This consumer complaint U/S 17 of CP. Act, 1986 was registered before the Kolkata bench of SCDRC W.B. by one Rajesh Bhutra. It was re-assigned here.
The case in short is that the complainant above named was/is a subscriber/user of one BSNL SIM Card in his postpaid mobile bearing connection Number 94340 61410 as obtained by him in his name from the office of Bharat Sanchar Nigam Limited, Siliguri against payment of service charges since long back periods.
That on 24.09.2016 at around 05:42 pm, the complainant surprisingly found that there is no Signal/Network/Tower Connection in his said SIM Card and that initially he thought that there might be some network/server problem from the side of the Opposite Party No. 01 and that he did not bother for the said network problems in as much as the BSNL users/holders used to face such network problem from time and again and he thought that it may be some technical defects.
That subsequently, when the network problem of complainant's said mobile phone bearing connection No. 94340 61410 was not solved till the next date ie, on 25.09.2016, being Sunday, the complainant above named started to inquire about the same with the office of the BSNL, Siliguri on 26.09.2016 and came to know from a of the staff of the mobile section of BSNL, Siliguri that a new SIM Card has been issued by the office of BSNL, Siliguri to one Sri Santosh Mishra in respect of the said Mobile Connection bearing No. 94340 61410 and that the said Santosh Mishra has produced the Xerox copy of the complainant's passport and visa issued by Bulgaria [another country] and also the Xerox copy of his own PAN Card.
That having no other option, the complainant above named then and there requested the BSNL, Siliguri to block the said new SIM Card number, but to no good. The authorities of BSNL, Siliguri asked the complainant to lodge one complaint to the police. And accordingly. the complainant above named lodged the complaint, then and there to local police, in writing on 26.09.2016 that is to Siliguri Police Station, Siliguri [Cyber Crime Cell] narrating the facts and requested to take cognizance of the same and take strict action against the culprits and also to instruct the BSNL authorities to restore his earlier SIM Card, but the said Cyber Crime Cell arranged to send the said complaint to Pradhan Nagar Police Station and accordingly the said complaint was received by Pradhan Nagar Police Station, on 26.09.2016, but to no good.
That the complainant, above named subsequently visited his bank, that is Dena Bank, Siliguri, the op No. 07 herein on 27.09.2016 in as much as the said SIM Card bearing mobile connection number 94340 61410 of the complainant was/is also tagged/registered with respect of his Current Bank Account bearing No. 114713023751, as maintained by him with the said Dena Bank, Siliguri in the name of his proprietary business/firm, running for earning his livelihood, in the name and styled as Crystal Technologies having his business place at 2nd Floor, International Market, Sevoke Road, PO. & PS, Siliguri, Dist: Darjeeling [West Bengal] and obtained the statement of his said bank account and came to know that some unknown persons had/have arranged to get transfer of a sum of Rs.16,00,000/- [Rupees sixteen lakhs] from and out of the fund deposited in his bank account by using the RTGS/NEFT facilities of the op bank at No. 07. It is stated that the said bank statement shows that two unknown persons, that is one Md. Salman and another Ashok Mishra had/have arranged to get transfer of a sum of Rs.10,00,000/= in total [in four transactions of Rs.2,50,000/= each] through RTGS on 26.09.2016 in their respective bank accounts and that the said persons namely Md. Salman and Ashok Mishra, again arranged to get transfer of a further sum of Rs.6,00,000/=, in their said bank accounts on 27.09.2016 illegally and fraudulently, by using NEFT facilities of the op bank at No. 07. It is stated that the said Md. Salman arranged to get transfer of a sum of Rs. 8,00,000/= in his bank account on 26.09.2016 and 27.09.2016 and similarly the said Ashok Mishra had/has also arranged to get transfer of a sum of Rs.8,00,000/- in his bank account on the said two dates.
That accordingly, the complainant above named thereafter made an FIR with the Siliguri Police Station, (Cyber Crime Cell), Siliguri on 27.09.2016 narrating the incident and that the said Cyber Crime Cell of Siliguri taken the cognizance of the matter and registered the FIR under section 66/ 66C/ 66D of Information Technology Act read with Section 379/ 420 of Indian Penal Code Vide Cyber Crime Police Station Case No. 26/2016 of dated: 28.09.2016 and commenced the investigation.
