no oral or documentary evidence from the side of the opposite party.  As there is no contra evidence from the side of the opposite party, the evidence adduced by the complainant stands unchallenged.  The definite case of the complainant is that he has not received any OTP prior to the transaction allowed in the complaint.  According to the complainant the details of the account holder available with the bank were leaked and the entire unauthorized debited transaction by the bank without generating any OTP confirmation from the account holder in respect of the transaction involved in this complaint and hence there is negligence on the part of the bank officials regarding the above said transaction, because the details of CVV of the debit card was not disclosed to any one by the account holder and no OTP was generated in respect of the same.  In the absence of any contra evidence from the side of the opposite parties, we accept the evidence adduced by the complainant.  By swearing an affidavit as PW1 and marking documents Ext.A1 to A9, we find that the complainant has succeeded in establishing her case against the opposite parties.  From the available evidence before this Commission, we find that there is deficiency in service on the part of the opposite parties which resulted in mental agony and financial loss to the complainant.  As the mental agony and financial loss was caused to the complainant due to the deficiency in service on the part of the opposite parties, we find that the opposite parties are jointly and severally liable to compensate the complainant.  In view of the above discussions, we find that this is a fit case to be allowed in favour of the complainant. 

In the result the complaint is allowed.  The opposite parties are directed to refund Rs.1,00,000/- (Rupees One Lekh Only) to the complainant along with Rs.30,000/- (Rupees Thirty Thousand Only) as compensation and Rs.2,500/- (Rupees Two Thousand Five Hundred Only) being the cost of this proceeding to the complainant within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9 % per annum from the date of receipt of this order till the date of remittance /realization.      

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 24^th  day of August, 2022.    

   Sd/-

                                                P.V.JAYARAJAN                 : PRESIDENT

    Sd/-

PREETHA G. NAIR             : MEMBER   

                Sd/-

                                                                        VIJU V.R                    : MEMBER   

R        

C.C. No. 244/2020

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

                                                                                                                              Sd/-

                                                                                                                       PRESIDENT