A. P. Sahi, President Member
Heard learned counsel for the parties. With their consent and after having heard the learned counsel at length, the matter is being disposed of finally at this admission stage itself.
The contention raised in this appeal is that the Uttar Pradesh State Consumer Disputes Redressal Commission at Lucknow (hereinafter referred to as the State Commission) relying on the Circular of the Reserve Bank of India has proceeded to allow the complaint on the assumption that it cannot be ruled out that the employees of the Bank were in connivance with some imposter who might have hacked the account of the complainant (respondent no.1).
The contention raised on behalf of the appellant Bank is that merely relying on the Circular and without recording any finding on the facts relating to the transaction, the impugned order has been passed and as such the order cannot be sustained as it is bereft of any material or reasons to support the conclusions drawn as an opinion by the State Commission.
The State Commission at page 61 after having quoted the Reserve Bank of India circular has concluded in the penultimate paragraph as follows:-
“Having heard the arguments of learned Counsel for the complainant as well as learned Counsel for the opposite parties no.1 & 2 Bank of Baroda and after considering the facts and circumstances of the case as well as material available on record, I am of the opinion that the opposite party bank has committed deficiency in service and the submission of learned Counsel for the complainant appears to be justified and the complainant is entitled to get the reliefs claimed in the complaint as well as cost of the case.
In view of the aforesaid, I am of the opinion that the argument of the learned Counsel for the complainant has force and the complaint of the complainant is liable to be allowed with cost.”
Learned counsel for the complainant has put in appearance through a Caveat and he points out that the appeal does not contain all the documents that were on record and even filed by the opposite party/appellant bank which have not been referred to, and which, according to the learned counsel, reflect on the evidence on the basis whereof the conclusions have been possibly drawn by the State Commission. The contention is that the Fraud Monitoring Return (FMR) of the Bank which was on record itself gives indicators, particularly while recording the modus operandi in column no. 9.c thereof which is extracted hereunder:
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c |
Modus operandi |
Findings of the investigation are as under. 1. In the evening of 25.03.2021, five new beneficiaries were added in the internet banking channel of the customer after 18:18 pm. Customer claimed that only one beneficiary was added by him on that day and rest -4- were not added by him. 2. For adding beneficiary in internet banking channel, our bank used to send OTP and a new beneficiary registration alert on registered mobile number as well as registered email ID of the Customer, but the customer is claiming that he had not received any SMS on his mobile number in the evening of 25.03.2021. As per the logs details from our data center it was found that all the SMS were delivered on the mobile number of the customer. Further, the customer had also informed that in the evening of 25.03.2021 he had received 30 to 40 mobile messages from different commercial sites and these messages had been deleted by him on that day. On this incident the investigation officer is suspecting that fraudsters would have sent these commercial messages at the time of beneficiary addition to misguide the customer. 3. There is a cooling period of -4- hours for the net banking beneficiary activation. On completion of the cooling period, after 4 hours in the night of 25.03.2021 between 10.30 pm an amount of Rs.51.88 Lac has been transferred to -4- newly added beneficiaries (allegedly not added by customer) through -08- RTGS transactions using Internet Banking channel of the customer. Out of -4- beneficiaries -3- were having account with ICICI Bank and one with Punjab National Bank. 4. The investigation officer suspected that some third party might have obtained the customer’s internet banking credentials and OTPs by way of phishing, Identity theft, spyware or adware etc and initiated the fraudulent transactions. However, investigation officer opined in his report that only after completion of the investigation by the police department the actual modus operandi of the case can be concluded. 5. Investigation report reveals that there were no lapses found on the part of Bank. 6. QRT committee observed that the login made for these -08- fraudulent transactions were not from Lucknow. In view of the above the QRT committee at Regional office, Lucknow Metro Region declared the incident as fraud on 21.06.2021.” |
Learned counsel for the complainant also urges that the message which was allegedly sent on the mobile of the complainant as well as on the registered email ID, the timings thereof and with the said evidence being discussed, the State Commission seems to have arrived at the correct finding.
However, learned counsel for the appellant Bank contends that there is neither any assessment nor any analysis of the evidence nor a logical discussion so as to construe that the said reasons or the evidence formed part of the conclusions drawn by the State Commission. The submission is that the conclusions being bereft of those reasons, there cannot be any assumption of the aforesaid factors leading to the hacking and consequently the Zero Liability Circular would accordingly not apply on the facts of the present case.
Having heard learned counsel for the parties and having perused the documents on record, it is no gainsaying that reasons are the heartbeat of any judgment. There seems to be hardly any doubt that the bank account of the complainant has been hacked. The facts about the hacking are also being investigated by the police. Material in the shape of the digital trail and pointers towards source of hacking seem to have been internally probed as is evident from the Fraud Monitoring Form as pointed out by the learned counsel for the complainant. There are other averments from both sides available before the Commission and documents in support of their respective claims that may need discussion and analysis so as to manifest the preponderance of probabilities. The conclusions therefore have to be drawn by balancing the probabilities to establish deficiency on the Bank or find out if there was absence to take due care or negligence on the part of the Bank or its functionaries. The involvement or otherwise any lapse has to be culled out by assessing the possibilities leading to a preponderant probability.
The reason to be recorded should contain an analysis of the facts to conclude a probability. This process to state and link the facts to justify the probable cause is the reason that forms the foundation of a conclusion. It involves the influence of the facts that can be said to have in all likelihood caused the occurrence, the logical moderation whereof would form the contents or reasoning of the reasons. This exercise, if arranged with the relevancy and probity of the facts supporting the same, should thereafter express the satisfaction of the final opinion that forms the basis of the conclusions. The observance of facts, their influence and impact therefore should invariably be reflected expressly in an order to make it sustainable.
The aforesaid exercise is also obligatory and necessary as the Commission exercises a summary but inquisitorial jurisdiction, for which the Commission has been endowed with powers to summon or order discoveries as per Section 38(9) & (10) of the Consumer Protection Act, 2019 read with Section 49 thereof as explained by this Commission in the order dated 16.04.2024 passed in First Appeal No. 87 of 2024 (Aditya Birla Health Insurance Co. Ltd. Vs. Smt. Anita Garg).
The impugned order does not in the opinion of this Commission record the material or any reasoning as to what facts of the modus operandi in the incident led the Commission to conclude a deficiency on the part of the Bank. The application of the Circular of the Reserve Bank of India would be available only if the conclusions drawn are recorded after analysing the material on record.
Learned counsel therefore at this stage have agreed to the final disposal of the matter. Accordingly, the impugned order dated 22.02.2024 passed by the State Commission cannot be sustained and is hereby set aside on this short ground alone for the reasons hereinabove, leaving it open to the State Commission to assess the evidence and proceed to record its reasons in support of any conclusions that it might like to draw on the basis of evidence led by the parties and with a request to dispose of the matter preferably within three months.
The appeal is accordingly allowed and the matter is remanded to the State Commission with the aforesaid observations.
It is open to the parties to rely on the evidence which is already on the record of the State Commission.
The statutory amount pre-deposited before this Commission may be remitted to the State Commission to be kept in deposit till the final disposal of the matter and shall be considered for its disbursal accordingly upon the final disposal of the matter.
The parties may appear before the State Commission, as agreed, on 08.05.2024.
