State Consumer Disputes Redressal Commission
Smt. Leela Bharati vs 1. The Hdfc Bank Limited, on 4 September, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/1223/2013 (Arisen out of Order Dated 03/07/2013 in Case No. First Appeal No. CC/15/2011 of District Hyderabad-II) 1. Smt. Leela Bharati W/o. Ramesh, Aged about 32 years, Occ Private Employment, R/o. H.No.6-5-15, Nr Hanuman Temple, Opp. Vimala Theatre, Balanagar, Hyderabad-42 2. Presently residing at F.No. 102, Sri Balaji Nest, HAL Colony, Opp. Geetanjali concept School, UMCC, Gajularamaram Road, Hyderabad. ...........Appellant(s) Versus 1. 1. The HDFC Bank Limited, Regd. Off. at Ramon House, 169, backbay Reclaimation, HT Parekh Marg Churchgate , Mumbai-400 020. Rep. by its Chairman and Mananging Director 2. 2. The HDFC Bank Limited, Begumpet Branch, D.No. 1-10-60/3, Begumpet Suryodaya, Hyderabad-500 003. Rep. by its Branch Manager. 3. 3. G. Krishna D/o. Not Kown to the complainant Branch Manager, The HDFC Bank Limited, Begumpet Branch, D.No.1-10-60/3, Begumpet Suryodaya, Hyderabad-500 003. 4. 4. The Sub Inspector of Police, Chair Duty CCS, D.D. Hyderabad. Central Crime Station, Beside Control Room Hyderabad. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 04 Sep 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : At HYDERABAD FA No. 1223 of 2013 AGAINST CC NO.15/2011, DISTRICT FORUM -II, HYDERABAD Between : Smt. Leela Bharati, S/o Ramesh, Aged about 32 years, Occ: Private employment, R/o H.No. 6-5-15, Nr Hanuman Temple, Opp. Vimala Theatre, Balanagar, Hyderabad -42 Presently residing at F.No. 102, Sri Balaji Nest, HAL Colony, Opp. Geetanjali Concept School, UMCC, Gajularamaram Road, Hyderabad ... Appellant/complainant And The HDFC Bank Limited Regd. Off. At Ramon House, 169, Backbay Reclamation, H T Parekh Marg Churchgate, Mumbai - 400 020 Rep. by tis Chairman and Managing Director. The HDFC Bank Limited Begumpet Branch. D.No.1-10--60/3, Begumpet Suryodaya, Hyderabad - 500 003 Rep. by its Branch Manager. G. Krishna, D/o not known to the complainant Branch Manager, The HDFC Bank Limited, Begumpet Branch, D.No. 1-10-60/3, Begumpet Suryodaya Hyderabad - 500003. The Sub Inspector of Police, Chair Duty CCS, D. D. Hyderabad Central Crime Station, Beside Control Room, Hyderabad ( R-4 not necessary party ) .. Respondents/opposite parties Counsel for the Appellant/complainant : M/s. Praveen Kumar Challa & K. Venkateswarlu Counsel for the Respondents/OPs : M/s. Srinivasa Rao Pachwa Coram : Honble Sri Justice B. N. Rao Nalla ... President And Sri Patil Vithal Rao ... Member
Monday, the Fourth Day of September Two Thousand Seventeen Oral order : ( per Hon' ble Sri Justice B.N.Rao Nalla, Hon'ble President ) ***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the complainant to set aside the impugned order dated 03.07.2013 made in CC No. 15/2011 on the file of the District Forum II, Hyderabad.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3) The case of the complainant, in brief, is that she is the Account holder bearing A/c. No. 06211050055733 of the opposite parties 1 to 3 Bank since 16.01.2008, and from then onwards, her salary has been remitting to the same by her employer. On 15.10.2010, she noticed that an amount of Rs.57,400/- was transferred from her Account to third party Account without any intimation or notice. Immediately, she gave complaint to customer care and on their advice she approached the OPs 2 and 3 on 16.10.2010 since 15.10.2010 is holiday . Except blocking of her account, they did not take any action for recovery of the said amount. She further complained that she never parted her Customer ID and net banking password to anybody at any point of time. On her complaint to OP.4, FIR 279/2010 was registered but she did not know what steps were taken. Hence the complaint alleging deficiency in service to direct the opposite parties to recover a sum of Rs.57,400/-, to pay Rs.1,00,000/- for mental agony, to pay Rs.1,00,000/- towards compensation for the loss caused due to sudden withdrawal of the money and costs of Rs.5,000/- along with interest @ 24% P.A.
