DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : RBT/CC/330/2021

Date of Institution : 30.12.2019/24.12.2021

Date of Decision : 22.04.2022

Sispal Kapil son of Shri Madan Lal resident of Village Khuddi Khurd, Tehsil Tapa, District Barnala.    

        …Complainant

Versus

1. HDFC Bank Ltd. # B-XII-263/64, College Road, Barnala through its Branch Manager. 

2. HDFC Bank Ltd. Head Office 1st Floor, C.S. No. 6/242, Senapati, Bapat Marg, Lower Parel, Mumbai-400013 through its Managing Director.

3. The CEO Paytm One97 Communications Limited, B-121, Sector-5, Noida-201301. 

           …Opposite Parties

Complaint Under Section 12 of Consumer Protection Act, 1986.

Present: Sh. Jiwan Kumar Kapil Adv counsel for complainant.

Sh. Anuj Mohan Adv counsel for opposite parties No. 1 & 2.

Sh. Nitin Bansal Adv counsel for opposite party No. 3. 

Quorum.-

1. Sh. Ashish Kumar Grover : President

2. Smt. Urmila Kumari : Member

3. Sh. Navdeep Kumar Garg : Member

(ORDER BY KULJIT SINGH, PRESIDENT):

The present case has been received back in remand from the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 17.12.2021 to decide the same afresh.

2. The complainant namely Sispal Kapil has filed the present complaint under Consumer Protection Act, 1986 (in short the Act) against HDFC Bank Ltd. and others (hereinafter referred as opposite parties).  

3. The facts leading to the present complaint are that the complainant is having his saving account No. 04321050044277 with the opposite party No. 1 and has been availing ATM/Debit Card facility. It is further alleged that at the time of opening the said account, the complainant was assured by the opposite party No. 1 and its employees that all the transactions either manual or electronic are fully secured and there was absolutely no possibility of any risk involved in the money deposited by complainant in the bank of opposite party No. 1. It is alleged that the complainant was on his night duty on 16.9.2019 and this duty was continued till 9 AM on 17.9.2019. It is further alleged that on 17.9.2019 after noon, the opposite party No. 1 debited a total amount of Rs. 99,000/- through 9 debit entries in the complainant's account. This amount was neither withdrawn by complainant nor was remitted to anyone by complainant nor was used by complainant for shopping or any other purpose. It is further alleged that the complainant neither shared password of his bank account login or nor any OTP received on his mobile phone/email with anyone. Complainant also never handed over his mobile set to anyone. The complainant was sleeping at his home when complainant wakeup at about 3 PM he noticed the bank massages and shocked that an amount of Rs. 99,000/- was shown to be withdrawn from his account, whereas no such withdrawal was made by him. The complainant informed the opposite party No. 1 on the same day regarding debit entries, but the opposite party No. 1 did not give reverse credit. The complainant also submitted a Cardholder Dispute Form dated 18.9.2019 with the opposite party No. 1. The opposite party No. 1 informed the complainant that the debit entries were made through Lakshmi Vilas Bank UPI App, whereas the complainant has never used this UPI App and nor has shared any OTP of this App with anyone. The complainant never downloaded the said App on his mobile set. It is further alleged that account statement provided by the opposite party No. 1 revealed that online payment bank of Paytm was used to withdraw money from the bank account of the complainant. When the complainant sent an email to opposite party No. 3 requesting details (such as name, address, mobile number, PAN etc.) of the account holders of opposite party No. 3 who used their platform, the opposite party No. 3 did not provide the same. It is alleged that when the opposite party No. 1 was provided with all details of the incident, opposite party No. 1 did not give credit in account of complainant despite the fact that the complainant had never requested opposite party No. 1 for withdrawal/transfer of the said amount of Rs. 99,000/-. The opposite party No. 1 did not show any document/request from the complainant on the basis of which opposite party No. 1 carried out the debit entries. The opposite party No. 3 remained negligent and allowed its platform to carry out unauthorized transactions. At the same time the opposite party No. 3 failed to provide documents such as PAN/address proof of persons whose account opposite party No. 3 opened with itself. The opposite party No. 3 did not carry out due diligence while opening bank accounts. It is further alleged that the opposite parties did not take any suitable action nor co-ordinated with each other to refund the amount to the complainant. The opposite parties failed to protect their respective server systems with strong firewalls, which caused breach and intrusion in their security. No tangible efforts have been made by the opposite party No. 1 to track down the culprit and to ensure refund of money debited unauthorized in the complainant's account. The complainant made repeated requests with the opposite party No. 1 regarding unauthorized withdrawal but he has not provided with any succinct information with regard to the withdrawals. The opposite parties No. 1 and 2 are the custodians of complainant's money and is liable to refund his money alongwith all incidental damages and losses to the complainant. Thus, there is deficiency in service and unfair trade practice on the part of opposite parties. Hence, the present complaint is filed seeking the following reliefs.- 

i) To pay Rs. 99,000/- on account of original amount of claim alongwith interest at the rate of 12% per annum. 

ii) To pay Rs. 2,00,000/- as compensation and Rs. 20,000/- as litigation expenses.   