That it is stated that the complainant above named used to carry his said business and also the business transactions through Net Banking Systems by using the said Mobile/SIM Card bearing connection No. 94340 61410 and that accordingly he also used to receive One Time Password (OTP) in his said Mobile No. which sent by the OP Bank at No. 07 in course of his said net banking transactions from time to time and accordingly, the complainant above named also arranged to write/address/submit one letter dated: 27.09.2016 to the op bank at No. 07, narrating the incident and aforesaid fraudulent transfer and requested to get into the depth of the matter to help the complainant to recover the said amount and also to take strict action against the culprits. It is stated that the op bank at No. 07 endorsed to have received the said letter from the complainant by putting its seal and signature with a date at 28.09.2016.
That subsequently on 22.10.2016, the complainant above named arranged to write/address/submit one letter date: 22.10.2016 to the BSNL authorities, Siliguri narrating the incidents in details and categorically stated in the said letter that the complainant has requested the departmental staff of the op No. 01 to stop the function on the said new SIM Card as his said SIM Card was tagged/registered with his bank and it may create a great difficulty to the complainant, but she refused to stop the function of the said SIM Card.
Due to such negligence and deficiency in services, a sum of Rs.16,00 Lakhs had/have fraudulently been withdrawn by the miscreants from his said bank account by using the said new SIM Card in as much as OTP [one time pass word] used to come in the mobile through said mobile connection. And accordingly, the complainant requested the op No. 01/BSNL authorities, Siliguri to re-imburse the said amount of Rs.16.00 Lakhs immediately within 15 days from the date of the receipt of the said notice, failing which he would knock the door of the appropriate court of law. It is stated that inspite of the receipt of the said letter, the op No. 01/BSNL authorities did nothing into the matter and even neglected and avoided to reply the same for obvious reasons."
That subsequently, the complainant above named addressed one letter to the Commissioner and Public Information Officer, Office of Siliguri Metropolitan Police Commissionerate on 15.11.2016 and requested to provide the certified copies of the documents, which the police has collected in respect of the said Cyber Crime Case No. 26/16 and in reply thereof, the complainant above named had/has received the certified photo copy of passport bearing No. H-9374035 of Sri Rajesh Bhutra, certified Xerox copy of PAN Card bearing No. CUAPM2841R of Sri Santosh Mishra, [which was submitted before handing over SIM by BSNL Office, Siliguri], certified xerox copy of GD regarding sim lost application of dated: 24.09.2016 and certified xerox copy of BSNL application filled up form, enclosing therewith the letter dated: 22.11.2016 and 18.11.2016 of/from the office of Deputy Commissioner of Police & SPIO, Siliguri Metropolitan Police, Siliguri.
That on perusal of the said four documents as provided by the office of the Deputy Commissioner of Police & SPIO, the complainant above named come to know that some miscreants have submitted the application to the office of BSNL, Siliguri for obtaining another SIM Card, but the name of the customer has been mentioned as Rajesh Sitaram Bhutra, instead of his actual name as Rajesh Bhutra and that the signature of the alleged Rajesh Sitaram Bhutra was also not matching with the signature allegedly put by the miscreants in the GDE lodged to Siliguri Police Station on 24.09.2016 in the name of Rajesh Bhutra for alleged loss of the said SIM Card. It is stated that the miscreants might have collected the alleged Xerox copy of Passport and Visa of the complainant by hacking the complainant's mail. From the documents as seized in connection with the said criminal case and provided to the complainant, it is clear to the complainant that BSNL, Siliguri had/has allegedly issued the said new SIM Card to one Santosh Mishra allegedly on the basis of the xerox copy of his IT PAN Card in as much as the police authorities had/have provided the xerox certified copy of the same to the complainant and that BSNL, Siliguri had/has issued the said new SIM Card without obtaining any authority letter either of the alleged applicant Rajesh Sitaram Bhutra or Rajesh Bhutra, in as much as the police authorities had/have not provided the copy of any authority letter to the complainant in any way. Moreover, there was/is no endorsement either on the Xerox copy of passport or in visa that the authorities of BSNL, Siliguri had/have checked and verified the said xerox copy of pass port and visa of the said Sri Rajesh Sitaram Bhutra or Rajesh Bhutra physically and personally from his original pass port and original copy of visa.
The complainant above named came to know that the op bank at Nos. 04 to 06 above named had/have received and transferred/disbursed the considerable amount in the name of Ashok Mishra and Mohd Salman even without maintaining their respective KYC or the KYC of the said Ashok Mishra and Mohd Salman and/or the KYC of all such persons in whose favour the said bank(s) had/have paid the cash amount, in violation of the rules and regulations and the rules and regulations framed by the Reserve Bank of India. As a result of which the miscreants could be able to get transfer of the said sum of Rs.16.00 Lakhs in their accounts and could also be succeeded to get transtered the cash amount from and out of their said bank accounts only due to negligence and deficiency in services of the op bank at Nos. 04 to 06 above named, Had the said banks not allowed the said culprits to withdraw the said amount from the said bank accounts, without getting their respective KYC, the said culprits could not have succeeded in getting the said amount.
So, by registering this complaint, the complainant prayed for payment of loss amount i.e., Rs. 16,00,000/- along with interest, compensation for deficiency of service, harassment, mental pain etc. from all the ops.
Initially the case was registered against BSNL and concerned banks. Subsequently two more persons who has allegedly got transfer of Rs. 16,00,000/- by using the Sim card of the complainant from his account were impleaded as OP No. 9 and 10.
But the notice upon OP No. 9 & 10 returned unserved with postal endorsement ‘’ address not found”.
Subtitled service was there, but they did not contest the case.
Save and except the BSNL (Op No 1 to 3), the other OPs did not contest the case.
OP No. 1 to 3 by furnishing written version, contested that the BSNL had nothing wrong by way of delivering the duplicate SIM bearing no. 9434061410 on 24.09.2016 as because the documents i.e. the application, xerox copy of passport along with visa of the complainant, G. D. Entry at Siliguri Police Station and xerox copy of PAN card of one Santosh Mishra submitted by said Santosh Mishra claiming himself as the representative of the complainant and after verifying the said documents through available system as far as practicable, the concerned officer handover the SIM but subsequently on 26.09.2016 as and when the complainant informed about the malfunctioning of his mobile phone, the concerned officer had done his part by way of advising him as required under the circumstances.
That so far as the present system of Net Banking is concerned through mobile phones, each phone has got its own system wherein the identification of the account holders of the respective bank is based upon the phone numbers which has already been registered with the Bank of the respective account holders with the privilege to transact and/or operate the Bank account from their respective mobile phones but it is next to impossible to operate the account without inserting the personal password as well as the personal Customer ID of the said account holder and secrecy of the same is always maintained by the mobile phone holders regarding which none has got any authority to know anything about the same.
That the documents received from the concerned person i.e., the complainant herein, it is crystal clear that the complainant has not done his duty properly to protect his own interest and the complainant herein has also got contributory negligence on his part perhaps with a malafide intention only to harass these answering opposite parties and thus the complainant is not legally entitled to get any relief on the basis of equity and good conscience from any Court of law. The complainant knowing fully well the consequence about the matter, intentionally did not took the proper steps as required under law which fact itself shows that the complainant was in collusion with the concerned person namely Santosh Mishra and thus the fact shows that the complainant suppressed the actual state of affairs to obtain a wrongful gain fraudulently and as per Indian Contract Act, 1872, suppression of facts itself is a fraud.
The positive case of OP No. 1 & 3 is that on 24.01.2003 a Postpaid mobile connection bearing no. 9434061410 was issued in the name of the complainant herein and on 24.09.2016 one Santosh Mishra came to the office of these answering opposite parties and submitted the documents namely an application, xerox copy of the Passport and Visa (having verified online) of the complainant, valid FIR lodged at Siliguri Police Station and xerox copy of PAN Card of said Santosh Mishra for a duplicate SIM card with regards to the aforesaid phone number and upon verifying over the above mentioned documents through online system as far as practicable, the concerned officer issued the duplicate SIM and handed over the same. Subsequently on 26.09.2016 the complainant went to the office of SDE CSR-2 to enquire about the malfunctioning of the aforesaid mobile no. but on enquiry these answering opposite parties informed the complainant that a new SIM had already been issued on 24.09.2016 and immediately advised the complainant to call helpline no. i.e. 1503 to block the SIM in no time and requested to produce valid documents for the purpose to issue a duplicate SIM card but the complainant did not took any steps for the reason best known to him and subsequently the complainant came to the office on 27.09.2016 with the documents namely xerox copy of the Passport and Visa (having verified online) of the complainant, valid FIR lodged at Siliguri Police Station perhaps, in the meantime the damage had already been done.