4) The opposite parties 1 to 3, while admitting that the complainant is their Account holder bearing A/c No. 0621105005573, lodging of complaint on 16.10.2010 for illegal transfer of amount of Rs.57,400/-through four transactions on 15.10.2010 to third party Account in Kolkatta, clarified that she was availing net banking services for the last three years and that she herself got registered for third party transfer services on June 6, 2008 and on 13.10.2010 there was a beneficiary addition, by name, Mr. Ashok Saha in her Third party Fund transfer facility list at 2.36 PM. The said beneficiary addition which are to be exclusive and confidential knowledge of the complainant alone. They further contended that the complainant orally informed that she was in receipt of a phishing mailer 10 to 15 days prior to the third party transaction and she forwarded the mail received to them. It is also stated by her that the " customer ID and password of net banking would have been unintentionally compromised/shared by her to the third parties". The complainant divulging her customer ID and net banking password was never disputed by her even at the time of filing the complaint with the police. Since the dispute is between the complainant and the third party, the Bank cannot be held responsible for initiating recovery steps against the third party. It is a case of cyber crime " Phishing Attack". Immediately after receipt of the complaint from the complainant, they blocked the Account of Mr. Ashok Saha . Hence there was no deficiency in service on their part and prayed for dismissal of the complaint.
5) During the course of enquiry before the District Forum, in order to prove her case, the complainant filed her evidence affidavit and got marked Ex.A1 to A-4 and the opposite parties filed Evidence Affidavit and got marked Ex. B-1 to B-6. Heard.
6) The District Forum, after considering the material available on record, dismissed the complaint.
7) Aggrieved by the said order, the complainant preferred this appeal before this Commission.
8) Counsel on both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments. Heard the counsel on both sides.
9) The points that arises for consideration are, (i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? (ii) To what relief ? 10). Point No.1 :
There is no dispute that the appellant/complainant is the Account holder bearing A/c No. 0621105005573 of the respondents/opposite parties, she lodged complaint on 16.10.2010 with them for illegal transfer of an amount of Rs.57,400/-through four transactions on 15.10.2010 from her account to the Account of Mr. Ashok Saha in Kolkatta and she was availing net banking services. There is also no dispute that on the complaint of the complainant, the police Registered FIR 279 of 2010 on 26.10.2010
11) (i) The main contention of the appellant/complainant is that despite her complaint dated 16.10.2010 on the illegal transfer of an amount of Rs.57,400/- from her Account to the Account of Mr. Ashok Saha in Kolkata, the respondents/opposite parties did not take any action.
(ii ) Rebutting the same, respondents/opposite parties contended that the complainant divulged her customer ID and net banking password to third party and mainly argued the matter depending upon the security aspects.
iii) We have perused the documents. Ex.B-3 dated 08.02.2008 is the application Form for third party Funds Transfer (TPT) through Net Banking (NB) said to have been filled by the complainant herself, which, supports the averment of the respondents/opposite parties that the appellant/complainant applied for net Banking services and availing the same. But the said document did not disclose that the appellant/complainant added the name of the said Ashok Saha as third party as alleged by them. In support of their argument, the respondents' bank did not place any evidence to prove that she disclosed her customer ID and Password to third party. Nobody discloses customer ID and password to third parties and give a chance to commit fraud to withdraw amount from one's Account, that too, to a person who is at a far of place without his identity. Further, she is educated and working as Software Engineer and hence we can expect that she is well aware of it. For the sake of arguments, if we assume that she revealed her customer ID and password Mr. Ashok Saha, she would not dare to give complaint to the police by involving herself into the fraud.
(iv) The appellant/complainant further argued that the respondents' bank intentionally did not choose to file any documents relating to log in and log out details of the account for the duration of 13.10.2010 to 16.10.2010 and she did not receive any SMS messages for the disputed transactions, for which, there is no rebuttal from the respondents' bank side.
