3. Despite several communications with opposite parties complainant’s problem was not resolved and he could not avail any cash from any of ATMs in France or Italy or use the said card for making any payments even for shopping. Complainant faced acute financial crunch as he did not carry sufficient cash with him only because he depended heavily on Global International Debit card issued by the opposite parties. Complainant could not afford to travel either in any private vehicle or in public transport without the local currency available at his hand. He and his family were forced to take long walks for site seeing. For longer distance travel, they had forced to borrow from his friends and relatives, putting the entire family of complainant to shame and ridicule. Complainant and his family who actually planned for a bigger vacation, but had to make adjustment in their plans and had to drop out various places of visit and cancel various events to save on their money. Global International Debit card issued by opposite parties proved to be a dumb squib as it did not provide cash to complainant even once in their tour to France and Italy. The complainant and his family were humiliated to borrow from friends and relatives. It subjected complainant and his family members to extreme inconvenience, degraded their reputation and subjected them to extreme mental stress and agony. The entire trip to France and Italy became a big waste of time, energy and money for complainant and his family as he could not enjoy his tour because of artificial financial crunch created by the negligent and utterly deficient services of the opposite parties. The opposite parties were utterly negligent and deficient in their services in providing the Global International Debit Card which never worked in foreign soil. Furthermore, the opposite parties overseers services were also extremely poor as they could not make any alternative arrangements in /France and Italy or from India to ensure that the card works at some point of time, though they got timely information. He and his family landed in Pondicherry on 31.5.2015 and thereafter he issued a letter to both opposite parties on 23.9.2015 calling upon them to pay a compensation of Rs.15,00,000/- for all the mental agony and strain suffered by complainant and his family. The letter was received by both opposite parties but they choose to ignore the said letters. It further shows the utter callousness, indifference and lack of responsibility on the part of opposite parties. They did not have the courtesy to even apologize for the blunder committed by them. Hence the complaint.
4. The reply version filed by the second opposite party and the same was adopted by first opposite party briefly discloses the following:
The opposite party denies each and every allegations contained in the complaint. The second OP bank is a very leading Branch with lakhs of customers by Accounts with various facilities. Said Branch is always equipped with best of Employees and Equipments. The OP Bank and its several Employees are in blameless services for long to all its customers including in Foreign countries. The complainant is one such customer of OP Bank. It is in such course of proper and official conduct, complainant had trust and confidence on second OP Bank and had thus approached for referred International Debit Card. Said Card is admittedly checked and used in India to satisfaction of complainant and on terms as in papers. Said terms include that Bank is not responsible or liable for failure of any ATM to dispense cash for any reason or is unable to avail facility. Despite such factual and legal situations as are personally explained to complainant, second Ops relevant Official had at once contacted its relevant Head Office on reference to contents as in this complaint. It was thus informed that referred card is perfectly operatable and thus contrary allegations are false. Such truths were also reported to complainant/consumer during personal meetings with relevant officials. The complainant had then reported to second OP bank on 8.5.2015 by stating that he could not get cash from some ATMs in France. Relevant officials of 2nd OP Bank had then duly and promptly contacted its relevant offices to find out the reason of problem. It was thus reported to second OP that issue was investigated and that PAN in France/Europe did not locate hit any transaction in card from 3rd to 31st May 2015. It was thus noted that Master card Data Base did not have any Hit/Entry of referred card during referred date and period. In view of truths that Master card date Base did not hit or enter use of referred card in relevant dates, it is to be concluded that problem of such non-hitting is either due to fact and card was not used as alleged or that relevant ATMs are not in order for correct functioning. Thus such situations are in clear coverage under Exoneration clauses as are in said terms in referred cared. In view of aforesaid circumstances, it is shown that problems are purely technical and are not in making by any action or omission on part of first and second Ops bank. Consequently both Ops are not in any negligence or deficiency of service to complainant in any manner. Thus OP bank had acted in complete genuiness and total bonafides to strictly comply with directions by lawful and official proceedings and papers. Yet employees of OP bank had politely explained actualities and technicalities and thus tried to do best to satisfy customer. Yet complainant had developed personal Ego on talks with relevant officials and had thus threatened them on legal actions by stating that he is a high official in consumer courts at Pondicherry. Then the complainant had sent letter on 23.9.2015. OP Bank had at once personally contacted complainant and had again repeated said genuine procedures and technicalities. Complainant had also responded well by show of understanding and had thus stated to drop further actions on matter. The complainants do not specify mandatory particulars on dates and sums or places of ATMs as regard alleged service and alleged deficiency. Complainant does not annex any proof for failures of ATMS as alleged. The allegations in complaint are also very vague and insufficient to form a cause for action under all relevant law. The OP bank did not at all omit to act or to cause any undue delay or deficiency in service to complainant in any manner at any time. Thus OP bank and its officials are only in lawful and technical conduct by due compliance with duties as per Banking laws and Practice. Hence the OPs prayed for dismissal of the complaint, with huge compensation.
