ORDER
08.10.2024
SH. RAJESH, MEMBER
Vide this order we will be deciding the maintainability of the present complaint.1. Present complainant has been filed by complainant seeking direction to OP to refund the amount fraudulently deducted from his digital wallet with interest, cost and compensation.
2.
It is stated that complainant believing MobiKwik a safe and better financial service provider joined it as his digital wallet on his mobile number and started transactions through it under his bank account no. the complainant has always been adhering to all the payments and repayment schedules of all his financilal transactions through Mobikwik but the Mobikwik didn't discharge its obligations towards its customers and failed to alert the complainant as to any online cybercrime.
3.
It is stated that the complainant is the victim of cybercrime committed upon him on 07.02.2024for a sum of Rs. 52,130/-which have been illegally unlawfully and fraudulently transferred to Vedant Computers Sales Pvt. Ltd. through mobile No. 8188507447 pretended and impersonated to the be Mobikwik customer care. The complainant never
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made any above mentioned transactions with said company. It is stated that complainant with immediate effect reported the matter to the concerned Cyber Police Station North West Delhi which has been duly registered under Acknowledgment No. 30802240005309 dated 07.02.2024.
5.
It is stated that complainant also reported the incidence to OP but no action was taken by Mobikwik to reverse credit entries and it was incumbent on the OP to take a positive initiative in the matter.
6.
It is stated that on OP not only failed in discharging its duty in taking proper action in the matte but also failed to keep the data of the complainant confidential as the staff of the OP having connivance with the fraudster has leaked the data of the account of the complainant to partner this fraud money and the complainant has suffered a lot due to the negligence and wrongful act of the OP.
7.
It is stated that instead of taking proper initiative in the matter and reversing credit entries OP sent a demand notice dated 302.03.2024 which made the complainant completely shocked and astonished as the OP had illegally and unlawfully made the demand of money from the complainant. The notice does not disclose the true facts and does not disclose the source and particular of the sum which the OP wants the complainant to pay.
8.
It is stated that OP at the very first instance assured the complainant to initiate the investigation but to the disappointment of the complainant, the OP failed to provide any relief in this regard.
9.
It is stated that the generation of numerous complaint numbers made it difficult for the complainant to get in touch with the OP in respect of his complaint status.
10.
It is stated that due to the deficiency of services by OP the complainant has been put to great mental agony and harassment.
11.
It is stated that the OP is liable to compensate the complainant for the mental agony and financial loss caused to him.
12.
It is therefore complainant has approached before us seeking direction to OP to refund the amount which was fraudulently deducted from the complainant's bank account with interest, cost and compensation.
13.
We have perused the contentions raised in the complaint and record of the case and have also heard Sh. B.S. Malik Ld. counsel for the complainant. At the outset we need to decide whether present complaint is maintainable under Consumer Protection Act, 2019.
14.
The Point for consideration before us is whether money which was illegally and fraudulently deducted from the saving account of a customer, is a consumer dispute.
15.
It is relevant to consider judicial pronouncement touching the issue involved in the present complaint case.
16.
In Sheenam Raheja vs State Bank Of India CC NO. 10 OF 2011 decided on 19 May 2023 by Hon'ble NCDRC it was observed: -
11. The matter clearly has issues of a criminal nature involved warranting a proper investigation under the relevant sections of the Indian Penal Code. Such issues cannot be deal with under the Consumer Protection Act or in a Consumer Court which is required to dispose of matters through summary proceedings. A matter of forgery of cheques and requisition slips cannot be dealt with in this Commission for this reason. A consumer complaint alleging deficiency in service on the part of the Bank cannot be adjudicated until the nature of
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deficiency is prima facie established. As is manifest in the instant matter, until the FIR before the EOW, Delhi Police get finalised and the charge sheet before the appropriate court of law is finalised, it would not be possible for this Commission to adjudicate the matter.
12. For the foregoing reasons, this complaint is dismissed as being infructuous at this stage with liberty to the complainant to approach this Commission appropriately as and when there is an order establishing the liability of the opposite party in order for the prayer to be considered and adjudicated as per the provisions of the Consumer Protection Act, 2019.
In the present case also there are allegations of fraud, cheating and theft on account of which money was withdrawn from the bank account of the complainant. Same cannot be adjudicated upon by this Commission under C.P. Act, 2019 unless there are direct allegations of deficiency in services or unfair trade practice adopted by OP after conclusion of investigation by police authorities.
17.
The withdrawal of an amount from the complainant's bank account, allegedly in an illegal and fraudulent manner, does not fall within the purview of a consumer dispute as defined under the Consumer Protection Act, 2019. The relationship between the digital wallet service provider and its account holders is governed by contractual obligations, and disputes arising from fraudulent transactions involving third-party acts do not qualify as a consumer service deficiency under the Act.
18.
Therefore, this Commission dismisses the complaint as not maintainable under the provisions of the Consumer Protection Act, 2019, without prejudice to the complainant's right to seek appropriate relief before the competent forum.
19.
On the basis of above statutory position, judicial pronouncements observations and discussions and for the foregoing reasons, we are of the confirmed opinion that present complaint is not maintainable, therefore, dismissed.
20.
Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon'ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
File be consigned to Record Room.
Announced in the open Commission on 08.10.2024.
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(SANJAY KUMAR) (NIPUR CHANDNA) (RAJESH)
PRESIDENT MEMBER MEMBER
[ RAJESH]
PRESIDING MEMBER
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