(v). The respondents' bank further contended that it is a case of cyber crime " Phising attack'. From this assumption, it appears, the fraudster might have been withdrawn the amount illegally. Hence their contention, that she divulged her customer ID and password to third party, do not stand the ground. Therefore, it cannot be said that the appellant/ complainant divulged her customer ID and password to third party and hence the respondents' bank failed to prove the same.
12) (I ) The further contention of the respondents' bank is that immediately after receipt of the complaint about the transfer of the amount from her account they blocked the account of Mr. Ashok Saha in Kolkata and the dispute is only in between the complainant and the third party, hence they cannot be held responsible for initiating recovery steps against the third party.
(i) In this connection, it is to be observed that the respondents' bank already held their responsibility, but, to some extent, i.e., by blocking the account of Mr. Ashok Saha in Kolkata on the complaint of the appellant/complainant. If they have no responsibility how could they block his account and on what right they have acted upon it by blocking the account of Mr. Ashoka Saha. It seems that it is in the knowledge of the respondent's bank that fraud had occurred, some amount was transferred fraudulently to the account of third party, who is also their customer in Kolkata but they did not take any steps. Even after receipt of the complaint from the appellant, knowing fully well the details of the fraudster, they did not choose to initiate any recovery steps. It is their bounden duty and responsibility to safeguard the interests of their customers and alert them from credit and debit transactions through SMS messages and other available methods. There is no evidence before us that they have taken these steps. The main complaint of the appellant/complainant is that despite her complaint the respondents' bank did not take any steps to recover the amount from the fraudster. For the sake of arguments, if we consider that her customer ID and password were disclosed either by means of phising attack or e-mail or through such illegal means, but the amount was fraudulently transferred from the account of the appellant/complainant to the account of the another customer, who is no other than their own customer, and the account number, transaction details and location of the fraudster are known fully well to the respondents' bank. The respondents' bank always relied on security aspects only. In such circumstances, it is their bounden duty to take necessary steps to recover the said amount from him by following due procedure and see to return the same to the account of the appellant. Since the amount was illegally withdrawn from the account maintained by them, it cannot be said that the dispute is in between the appellant and the third party. Not initiating necessary steps to recover the amount of the customer even after giving complaint with details vide Ex. A-2. expressing that it is not their responsibility, amounts to deficiency in service on the part of the respondents' bank. Police complaint and consumer complaint are parallel proceedings. Pending investigation of police complaint do not bar the Consumer Fora from proceedings, since, cause of action and ultimate results may be one or different.
13). After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellant/complainant and the respondents/opposite parties, this Commission is of the view that there is deficiency in service on the part of the respondents/opposite parties in not initiating necessary steps, by following due procedure of law and action, to recover the fraudulently transferred amount from account of the appellant/complainant and it is not a bar to dispose of the consumer complaint pending disposal of the police complaint. The District Forum, without going into these aspects, solely depended upon the security aspects in arriving at the conclusion and there are infirmities in the order passed by the District Forum and hence it is liable to be set aside and consequently the appeal is liable to be allowed. Keeping in view the above discussion, we are of the opinion that ends of justice will meet if we direct the respondents/opposite parties 1 to 3 to deposit an amount of Rs.57,400/- in the account of the appellant/complainant together with interest @ 9% pa from 16.10.2010 till the date of such deposit , to pay compensation of Rs. 10,000/- and costs of Rs.5,000/- and the respondents/opposite parties 1 to 3 are at liberty to recover the same from the fraudster by following due procedure of law. Respondent/opposite party no. 4 is not a necessary party to the appeal. This Commission answered Point No. 1, accordingly.
14). Point No. 2 :
In the result, the appeal is allowed setting aside the impugned order and consequently the complaint is allowed in part and the respondents/opposite parties 1 to 3 are directed to deposit an amount of Rs.57,400/- in the account of the appellant/complainant together with interest @ 9% pa from 16.10.2010 till the date of such deposit and to pay an amount of Rs.10,000/- towards compensation and costs of Rs.5,000/- . Time for compliance four weeks.
PRESIDENT MEMBER Dated : 04.09.2017. [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER