Hdfc Bank And Ors. vs Shashikant And Ors.

THIS revision petition has been filed by the petitioners against the orders dated 20.06.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ''the State Commission'') in Appeal No. 2186/2007 - Mr. Shashikanth Vs. HDFC Bank Ltd. & Ors. by which, while allowing appeal, order of District Forum dismissing complaint was set aside and complaint was allowed.

BRIEF facts of the case are that complainants/respondents have joint SB. Account with OP No. 2 Bank with effect from 27.7.2000, with facility of net banking. On 20.2.2007 complainant No. 2 received SMS on his mobile number from OP No. 2 informing and confirming a debit transaction of Rs. 4,50,000/ - dated 19.2.2007 by way of third party fund transfer through net banking to a beneficiary, who is actually unknown to the complainant. Immediately complainants approached OP No. 3, on enquiry they came to know that the said amount has been transferred in the name of one person Ananda Lingaraj Kolakar. Though complainants requested OP No. 3 to freeze his account, it went in vain. Again on verification complainants came to know that with effect from 17.2.2007. OP No. 2 provided a facility of third party fund transfer through net banking. At no point of time complainants have opted for the said facility, they have not consented for the same nor they allowed transfer of their fund under said TPT. The so called application filed for availing TPT facility was not submitted by the complainant No. 2. His signature is forged including his E -mail address. OP without verifying the said genuinness of the signature acted upon the said application. Ananda Lingraj Kolakar is a stranger to the complainants having no transaction of any kind with the said person. Due to the carelessness and negligence of OP, complainants were forced to face both mental agony and financial loss. The culprits by impersonation managed to open the beneficiary account and there is hacking of the PIN. Complainant felt the hand in glove of OP in the said transaction. Complainants have also lodged the criminal complaint to the police alleging the fraud and cheating, which is under investigation. Alleging deficiency on the part of OPs, complainant filed complaint before District forum. OP resisted complaint and submitted that while availing the facility of net banking an agreement came to be executed between the parties, under the said agreement customer ID and PIN is to be kept confidential. It is the complainants who have violated the said terms and conditions to the reasons best known to them. Complainant logged into a fictitious website just to enrich themselves and disclosed their customer ID and the password. The person who got the said information misused it, must have operated the complainants account for that OP cannot be blamed. Though complainants are aware of the fact of transfer of the said huge amount through net banking in favour of Ananda Lingaraj Kolakar an alleged beneficiary, he is not made as a party in this complaint nor any civil suit is filed for the recovery of the said amount. The compliant made by the complainants to the Banking Ombudsman has been rejected. Denying deficiency on the part of OP, prayed for dismissal of complaint. Learned District forum after hearing both the parties dismissed complaint. Appeal filed by complainants was allowed by learned State Commission vide impugned order and directed OPs to pay Rs. 5,25,000/ - with 6% p.a. interest against which this revision petition has been filed. Heard learned Counsel for the parties and perused record.

LEARNED Counsel for the petitioners submitted that learned District forum rightly dismissed complaint, but learned State Commission committed error in allowing appeal, though, aforesaid transaction took place on account of disclosing password and customer ID by complainants to third person and there was no deficiency on the part of petitioners. It was further submitted that Mr. Ananda Lingaraj Kolakar in whose account money was transferred has not been impleaded as a party, so complaint was not maintainable and on account of complicated questions of law consumer for a had no jurisdiction to entertain complaint; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents submitted that as petitioners failed in verifying signatures and allowing transactions by third person without authority, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

LEARNED State Commission allowed complaint only on this count that signatures on the application form filled for opening account does not tally with the signatures found on the application filled by Sachin Bhansali seeking for transfer of amount through net banking which amounts to negligence resulting in deficiency in service. There may be some deficiency in not verifying signatures, but complainant''s account could not have been operated without disclosing his password and customer ID and prima facie there is contributory negligence on the part of complainant. Merely on the basis of affidavit filed by complainant it does not stand proved that complainant''s account was hacked and amount was syphoned from his account. Perusal of record reveals that Rs. 5,25,000/ - has been transferred from complainant''s account to account of Ananda Lingaraj Kolakar. Perusal of statement of account of Ananda Lingaraj Kolakar reveals that this account was opened on 28.12.2006 in which complainant''s amount by three TPT transactions was transferred on 19.2.2007 and 20.2.2007. This account contains number of debit and credit entries upto 1.4.2007 and Ananda Lingaraj Kolakar has not been impleaded as a party in the complaint which was necessary party for proper disposal of complaint. Complainant in para 12 of the complaint pleaded that he filed complaint with Airport Police Station Road, Bangalore and case is pending under investigation. It was further pleaded that Police investigation revealed that Ananda Lingaraj Kolakar was an innocent person, but no such investigation report has been place on record. Complainant has also filed affidavit of Ananda L. Kolkar in which he has stated that some miscreant using his password has opened Account No. 0531000129830 in his name and committed fraud. Complainant in his affidavit also mentioned same facts and has given clean chit to Ananda Lingaraj Kolakar. Till final report is submitted by Police it cannot be presumed that some third person by impersonation opened account in the name of Ananda Lingaraj Kolakar and has transferred complainant''s amount in fictitious account and has withdrawn that amount. In such circumstances, Ananda Lingaraj Kolakar was necessary party for adjudication of complaint.

ANANDA Lingaraj Kolakar has also submitted in his affidavit by impersonation account has been opened in his name. In such circumstances, complainant was required to prove two things; firstly, his password and customer ID were taken by third person unauthorizedly; and secondly Account No. 0531000129830 was opened by third person in the name of Ananda Lingaraj Kolakar by using his pan card and address, etc.

IT requires elaborate evidence and complex questions of law and facts are to be decided in this matter which cannot be decided by consumer for a in consumer proceedings and which can be decided only by appropriate court of law. This Commission in F.A. No. 227 of 2007 - HDFC Bank Ltd. Vs. Anand Kumar Gupta observed that consumer forum cannot be treated as a substitute to the Civil Courts where complicated issues requiring recording of elaborate evidence are involved and while dismissing compliant complainant was given liberty to approach appropriate court for redressal of his grievance. Hon''ble Apex Court in : (2006) 7 SCC 655 - Oriental Insurance Co. Ltd. Vs. Munimahesh Patel observed as under: "10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.

The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured should not have granted the relief in the manner done.

The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission."

In the light of aforesaid discussion it becomes clear that learned State Commission instead of allowing complaint should have directed complainant to approach civil court for redressal of his grievance.

CONSEQUENTLY , revision petition filed by the petitioners is allowed and impugned order dated 20.06.2008 passed by the State Commission in Appeal No. 2186/2007 - Mr. Shashikanth Vs. HDFC Bank Ltd. & Ors. is set aside and complaint stands dismissed with liberty to the complainant to approach appropriate court for redressal of his grievance. Parties to bear their own costs.