The District Commission failed to notice facts that prove deficiency in service, thus its order is contrary to facts and law: Karnataka State Consumer Disputes Redressal Commission

 1 Appeal No.583 2021 Date of Filing : 12.08.2021 Date of Disposal : 02.11.2021 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURUDATED THIS THE 02nd DAY OF NOVEMBER 2021 HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER APPEAL NO.583 2021 Sri.Lakshminarayan.K S o Krishnaswamy.R Aged 69 years R at No.36 Mallige Apartments 4th Main Road 11th Cross Malleshwaram Bengaluru 03. ..Appellant s Rep. by Party In Person) Global Cyber Security Response Team Pvt. Ltd. R at No.134 1st Floor 7th Main Road Near Maiyas Restaurant 4th Block Jayanagar Bengaluru 11. Rep. by its Director Manager. ..Respondent s 2 Appeal No.583 2021 O R D E R BY Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER 1. This is an Appeal filed U s 41 of Consumer Protection Act 2019 by the Complainant aggrieved by the impugned order dated 30.06.2021 passed by 1st Addl. District Consumer Disputes Redressal Commission Bengaluru Urban C.C.No.1004 2020 (for short District Forum Commission and the parties as arrayed in the consumer complaint). 2. The Commission heard learned counsel Complainant Appellant on admission and perused impugned order dtd.30.06.2021. Now the point that would arisen for consideration is whether impugned order passed by Commission below is contrary to the facts and law required to be interfered in this appeal for the grounds set out in the appeal memo 3. In so far as issuance of notice of this appeal is concerned served on OP yet he remained absent as such he is recorded as absentee party. The record found with this appeal in particular the impugned order also discloses OP Respondent remained absent before the commission below and he is placed exparte. 3 Appeal No.583 2021 4. The Complainant has raised consumer complaint against OP alleging deficiency in service in not protecting the devices given to him from hacking and sought for refund of Rs.35 000 paid towards said services. He also sought for award damages to the extent of Rs.1 lakh which off course negated by the Commission below for the reasons recorded in the paragraph 6 of the impugned order. 5. Let us examine Ex P1 3 receipts through which Complainant has paid Rs.35 000 to avail the services of OP Ex P2 is the receipt for having received laptop Ex P3 is acknowledgement for having received the said laptop Ex P4 is a forwarding letter Ex P5 is the copy of the report from Truth lab Ex P6 is the copy of the certificate issued by Truth lab U s.65 B of the Indian Evidence Act pertaining to the supply of copy of data downloaded from the Twitter account submitted by Mr.Lakshminarayana. Thus upon examination of these documents Commission below of the view “ if at all according to the Complainant the said devices were given to OP for from cyber attacks hacking virus infection and reinstalling the operating system with secure fire war there should have been an agreement or commitment letter given by OP agreeing to perform a particular act. Though it is stated that he 4 Appeal No.583 2021 has given comprehensive 15 points of what it has nothing has taken place to one Shuba that same is also not produced. If the same has been produced this Commission could have come to the conclusion that OP assured and undertook to do a particular act and the same was not done to hold a deficiency in service.” In our view such reasons could not be said sound reasons as the Complainant has availed the service of OP by paying Rs.35 000 for cyber security. As such as the Complainant did not have any technical background he rightly approached M s.Truth labs to do suitable tests to confirm the actual status of the devices and to this end he had submitted a Samsung mobile and Dell laptop to them. The Complainant has requested them to examine his email accounts and social media accounts and confirm if they were also hacked. Accordingly M s.Truth lab confirmed that the devices were accessed and remote monitored in other words hacked. However the Commission below failed to examine the expert report of M s.Truth lab who confirmed that Complainant‟s email account and social media account also continued to remain hacked. It is found from the record that the Truth lab had benefit of examining devices furnished to it which can be found in their report. It is also found in this report as to the expert profile nature of examination thereby recorded 5 Appeal No.583 2021 observations and findings by physical examination of the media along with mobile phone analysis forensic bit stream imaging hard disk analysis email account and social media account analysis thereby further recorded inference as „the data retrieved from the mobile phone marked Q1 indicated that some devices not recognized or used by the user were found to be using the wifi network connected with this mobile phone and hence the possibility of the wifi being compromised cannot be ruled out.