As per complaint, the bank transaction was made on 26.09.2016 and 27.09.2016 and the complainant had enough time to block his SIM, if he wanted to do so but no steps was taken in this regard and it is pertinent to mention here that BSNL provides mobile connectivity service and thus it is not in any way related to any transaction made through a Bank or Net Banking and thus Net Banking is not maintained by BSNL or any other mobile connectivity service provider as it is totally maintained by the concerned Bank. So, the question of refunding the money purportedly lost by means of online transfer did or does not arise at all. Be it also mention here that an account of a bank is a very safe place with high end security and Net Banking is part of it and technically speaking no third person can enter into an account without knowing the personal Login Password and the personal Customer/Consumer ID of such person as because it is the key and without these two passwords it is next to impossible for anyone to transact and/or operate any other Bank's account unless and until there is any personal interference of the account holder himself and thus it can be safely presumed that the complainant has got wrongful and illegal connivance with the concerned person namely Santosh Mishra.
The complainant in support of his case tendered evidence of complainant by affidavit and furnished all the relied upon documents. On the part of contesting OP’s, evidence was added.
Ld. Advocate Mr. S. Mrituka represent the complainant through out the hearing and furnished WNA.
Beside W.V, OP No. 1 to 3(BSNL) no WNA was furnished.
Ld. Advocate Mr. Ratan Banik represented the OP No. 1 to 3.
The OP No. 4 to 6 are the banks including RBI. But the said banks did not contest the case by WV.
The newly added OP No. 9 inspite of substituted service did not contest.
So, the case against OP NO. 4 to 10 shall run exparte.
On the basis of issues contentions touching the merit of this case the following points are to be determined for adjudication of the dispute.
Points:-
- Is the complainant a Consumer U/S 2(1)(d) OF CP Act, 1986?
- Has the complainant any right of action to institute the consumer case.
- Had there was deficiency of service as the part of all Ops particularly OP N. 1 to 3?
- Is the complainant certified to set the relieves as prayed for?
Decision with reasons: -
Point No. 1 & 2: - As per contents of the Consumer Complainant, the complainant had to endure a Moratory and mental sufferance due to misdeed and negligence on the part of concerned employees of BSNL and the bank officials for their sheer negligence, Rs. 16,00,000/- was siffoned from the current A/C of the complainant lying at Siliguri branch of Dena Bank.
The complainant has instituted the case within time limit and as a bonafide customer of BSNL and Bank, he felt deficiency of service and as such as per provision of sec 2(i)(d) of CP Act, 1986 he has the legal right to register the instant consumer complaint.
So, these two points are adjudicated in favour of the complainant.
Point No. 3 & 4: - Admitted position is that the complainant was enjoying the post-paid mobile connection of BSNL since 2003 bearing sim card no. 9434061410 which was tagged with his current A/C maintained at Dena Bank for availing the internet banking system and on the basis of GDE of Siliguri P.S bearing no. 242dated 24.09.2016, a swap sim was issued to one Santosh Mishra claiming himself the authorized representative of the complainant Rajesh bhutra.
Thereafter, this consumer dispute was cropped up.
Ld. Advocate of the complainant during the hearing mentioned that on 24/09/2016, the authorities of BSNL, Siliguri issued one New SIM Card in respect of the said Mobile No. 9434061410 of the complainant to some unknown person/miscreant negligently and deficiently & without proper verification of the xerox copies documents with the original documents of the complainant. And that the said Mobile Number of the complainant was registered with the aforesaid bank account of the complainant as maintained by him with the OP Bank at No. 7 and due to issuance of the said new SIM Card, blocking the earlier existing SIM Card of the complainant, the complainant could not be able to get the messages from his bank in any way and that the said unknown persons/miscreants succeeded to get transfer a sum of Rs. 16,00,000/- from the bank account of the complainant to their own bank accounts through RTGS & NEFT and succeeded in withdrawing the said amount form their respective bank account.