4. Upon notice of this complaint the opposite parties No. 1 and 2 appeared and filed written version taking legal objections on the grounds  that he got no locus-standi or cause of action to file the present complaint. The complaint is premature and not maintainable as the complainant himself admitted the fact that an amount of Rs. 99,000/- cheated by someone and he moved an application regarding cheating before the SSP, Barnala and the same was duly received by the office of SSP, Barnala on 18.9.2019 and the SSP, Barnala marked the same to Incharge EO Wing, Barnala to verify and investigate the matter and the application is still pending with the office of SSP, Barnala. Further, this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the present complaint as it is not a consumer dispute and does not fall within the ambit of provisions of the Consumer Protection Act. 

5. On merits, it is admitted that the complainant have saving account with the opposite party No. 1 and opposite party No. 1 provide ATM/Debit Card facility to the complainant. Further, it is submitted that the opposite party No. 1 is the branch office of opposite party No. 2 and opposite party No. 1 provide facilities to the customers as per their requirements. It is denied that the employees of opposite party No. 1 gave any assurance to the complainant regarding his account or electronic transactions. It is further submitted that the password of the account of the complainant only known to him and no one can use or withdraw the amounts from the account of complainant without sharing the password by the complainant to anyone and entries made in the account of the complainant without password are not possible. It is denied that the complainant was on his duty and was sleeping at his home. It is further submitted that the complainant approached the opposite party No. 1 on 18.9.2019 and the employee of opposite party No. 1 duly attended the complainant and informed that the amounts deducted from his account through Luxmi Vilas Bank, UPI App. However, the complainant submitted his complaint with the Card Holder Disputes Forum on 18.9.2019. It is admitted that the employees of the opposite party No. 1 duly informed the complainant about the entries which were made through Luxmi Vilas Bank UPI App. It is submitted that without sharing the password or one OTP, the app. cannot be used. The complainant himself a negligent person and he disclosed his password and OTP with anyone which used the same for alleged withdrawal and the employees of the opposite parties No. 1 and 2 are not at fault at all. It is admitted that the opposite party No. 1 provided all the details of the account to the complainant. The entries/amounts transferred or withdraw by the e-banking. No document is in possession of the answering opposite parties. However, the opposite party No. 1 had already provided the account statement to the complainant. The system of the opposite parties No. 1 and 2 duly protected. It is further submitted that the employees of the opposite party No. 1 duly cooperate with the complainant and provided everything to the extent on the request of the complainant and the complainant lodged the written application with the SSP, Barnala to register a case against the culprits and the said application was duly marked to EO Wing, Barnala to investigate the matter which is still pending, so the complaint is premature and liable to be dismissed. There is no deficiency in service on the part of the answering opposite parties. The other allegations of the complainant are denied and prayed for the dismissal of complaint.  

