BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                       

Dated this the 27^th April 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.64/2014

(Admitted on 18.2.2014)

Mr. K. Prabhakara,

S/o Late Kantha,

Aged 68 years,

R/at “Shreekanth”,

Southerpeta Road,

Kankanady, Mangalore 575002.

                                                               ….. COMPLAINANT

(Advocate for the Complainant: Sri DSA)

VERSUS

1. SBI Cards,

DLF Infinity Towers,

Tower C, 10^th 12^th floor,

Block 2 building 3,

DLF cyber city,

Gurgaon 122002, Haryana.

2. SBI Card and Payment Services Ltd,

P.O Bag No.28, GPO,

New Delhi 110001.

Represented by its authorised signatory.

                                                                          ….......OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: Sri MR)

(Opposite Party No.2 Exparte)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

I. 1.The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay Rs.1,00,000/ as compensation, grant costs of this complaint and such other reliefs.

2.   In support of the above complaint the complainant K. Prabhakara, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C12 as detailed in the annexure here below. On behalf of the opposite parties Vipin Thomas, (RW1) Authorised Signatory, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to as detailed in the annexure here below.

The brief facts of the case are as under:

We perused the complaint and the version pleadings. This dispute is with regard to wrong debit of transaction made through internet banking to the complainants credit card account. The complainant states that he has obtained a credit card from the opposite party bank. On seeing the transaction statement of July, 2013 he found three transactions of same amount Rs 4,999/ being paid to Airtel Money BD which the complainant alleges he has not done it and the opposite party is liable for the wrong debit in his Account. The opposite party contended that, the card will be with the complainant and the secret pass word also with the complainant. If any fraud in the internet transaction the opposite party is not liable, it is clearly stated in the condition while issuing the credit cards and it is agreed upon by the complainant. It is related to cyber crime and only the cyber police can detect the same, but the complainant has not given any complaint with the cyber police, and hence there is no deficiency in service on their part. These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

We have considered the evidence lead by the parties and the documents produced. The admitted facts are, the complainant has been issued with the credit card from the opposite party bank, and there is debit of Rs 4,999 / on 10^th 11^th 12^th of July 2013 for the internet transaction related to Airtel Money BD to the complainant’s credit card account. It is denied that those above stated transaction done by the complainant. The opposite party denies their liability with respect to above transaction to the complainant and deficiency in service from their part. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether is there is any deficiency in service on the part of the opposite party?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

We have examined carefully the evidence led by the parties and studied carefully the documents produced.  Notes filed considered and heard the party counsels and answered the above points as under

1. In the affirmative.
2. In the negative.
3. In the negative.
4. As per adjudicated order.

REASON

POINT NO. 1:- The complainant claims he is holding the credit card issued by the opposite party and the opposite party not denied it. So there formed a relation of consumer and the service provider between the complainant and the opposite party. Hence answer for the point no 1 in the affirmative.

POINT NO. 2: The crux is the complainants credit card account is debited with three transactions of Rs. 4,999/ each as payment made to Airtel Money BD. But the complainant denies having made these three transactions. The opposite party contends that as per terms & conditions internet transactions frauds and the dispute with the merchant the opposite party is not responsible and not liable. Before proceeding to adjudicate, the facts we noticed in the files on record and evidence is need to be mentioned.

2.     The credit card was with the complainant and the secret pass word also issued to the complainant and he was doing transactions with his credit card since 20 years. While issuing the pass word some mischief cannot be suspected. The internet transaction can be done through credit card, only with the credit card number as well as Pin (secret pass word). It is undisputed that the payment made through credit card with interment banking.

3.     It is also evident from record that at the time of transaction took place the card was with the complainant and the pin number also with the complainant as he claims. It is also seen from record that, later after few days   the complainant has requested for the blocking the card as per complaint averment in Para 5.

4.     The complainant not given any complainant to cyber-crime police as soon as the disputed transaction made but he gave police complainant only on 28.03.2014 that too after the complaint filed in this forum. It is admitted  through interrogatories (Q No 10) served by the opposite party that the complainant used to receive SMS with regard to credit card transaction on day to day basis. In Q No 13 the complainant admits that he had signed the declaration for follow the condition mentioned in the application form. Now the question is why that much delay in giving police complaint and how the police can take actions to book the culprit if at all there is any cyber crime.