In the instant case. we found that the BSNL authorities have issued the New SIM Card on the basis of following documents (a) Alleged complaint lodged to Siliguri PS by one Rajesh Bhutra on 24.09.2016 (b) Application Form allegedly submitted by Rajesh Sitaram Bhutra, one another person to BSNL; (c) Xerox copy of Passport in the name of Rajesh Bhutra and (d) xerox copy of Visa of Rajesh Bhutra and (e) xerox copy of IT PAN Card of Santosh Mishra, So, the first negligence and deficiencies in services on the part of BSNL was/is that the application for new SIM Card was in the name of Rajesh Sitarama Bhutra, but not in the name of Rajesh Bhutra, and the BSNL authorities negligently and deficiently failed to verify the documents properly.
From one alleged letter dated: 31.10.2016 written by BSNL allegedly to Rajesh Bhutra that a request was received from Rajesh Kumar Bhutra (not Rajesh Bhutra) on 24.09.2016 and that on the basis of alleged valid GDE of Siliguri PS, a valid passport bearing No. H9370435 (on line verified), valid PAN Card of Sri Santosh Mishra (online verified) and on p roper verification of signature and all the submitted documents, the swap sim was issued on 24.09.2016 as per Circle Office Guideline No. GM (HR & ADMIN) WBTC/MISC. dt 22.9.2014 and the complainant was verified by the executives of CSR-2 on 26.09.2016 at about 11.30 am.
From the above letter dated 31.10.2016, it is clear that the BSNL has not verified the alleged documents with the original and they simply verified the said documents online. Your Honor is aware that the xerox copy of the said documents, if checked by any one online, must get the same in the records of the concerned department. Verification of xerox copies of documents ought to have been made with physical copy thereof. BSNL authorities even did not produce any documents to show that they verified the documents through online mode. And as such the act and conduct of the BSNL authorities was/is also negligent and deficient.
Circle Office Guideline No. GM (HR & ADMIN) WBTC/MISC. dt 22.9.2014 vide letter dated: 25.09.2014 of the BSNL which was lying pasted in all Mobile Sections of Siliguri BSNL and which categorically speaks that one complaint has been received that Duplicate/SWAP SIM was issued to a person without confirming his identity address and signature which subsequently led to a financial fraud alleged to have been committed by that person using internet banking and that in this connection, you are requested to instruct all the in-chare of CSC under your control that duplicate/SWAP SIM is to be issued only after verifying proof of identity & address and signature with a copy of GD/FIR, which shows that the SIM was lost/stolen. Your Honor, inspite of having such guideline pasted over each and every Mobile Section of BSNL, the BSNL authorizes not verified the said documents and the signatures of the complainant with the original documents in any way. Simply they alleged to have verified through online and that they even did not produce any proof thereof for such online verification. Moreover, BSNL authorities even did not ask the said Santosh Mishra to produce his own Aadhar Card or Voter Card in any way negligently and deficiently.
The complainant then requested the BSNL authorities to block the said new SIM Card, as the said SIM Card/Mobile Number was related to his said bank account, but to no good. The authorities asked the complainant to lodge one complaint to the police and accordingly the complainant lodged the complaint to the police on 26.09.2016 and in the meantime, the miscreants had/have withdrawn a sum of Rs.16.00 Lakhs from the bank account of the complainant by diverting the fund through RTGS/NEFT. So, there was/is the negligence and deficiency on the part of the BSNL authorities in not blocking the card, then and there on lodging his complaint."
After hearing both sides, it is conclusively fixed that the BSNL authorities has issued the swap sim no. 9434061410 on 24.09.2016 on the basis of original police G.D.E at 24.09.2016 and xerox copy of the self-acclaimed representative of complainant Santosh Mishra. The said documents were verified on line and there after the swap sim was issued.
Now the question is whether only obtaining the mobile sim of the complainant the miseareants could transfer the money of Rs. 16,00,000/- from the bank A/C of the complainant beyond his knowledge
The case of the OP No. 1 to 3 is that on 26/09/2016 the complainant came to the customer care office of the BSNL. Siliguri for enquiring about malfunctioning of his mobile number 9434061410. On quarry, the dealing official found that on 24/09/2016 swap sim was handed over to Sri. Santosh Mishra claiming to be the representative of the complainant on production of valid FIR lodged at Siliguri Police Station, photocopy of passport of Sri. Rajesh Bothra (verified online), photocopy of PAN card of Sri. Santosh Mishra (verified online) and filled an application form signed by Rajesh Bothra. At this the complainant requested the official to replace the sim card without any valid FIR/ document and the complainant was accordingly requested to lodge an FIR at police station and block the sim by contacting the BSNL help line 1503 to block the sim immediately. But surprisingly enough, the complainant did not follow the advice given by the BSNL on 26/09/2016.