5. On the side of the complainant, the complainant was examined as CW1 and Exs.C1 to C10 were marked and on the side of Opposite Parties, Aditya Varma the Assistant Manager of the second opposite party representing the first and second opposite parties was examined as RW1 and Ex.R1 and Ex.R2 were marked through him.
6. Points for determination are:
- Whether the Complainant is a Consumer?
- Whether any unfair trade practice or deficiency of service is attributed by the act of the Opposite Parties?
- Whether the complainant is entitled for any relief?
Both side records and evidence were carefully perused by this Forum and observes as follows:
8. Point No.1:
The complainant was holding a Saving Account with the second opposite bank bearing Savings Account No.10831326536 Ex.C4 and holds a domestic debit card issued by the second opposite party and further the complainant being convinced by the briefing of the second opposite party regarding the usage of international Debit card, opted for the same and received it from the first opposite party bearing No.5596010017968701, Ex.C2. Hence under these aspects the complainant is considered to be a consumer as against the opposite parties as per section 2(1)d(ii) of the Consumer Protection Act. This point is answered accordingly.
9. Point No.2:
The complainant was holding a savings account with the second opposite party bank vide account No.108313226536 and also holds a domestic debit card issued by the second opposite party. The complainant and his family members having planned for a vacation trip to France, Italy and Swiss, approached the second opposite party for letting known about the features of International Debit card for using it in the foreign countries as alternative for having cash in hand. Being convinced by the advantages of the International Debit card of the opposite parties opted for the same and received one from the first opposite party bearing No.5596010017968701 Ex.C2 and the card was activated and used it till 2.5.2015 in Pondicherry. It is submitted by the complainant that an amount of Rs.7,00,000/- was also credited into the account of complainant maintained before the second opposite party as early as 10.2.2015 to meet out the expenses in the tour and accordingly the complainant and his family members left for France on 3.5.2015 as scheduled. Thereafter on reaching France, the complainant approached the ATM centres supporting master card services to fetch money but none of the ATMs there at France provided the money, instead received only the Electronic message as operation cancelled with no print out except for two ATMs which gave a print out of the message that "operation cancelled" Ex.C-6. The complainant being shell shocked sought the help of second opposite party through one of the complainant's colleagues by addressing the situation of the complainant through a letter dated 8.5.2015 and further emails Ex.C8 and Ex.C9 dt.11.5.2015 and 18.5.2015 respectively were sent to the second opposite party to sort out the issues. Despite several communications sent to the opposite parties, the complainant's issues was not sorted out by the opposite parties and never responded to the complainant and hence the complainant being solely dependent on the Global Debit Card and finding no way to meet out the expenses in the foreign land, was forced to borrow money for the same from the friends residing at France and due to the financial constraints the complainant cut short his vacation trip and came back to India on 31.5.2015. Being aggrieved by the act of the opposite parties the complainant preferred this complaint against this opposite parties claiming compensation due to the mental agony physical hardship and disgrace faced by the complainant due to the unfair trade practice and deficiency of service of the opposite parties.
10. On the other side, the opposite parties denied all the allegations raised by the complainant and submitted that the Global Debit card was not used by the complainant and the master card data base did not have any hit entry of the complainant card during the referred period alleged in complaint and further submitted that the problems alleged by the complainant with regard to the ATM centre were purely technical and does not bind the opposite parties as per the terms and conditions of the Global debit card Ex.C3 issued to the complainant by the opposite parties. Hence the opposite parties cannot be fastened with allegations of negligence or deficiency of opposite parties of the complainant and sought for the dismissal of the complaint.
11. On the perusal of the evidence, it is observed by the Forum that the terms and conditions manual Ex.C3 was issued only when the Global Debit card Ex.C2 was issued to the complainant and not at the time of giving the applications seeking for the issuance of Global Debit card and it is evident that the complainant was not given an opportunity to know about the terms and conditions of the manual Ex.C3, before availing the Global Debit card from the Opposites parties and further from the evidence of RW1 it is clear that the complainant was let known about the terms and conditions manual Ex.C3 only at the time of issuance of Global debit card. The evidence of RW1 is also follows:
"It is true to state that Ex.C3 is not furnished to the customers availing the Global Debit card at that time when they give an application for availing the said card….."
"It is true that as per the contents of Ex.C1, we have requested the complainant to spend few minutes in reading the Ex.C3 and know about its terms and conditions governing usage of Ex.C2 for the first time. It is true that we have not produced any evidence to show that the complainant was put to notice about the terms and conditions mentioned in Ex.C3 prior to his availing the Global debit card facility in Ex.C2….."