5.     It is also seen from the case file that the actual recipient of the money the Airtel Company has not been made as party.  The complainant could have elicited some facts in proving his case. But in contrast the complaint shed his responsible and pass it on the opposite party as per opposite party interrogatories Q No. 14 to 17 which were answered as, it is not his concern.

6.    The opposite party had stated in his version in detail with regard to the internet transaction about the Merchant URL as www.airtelmoney.in Merchant ID 281345  card holders  IP  address as 59.164.3.134:. In spite of all these details the complainant never thought of making the Airtel as party or not denied that the IP  address as 59.164.3.134 of computer is not belonged to him. Also there is no record to show that these details has been given to police for detecting the crime if it is.

7.   It is seen from the EX C 3 the monthly card statement that transactions were opted for conversion for flexi pay (easy terms). We are unable to believe a person who is doing fraud will opt for flexi pay conversion.

8.    The record also shows that there has been a settlement reached between the complainant and the opposite party with regard to disputed amount. As per EX R 1 a statement dated 13.04.2015, the complainant had paid Rs 10,000/ and remaining amount of Rs 23,432.56 was credited as settlement (write off). During the pending proceedings, the complainant without resist accepted the settlement and paid the settlement amount.  In our opinion once the matter settled voluntarily during the pending proceedings and payment made without resist, can the complainant be entitled for the relief unless amending the pleadings? There is no application for amending the pleadings as per file records or any memo filed to report the settlement having been reached. In our opinion it amounts to concealing of facts to the forum.

9.   Relying on the above facts and circumstances we hold the complainant had agreed for the terms & conditions of the credit cards, that the opposite party is not liable for internet frauds, the dispute with merchant, the pin and card if not protected properly and precautions are not followed, if proper steps not taken in spite of knowing the fraud committed through SMS alert the complainant himself responsible as he is the holder of the card and the pin. The complainant had not given complaint in time to the police, not denied the IP address as 59.164.3.134 as not belongs to him and not made the Airtel company as party to the complaint. These circumstances made to hold the complainant not proved his case and the opposite party is not liable for the complainant for the deficiency in service. Hence we answered the point no 2 in the negative.

POINT NO. 3: As we observed in the forgoing Para that the complainant not proved the deficiency in service on the part of the opposite party he is not entitled for the relief prayed for.  However as we observed in Para 8 that there was a settlement reached between the opposite party and the complainant with regard to relief prayed amount Rs 33,432.16. The complainant   has agreed for a settlement by paying Rs.10,000/ and got written off balance amount but it is not brought to the knowledge of the Forum which amounts to concealment of facts. The complainant herein warned not to commit the same in future.

POINT NO. 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is dismissed. No order as to cost

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 8 directly typed by Member, revised and pronounced in the open court on this the 27^th April 2017)

             MEMBER                                                PRESIDENT

    (T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                 D.K. District Consumer Forum

Additional Bench, Mangalore.                   Additional Bench, Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1:K. Prabhakara,

Documents marked on behalf of the Complainant:

Ex.C1: Endorsement given by the notice.

Ex.C2: copy of notice complaint.

Ex.C3: Statement of bill dated 13.7.2013.

Ex.C4: Letter dated 26.7.2013

Ex.C5: Letter dated 1.9.2013

Ex.C6: Letter dated 20.9.2013

Ex.C7: Letter dated 21.10.2013

Ex.C8: Letter dated 27.12.2013

Ex.C9: Letter dated 18.1.2014

Ex.C10: Letter dated 31.1.2014

Ex.C11: legal notice dated 14.1.2014.

Ex.C12: No due certificate dated 24.4.2015 issued by SBI cards and payment services pvt. Ltd.

Witnesses examined on behalf of the Opposite Parties:

RW1: Vipin Thomas, Authorised Signatory

Documents marked on behalf of the Opposite Parties:

Ex.R1: SBI Card monthly statement.

Dated: 27.4.2017                                          MEMBER