‟ Further Truth lab report along with Certificate U s.65 B of the Indian Evidence Act reporting the data retrieved from the mobile phone marked Q1 indicated that the possibility of remote monitoring using the connected wifi network cannot be ruled as the data indicated signs of unknown devices connected with the wifi network as well as the fact that the screen of the mobile phone had been mirrored with a personal computer other than the laptop marked Q2. It is further informed that investigation of this nature is beyond the scope of private agencies and the same may be initiated through Law Enforcement agencies. The hard disk marked Q2a of the laptop marked Q2 did not indicate any signs of possible intrusions. Thus considering this report in consideration of inference drawn by the Truth lab in this consumer complaint Complainant has 6 Appeal No.583 2021 been availed the service of OP as to be held proved deficiency in service on the part of OP in some respect which is not at all examined by the Commission below. The OP is mean to render services of this nature had received amount from complainant as stated supra which in fact is not disputed by OP since he is placed exparte yet the Commission below has failed to notice all such facts found from the enquiry record. In such view the impugned order could be said contrary to the facts and law. Further to be noticed herein that not only from the proceedings but also from the proceedings before the Commission below OP remained absent and he failed to participate in both the proceedings at least to enable the Commission to arrive at a right conclusion or to rebut the documents placed by the complainant as the case may be. In such view inferences drawn of the commission below in favour of the OP and against the complainant have to be said incorrect. If OP comes and participated in the proceedings of the Complainant case and this appeal which would be made more strong to opine definitely on any of the points raised within the purview of the consumer law to decide on the complaint however OP leaved the matter to the Commission to decide unilaterally and commission below wrongly drew up inference against the complainant. 7 Appeal No.583 2021 6. In the above conclusion we are of the view that the Complainant is entitled for refund of the amount. However he could not be said entitled for Rs.1 lakh towards damages as claimed. Accordingly we proceed to allow the appeal filed U s.41 of CPA 2019. Consequently set aside the impugned order dtd.30.06.2021 passed in CC.No.1004 2020 by 1st Addl. District Consumer Disputes Redressal Commission Bengaluru Urban District and the Complaint filed by the Complainant is allowed in part and directed the OP to refund Rs.35 000 along with interest at 6% p.a. from the date of receipt till realization and to pay Rs.10 000 towards compensation and Rs.5 000 towards litigation cost within 60 days from the date of receipt of this order failing which the amount so awarded shall carry interest at 9% p.a. from the date of complaint till realization. 7. Notify copy of this Order to the District Commission and parties. Judicial Member President 8 Appeal No.583 2021 

Summary: The District Commission’s ruling in favor of the Opposition Party was held to be incorrect by the State Commission as it failed to consider all facts on record that clearly showed that the Opposite Party had provided a deficient service to the Complainant. This was observed in the matter of Sri. Lakshminarayan v. Glober Cyber Security Response, [Appeal No. 583/2021] before the Hon’ble President Justice Huluvadi G Ramesh and Judicial Member, Mr. K.B. Sangannanavar.  An appeal under section 41 of the Consumer Protection Act, 2019. The facts of the case involve the complainant raising a consumer complaint against the Respondent for deficiency in service by not securing his laptop from hackers and seeking compensation of Rs. 35,000 and Rs. 1 Lakh as damages. The Commission then proceeded with the examination of the submitted documents. The Complainant had approached Truth Labs to run tests to ascertain the status of his devices, as he was not a technical expert. The Certificate and Report from Truth Labs confirmed that his device, email and social media account were indeed hacked. Furthermore, his mobile phone was also being remotely monitored, unknown devices were connected to his Wi-Fi network. However, such intrusion was not found in his laptop.  It is this report that was overlooked by the District Commission. Throughout the proceedings the Respondent been absent and orders have been passed exparte, which made it difficult for the Commission to arrive at a reasonable conclusion. Thus, the State Commission was of the view that, “the Complainant is entitled for refund of the amount. However, he could not be said entitled for Rs.1 lakh towards damages as claimed. Accordingly, we proceed to allow the appeal filed U/s.41 of CPA 2019. Consequently, set aside the impugned order dtd.30.06.2021 passed in CC.No.1004/2020 by 1st Addl., District Consumer Disputes Redressal Commission, Bengaluru Urban District and the Complaint filed by the Complainant is allowed in part and directed the OP to refund Rs.35,000/- along with interest at 6% p.a. from the date of receipt till realization and to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation cost within 60 days from the date of receipt of this order, failing which, the amount so awarded shall carry interest at 9% p.a. from the date of complaint till realization.”