The complainant got enough time to block the sim once swapped in on 24/09/2016 taken by Sri. Santosh Mishra by submitting his own ID card i.e., PAN card which bears his name and father's name, age etc. When the complainant knew the tagging of his mobile number with his bank account and its implication thereof, the complainant could know the name and address of Santosh Mishra, his father's name and address who has taken the swapped sim card from the BSNL on his behalf on 24/09/2016. But the complainant intentionally did not include his name as necessary and most essential party in the instant case.
That there is reason to believe that a deep-rooted conspiracy and connivance in between the complainant and Santosh Mishra in making a ploy for getting swap sim with an intent to defraud the O.P which cannot be ignored out at all as is evident by not disclosing the name of Santosh Mishra in the FIR lodged by the complainant nor including the name of Santosh Mishra in the instant case as a necessary party which reflects the evasiveness of the complainant. It is revealed that Rs. 8, 00. 000/- was fraudulently transferred and deposited by way of RTGS / NEFT in the bank account of Ashok Mishra who is the father of Santosh Mishra at Union Bank of India, Janaki Puran Branch, Sahara Estate Road, Lucknow 226021 being account no. 554802010008151 on 26/09/2016 and 27/09/2016 respectively. So, the complainant was/is perhaps closely associated with Santosh Mishra who knew personal I/D of the complainant and all such technical devices required for transfer of Bank account through RTGS/NEFT etc. on behalf of complainant otherwise it is perhaps not possible to get transferred bank account by telephone number only as has been alleged by the complainant.
After proper appreciation of attending circumvents, it is clearly established that here by obtaining a swap sim in the name of complainant, Santosh Mishra or his father Ashok Mishra or one Salman had no occasion to operate the current A/C of the complainant through net Banking system. If they were not aware about the personal Number of the complainant and his customer ID. No.
Certainly, the fraudsters knew the customer ID. No. of the complainant and the password number of the complainant and for that reason through internet systems, they could manage the fund transfer from the account of the complainant through RTGS and NEFT.
In the case, the swap sim card was used for using the O.T.P received and not for only other purpose.
The entire Fund transfer was completed between 26/06/2016 AND 27/09/2016. As the sim tagged with the mobile of the complainant was blocked the swap sim of the said number no message in the mobile of the complainant could be received from the bank.
The complainant came to know the Fund transfer from his account on 27/09/2016 by direct approach to bank and obtained bank statement of transfer details and inspite of that his FIR before the cybar cell of Siliguri P.S. date 27/09/2016, the name of miscreants Santosh, Ashoke and Salman was not inserted.
The BSNL authorities on 26/09/2016 advised him to make the swap sim block immediately by a FIR by using the toll-free number of BSNL but the appellant was negligent on his own part for not blocking the sim.
So, the Act and conduct of the complainant speaks that he had contributory negligence on his part.
He did not come to the consumer court with clean hands and not entitled to get any equitable relief for dilatory action in blocking the swap sim before its operation.
Rather, he can not be compensated for his own fault as his personal password and customer ID. Could be disclosed to the miscreates.
The miscreates are not the professional hackers as they have made the fund transfer through RTGS and NEFT in their own accounts in the nationalized bank with open discloser. Cyber hackers generally hack the accounts by using their fake accounts.
Rather the offence of fund transfer illegally beyond the knowledge of account holder is a cybercrime and the same still now in investigation stage.
So, mere allegation of deficiency of service and negligence casted upon BSNL and nationalized banks, cannot be grounds to extract compensation from them for the loss suffered the complainant due to his own fault.
Thus, these two issues are answered against the complainant case on merit.
Hence, it is ordered
That the instant consumer complaint U/S 17 of CP,Act 1986 filed by one Rakesh Bhutra stands dismissed on contest without cost against OP No. 1 to 3 and dismissed exparte against the rest Ops.