It is the contention of Opposite parties that the application for getting the Global Debit card itself will contain the terms and conditions governing the usage of card but the application was not produced before this forum to substantiate their claim and the opposite parties have not produced any other evidence, to show that the complainant had knowledge of the terms and conditions of Global Debit Card before availing for the same. The evidence of RW1 is as follows:
"……the application itself will contain the terms and conditions governing usage of Global Debit card. It is true to state that we have not produced the application given by the complainant for availing Ex.C2. It is true to state that I cannot say with certainity that all the terms and conditions contained in Ex.C3 also find place in the application given by the complainant for availing Ex.C2…..".
Hence the contention of the opposite parties that the terms and conditions in Ex.C3 does not fix any liability with the opposite parties in the event of any failure of the ATM in not dispensing the cash doesn't deserves any appreciation.
12. It is the further contention of the opposite parties that the complainant had not used the Debit card during the relevant period of Stay at France, but on the perusal of evidence of RW1 it is observed that the RW1 has admitted in his evidence that the slips Ex.C6 which shows "operation annulee" generated from the ATMs at France produced by the complainant can be generated only if the Global Debit card Ex.C2 is inserted in ATM maintained by the Societte Generale Bank at France. The evidence of RW1 is as follows:
"It is true that Ex.C6 can be generated only if Ex.C2 is inserted in the ATM maintained by the Societte Generale Bank in the branch mentioned in the said slips".
Hence the plea of the opposite parties that the Global Debit card was not used by the complainant at France cannot be taken into consideration.
13. On the further perusal of the evidence of RW1 it is observed that RW1 has admitted in his evidence that the letter regarding the failure of usage of ATM card given by the representative of the complainant Ex.C7 dt.8.5.2015 and the mails Ex.C8 sent by the complainant explaining the conditions of the complainant was received by the opposite parties and despite the opposite parties having received the same, least bothered to respond to the complainant and it was only after filing of this complaint before this forum by the complainant on 19.2.2016, the opposite parties have initiated an investigation process on the complaint of the complainant and the perusal of the communication mails for the period between 3.3.2016 and 20.3.2017 Ex.R2 reveals the same. The evidence of RW1 is as follows:
"It is true that Ex.C7 was received by the bank on 8.5.2015 wherein the representative of the complainant had given details of his inability to use Ex.C2 in France as on that date. It is true that in the said letter in Ex.C7, it is mentioned that the complainant was receiving a message from the ATMs, he used in France containing "Operation cancelled". It is true that email id found in Ex.C9 belongs to our Branch".
The above act of the opposite parties clearly exposes the callousness and wayward attitude of the opposite parties towards the complainant.
14. On the perusal of the statement of account of the complainant Ex.C4 it is observed by the Forum that the Gobal Debit card Ex.C2 was activated in compliance of the terms enumerated in Ex.C1 and the purchase made by the complainant using the Gloal Debit card on 2.5.2015 before the date of leaving for France clearly shows that the complainant has duly complied the instructions of the opposite parties and it is the opposite parties who had failed in their duty of rendering the service to the complainant. Further the statement of accounts Ex.C4 of the complainant reveals that an amount of Rs.7,00,000/- was deposited by the complainant to meet out the expenses on the trip to France was not used by the complainant due to the failure in the usage of Global Debit card and obviously when the very purpose of obtaining the debit card was not served, no other way the complainant would have approached the relatives for finance assistance to meet out the expenses and this would have definitely humiliated the complainant and the submission of the complainant that due to the financial constraints which arose out of the act of opposite parties the complainant cut short his tour and returned to India cannot be ruled out. Lastly the most inhumane part is the irresponsiveness of the opposite parties despite the letter of complainant being received by the opposite parties explaining the hapless situation of the complainant in the foreign land, expose the utmost callousness and indifferent attitude of the opposite parties which caused mental agony and hardship to the complainant and this forum feels just and proper to award compensation to the complainant.
15. In view of the discussion made in the paras above, it is held by the forum that the opposite parties are liable for the mental agony and hardship suffered by the complainant due to the deficiency of service and unfair trade practice of the opposite parties. This point is answered accordingly.
16. Point No.3:
In the result, the complaint is allowed. The opposite parties are jointly and severally held liable and directed:
1. To pay the complainant a sum of Rs.1,00,000/- as compensation towards physical hardship, mental agony, pain and sufferings due to the deficient service and unfair trade practice of the opposite parties.
2. To pay a sum of Rs.5000/- towards the cost of the proceedings.
Dated this the 31st day of July 2018.
- ASOKAN)
PRESIDENT
(V.V. STEEPHEN)
MEMBER
(D. KAVITHA)
MEMBER
COMPLAINANTS' WITNESS: NIL