6. The opposite party No. 3 also filed written version taking preliminary objections on the grounds that the issues raised are in relation to Paytm Bank/Wallet account maintained by Paytm Payments Bank Limited and reply has been filed on behalf of Paytm Payments Bank Limited. The opposite party No. 3 having been granted license by Reserve Bank of India to carry on payments bank business under the Banking Regulation Act 1949. The opposite party No. 3 engaged in the business of providing various payments bank services like acceptance of demand deposits, payments and remittance services, wallet issuance and UPI services and mobile/internet bank etc to its end customers. The present compliant has been filed by the complainant on the pretext that complainant is a holder of HDFC Bank Account No. 04321050044277. The complainant alleged that on 17.9.2019 amount of Rs. 99,000/- has been fraudulently debited from his said bank maintained with the opposite parties No. 1 and 2 through nine different entries. The grievance of the complainant categorically lies with concerned bank HDFC i.e. opposite parties No. 1 & 2 under which the account of the complainant has been maintained. As alleged fraudulent transaction took place due to reasons attributable to concerned bank which operates the account of the complainant. Admittedly, the complainant was himself aware of the fact that the remedy in respect of the alleged transactions lies solely with opposite parties No. 1 & 2 as the complainant firstly approached opposite parties No. 1 and 2 for redressal of his grievance and only upon failure to get relief from opposite parties No. 1 and 2 the complainant opted to file the present complaint to seek wrongful gain from opposite party No. 3 with a malafide intention by claiming unlawful and unjustified reliefs against opposite party No. 3. The complainant neither availed any sort of service from the opposite party No. 3 in respect of the issues raised in the present complaint nor the complainant comes under the ambit of the definition of a "consumer" in relation to the opposite party No. 3. The complainant has not placed on record any evidence to prove as to how he is the customer or when and how he himself availed any service from the opposite party No. 3. It is further submitted that on receipt of present complaint, opposite party No. 3 made an internal scrutiny of its records and found out that the opposite party No. 3 were in receipt of an email from Cyber Investigation & Technical Support Units, Barnala (Punjab Police) dated 18.9.2019 regarding said transactions. Further, the opposite party No. 3 in compliance of direction of police promptly and without any blemish shared transaction details pertaining to the said transaction to them. It is further submitted that on 21.9.2019 the complainant intimating occurrence of said transaction and the opposite party No. 3 immediately shared transaction statement of said transaction with the opposite party No. 3 on 24.9.2019.The opposite party No. 3 also informed the complainant that the amount utilized in said transaction could not be refunded as the same has been consumed by Beneficiary Bank accounts of opposite party No. 3. It is further submitted that the said transaction reported by the complainant were UPI transactions whereby money had been transferred to several Paytm Bank account numbers from UPI linked bank account of the complainant maintained with opposite party No. 1 & 2. The UPI ID/VPA handle used to send money to opposite party No. 3 bank account in said transaction is Dipak085gmail@lvb. The customer who wishes to initiate any transaction through UPI can put in request for fund transfers from their UPI linked bank Accounts using their unique VPA handle and entertain UPI PIN which is generated and fixed by customer himself. The customer who wishes to initiate transaction through UPI mode issues Payment Order which means an unconditional instruction issued by the Customer using the UPI facility, to effect a fund transfer for a certain sum of money to the designated account of a designated beneficiary by debiting Account of the customer. The transaction done through UPI facilities complies with all the security compliances, checks mandated by the concerned bank/National Payment Corporation of India (NPCI). The transactions done through UPI can only be performed by person who is aware of UPI credentials as well as the UPI PIN which shall purportedly be personlized and fixed by the complainant himself. The opposite party No. 3 is not having any role in performance of transactions done through UPI. Further, the complainant has not come to the Forum with clean hands and failed to establish any specific cause of action against opposite party No. 3. 

7. On merits, the opposite party No. 3 submitted that in reply to the contents of the complaint preliminary objections may be read as part and parcel of the reply on merits and same are not repeated for the sake of brevity. However, lastly the opposite party No. 3 prayed for the dismissal of complaint qua the opposite party No. 3. 

8. In support of his case the complainant tendered into evidence his own affidavit Ex.C-1, copy of statement of account Ex.C-2, copy of letter Ex.C-3, copy of Cardholder Dispute Form Ex.C-4, copies of Emails Ex.C-5 & Ex.C-6. Further, the complainant has made statement dated 3.6.2020 that he does not want to submit any rejoinder and closed the evidence. The learned counsel for the complainant also made statement on 15.2.2022 that he does not want to tender any further evidence on behalf of complainant and closed the same.    

9. To rebut the case of complainant, the opposite parties No.1 and 2 tendered into evidence affidavit of Tajinder Singh Ex.O.P-1.2/1, copy of statement of account Ex.O.P-1.2/2, copy of guidelines of RBI regarding cyber frauds Ex.OP-1.2/3 and closed the evidence on behalf of opposite parties No. 1 and 2. The opposite party No. 3 also tendered into evidence affidavit  of Abhinav Dwivedi Ex.O.P-3/1, copy of Authority Letter Ex.O.P-3/2, copies of Emails Ex.O.P-3/3 (3 pages) & Ex.O.P-3/4 (9 pages) and closed the evidence. The learned counsel for the opposite party No. 3 also made statement on 14.3.2022 that he does not want to tender any further evidence on behalf of opposite party No. 3 and closed the same. 

10. We have heard the learned counsel for the parties and have gone through the record on file. Written arguments also filed by the complainant. 

