ORDER

29.05.2023

SH. SANJAY KUMAR, PRESIDENT

1. A complaint under Section 35 of Consumer Protect Act 2019 (hereinafter referred to as C.P.Act) filed by Sh. Sandeep Rana (hereinafter referred to as complainant). The complainant is seeking reimbursement of Rs.98,880/- on immediate effect and also payment of Rs.1,00,000/- for damagers/suffering of complainant..
2. In brief facts of the present case are that the complainant is holding a credit card bearing no. 6529221000387994 and is regularly operating the credit card. It is stated that complainant received a telephonic call from mobile no. 8859002703 and the said caller told the complainant that he is official of Axis Bank and credit card of complainant needs some upgradation and asked to download an app by the name of ANYDESK and as per instructions complainant downloaded the app. It is further stated that while downloading the said app some passwords were taken by said official and to the utter surprise of complainant after some time Rs.98,880/- were withdrawn from the credit card of complainant and when complainant tried to contact the said mobile no. same was found switched off.
3. It is stated that complainant tried to contact concerned bank officials but no response was given thereafter complainant lodged FIR bearing no. 0047 dated 08.09.2022 with Cyber Police Station, Delhi under Section 420 IPC and same is still pending for investigation. It is further stated that OP on one pretext or the other refused to hear the complaint of complainant and act of respondent are unlawful and illegal. Hence a legal notice dated 26.04.2023 sent to OP and same was not complied, there is clear cut deficiency in service of respondent. Hence present complaint filed.
4. We have heard arguments on admission by Sh. A.K Azad counsel for complainant and have perused the record.
5. As per facts stated hereinabove in the complaint, the complainant himself downloaded app which resulted in withdrawal of Rs.98,880/-. The complainant has not mentioned any date when he had received the mobile call for upgrading and downloading the said app. The fact clearly establishes that complainant is victim of cyber fraud and no bank official at any point of time contacted the respondent bank to complainant. The photocopy of message received by complainant for use of credit card. The complainant has already lodged FIR and investigation was pending. The facts mentioned in the complaint establishes that officials of bank never provided any service for upgrading any app or any transaction as alleged. There is no prima facai case with regard to the deficiency of service on the part of OP. The complainant is a victim of cyber fraud. In these circumstances Hon’ble Supreme Court settled the law and in the latest judgment The Chairman & Managing Director, City Union Bank Ltd. & Anr. VS R.Chandramohan, Civil Appeal No. 7289 of 2009 decided on 27.03.2023 held as under:

The counsel for the  appellants has rightly relied upon the decision of this Court in case of Ravneet Singh Bagga (supra) as under:

“5. Section 2(i)(o) defines “service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or  lodging or both, entertainment, amusement or the purveying of news  or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines “deficiency” to mean any fault, imperfection, shortcoming or  inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract 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 from the tortious 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 to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their action  or the final decision was in good faith,  it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”.

6. Now applying the principle of law discussed hereinabove in the present case as per allegations in the complaint this commission has no powers to decide and adjudicate cyber fraud/cheating as the law is well settled that the proceeding before the commission being summary in nature cannot decide the criminal liabilities and offences such like cyber crime or cheating.
7. On the basis of above observation and discussion, the present complaint is accordingly dismissed.

Copy of the order be sent to the parties free of cost. The orders be uploaded on www.confonet.nic.in.

File be consigned to Record Room.

Announced in open Forum on  29.05.2023

SANJAY KUMAR                                                                            NIPUR CHANDNA

PRESIDENT                                                                                           MEMBER