11. The complainant alleged in the present complaint that on 17.9.2019 the opposite party No. 1 debited total amount of Rs. 99,000/- through nine debit entries in the account of the complainant. The complainant neither withdraw the said amount nor remitted the same to anyone. The complainant further alleged that neither he shared password of the bank account login nor any OTP received on his mobile number or email. The complainant also alleged that the complainant never handed over his mobile set to anyone. To prove his case the complainant produced the statement of account issued by the opposite parties No. 1 and 2 Ex.C-2 vide which it established that Rs. 99,000/- was debited on 17.9.2019 from the account of the complainant. 

12. The opposite parties No. 1 and 2 filed written version and mentioned that the amounts deducted from the account of the complainant through Luxmi Vilas Bank UPT App. The opposite parties No. 1 and 2 further alleged that the complainant submitted his complaint with the Card Holder Disputes Forum on 18.9.2019. The opposite parties No. 1 and 2 alleged that the complainant himself is a negligent person and shared password with anyone and that person after using the password withdraw the amount from the account of the complainant. The opposite parties No. 1 and 2 further alleged that the complainant lodged a written application with the SSP, Barnala to register a case against the culprits and said application was duly marked to EO Wing, Barnala to investigate the matter which is still pending, so the complaint of the complainant is premature and liable to be dismissed. The complainant has produced the copy of application Ex.C-3 which was given by the complainant to the SSP, Barnala on 18.9.2019. 

13. On the other hand the opposite party No. 3 appeared and submitted his written statement and denied his liability. Learned counsel for the opposite party No. 3 argued that the opposite party No. 3 is not having any role in performance of transactions done through the UPI. The learned counsel for the opposite party No. 3 further argued that it is crystal clear that the issue in respect of operation, performance, execution of said transaction lies solely with complainant himself and opposite parties No. 1 and 2. 

14. On perusal of the record it established that Rs. 99,000/- was debited from the account of the complainant on 17.9.2019 and the complainant immediately approached the opposite parties No. 1 and 2  and also submitted the complaint with the Card Holder Disputes Forum on 18.9.2019 and also filed an application before SSP, Barnala for registration of case but till today the opposite parties have not solved the complaint of the complainant.

15. The learned counsel for the complainant argued that the bank is liable for the unauthorized/fraudulent transactions and the complainant's counsel also produced the judgment of Hon'ble National Consumer Disputes Redressal Commission titled as Chairman, Punjab National Bank Versus Leader Valves Limited decided on 13.3.2020 in which Hon'ble National Consumer Disputes Redressal Commission held that the complainant lodged the complaint with the police. The police did not file any report under Section 173 of IPC (Furnishing false information) etc. The bonafide of the complainant does not come under the question. The Hon'ble National Consumer Disputes Redressal Commission further held that it was not for the complainant to show whether the bank computerized system was affected by malware or any other virus, it was bank's job to keep its system clean and functional. It is further held by the Hon'ble National Consumer Disputes Redressal Commission that it was not for the complainant to show the hacking had been undertaken and it was bank's job to keep its system safe and secure. It is further held by the Hon'ble National Consumer Disputes Redressal Commission that qua the complainant the case is simple and straight. The bank did not keep his accounts safe and secure, did not remedy the erroneous transfers on being diligently and dutifully so intimated by the complainant. 

16. The learned counsel for the complainant also produced the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled HDFC Bank Limited Versus Jesna Jose decided on 21.12.2020 in which the Hon'ble National Consumer Disputes Redressal Commission held that the first fundamental question that arises is whether bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the bank or by an act of malfeasance by any other person (except the complainant/account holder). The answer, straightway is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/account holder), is its responsibility and not of the consumer. 

17. On the other hand, the learned counsel for the opposite parties No. 1 and 2 argued that the opposite parties are not liable to pay any relief to the complainant as the complainant himself is a negligent person.

18. From the above discussion and law laid down by the Hon'ble National Consumer Disputes Redressal Commission, it is clear that there is unfair trade practice and deficiency in service on the part of opposite parties No. 1 and 2. Accordingly, present complaint is partly allowed against the opposite parties No. 1 and 2. The opposite parties No. 1 and 2 are directed to pay Rs. 99,000/- to the complainant which was debited from the account of the complainant alongwith interest at the rate of 9% per annum from the date of transaction i.e. 17.9.2019 till actual realization. The opposite parties No. 1 and 2 are further directed to pay Rs. 10,000/- to the complainant as compensation for mental tension and harassment and Rs. 5,500/- as litigation expenses. Both the opposite parties No. 1 and 2 jointly and severally liable to comply with this order. Compliance of this order be made within the period of 45 days from the date of receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

        22nd Day of April 2022

 

 

            (Ashish Kumar Grover)

            President

              

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member