First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1060 of 2015
Date of institution : 23.09.2015
Date of decision : 22.08.2016
- Punjab National Bank, Loha Bazar, Dhuri through its Manager.
- Punjab National Bank through its Chairman, Bikhaji Kama Palace, New Delhi.
- Senior Manager, Credit Card Division, Atma Ram House, 12th Floor, 14 Tolstoy Marg, Cannaught Place, New Delhi.
(Through Sh.Ashish Ranjan, Senior Manager, Punjab National Bank, Loha Bazar, Dhuri, Punjab).
…….Appellants/Opposite Parties
Versus
Amarjit Singh Walia son of Sh.Balwant Sigh, resident of House No.788, Agar Nagar, Malerkotla, Distt. Sangrur.
…..…Respondent/Complainant
First Appeal against order dated 14.08.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur.
Quorum:-
Mr. J.S.Gill, Presiding Member
Mr. Harcharan Singh Guram, Member
Present:-
For the appellants : Sh.Anuj Ahluwalia, Advocate
For the respondent : Sh.Anil Kumar Garg, Advocate
HARCHARAN SINGH GURAM, MEMBER:-
Order
The appellants/Opposite parties (hereinafter referred as ‘OPs’) have filed this appeal against the order dated 14.08.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter referred as the District Forum), in consumer complaint No.173 dated 06.04.2015, vide which the complaint filed by the complainant was allowed with directions to OP No.1 to refund to the complainant the amount of Rs.33,623/- alongwith interest @ 9% per annum from the date of debit i.e. 25.06.2014 till realization. OPs were further directed to pay an amount of Rs.10,000/- being the amount of compensation for mental tension, agony and harassment and also an amount of Rs.5,000/- on account of litigation expenses.
2. Brief facts of the case are that complainant was working as a Deputy Manger at Punjab National Bank, main Branch, Malerkotla. He being an employee got credit card against clean over draft facility upto Rs.3,00,00/- and SMS facility was also available to him on his mobile No.98158-77768, in order to get information regarding transaction made through his credit card. He was transferred to Punjab National Bank, Main Branch, Dhuri from Malerkotla Branch. He opened his over draft account with Punjab National Bank, Dhuri vide account No.3474009300062817. On 18.11.2012, he was at his home at Malerkotla and received a message on his mobile number that purchase of Rs.29,000/- was made through his credit card. He was shocked to receive the above message. As such credit card was with him and he never allowed to use the same. As on 18.11.2012 being Sunday he approached credit card call centre and narrated the whole incident and requested them to close the facility of his credit card. He was informed that his facility was closed thereafter he received transaction dispute form which he filled up and sent the same to Credit Card Processing Centre, Sector 60, Noida. In response of his transaction dispute form he received a photo of a person who made the purchase of Rs.29,000/- alongwith details of purchase. On receipt of that information he again took up the matter with PNB Credit Card Cell by submitting that photograph of a person sent to him was not known to him and merchant receipt did not bear his signature. He requested that amount of Rs.33,623/- recovered from his account on 25.06.2014 be re-credited to his account. He gave a request to PNB, Loha Bazar to re-credit the amount of Rs.33,623/- which was debited from his account. He was informed that the said amount was debited from his account on the directions of credit card department of PNB. He again took up the matter of debit of Rs.33,623/- with credit card department and was directed to lodge an FIR in this respect. But, he had already lodged DDR No.28 dated 21.05.2013 in Police Station, City Maler Kotla, copy of the DDR was sent to the credit card processing centre, Sector 60, alongwith transaction dispute form. He had given written representations as well as verbal requests to the OPs to credit the amount of Rs.33,623/- in his account, which was wrongly debited on 25.06.2014. However, all his requests were declined. On failure to get any relief from the OPs he was compelled to file a consumer complaint in the District Forum and sought following directions be issued against OPs:-
- to credit the amount of Rs.33,623/- alongwith interest @ 12% p.a. from 25.06.2014 till credit in the account of the complainant;
- to pay Rs.50,000/- on account of mental agony and physical harassment;
- to pay Rs.11,000/- as litigation expenses and prayed that complaint be accepted.
3. Upon notice OPs filed their written reply and took legal objections that complainant did not approach the Forum with clean hands; suppressed the material facts; the complaint was not legally maintainable; they denied the averments made in the complaint regarding purchase on 18.11.2012 and also the averment that card was in his custody. It was submitted that complaint made purchase of Rs.29,000/- from Gurgaon on 18.11.2012. It was submitted that complainant be put to strict proof that he was at Malerkotla on 18.11.2012. Further it was admitted that credit card processing centre had closed the facility of the credit card on his request. It was also admitted that he had lodged his complaint. OPs denied the averment made in the complaint regarding photo of the alleged person who made the purchase of Rs.29,000/- was sent to the complainant by the Credit card processing centre, but had only provided copy of transactions slip. It was admitted that a sum of Rs.33,623/- was debited from the complainant's account as per rules and terms and conditions of the bank which were duly agreed by him. The said amount was debited from his account after receipt of directions from the credit card department. It was further submitted that from the date of transaction i.e. 18.11.2012 till the deduction of Rs.33,623/-, the complainant did not approach OPs No.1-3. It would be necessary to mention that beside the above said purchase of Rs.29,000/- on the same day complainant had also purchased the item of Rs.113/- through his credit card and this fact was concealed by him from the District Forum. As per application form given by the complainant at the time of issuance of the credit card he authorized Punjab National Bank to transfer the money from his account to clear the outstanding amount towards the credit card amount and further gave an undertaking that he shall be responsible for any transaction when any transaction be made by misusing the credit card. He had signed this declaration during his job tenure while working as Deputy Manager in the bank and being an employee of the bank he was well aware of all the terms conditions of the credit card facility. It was not clear why complainant lodged DDR after six-seven months. It was submitted that OP No.1. had rightly deducted the amount from the account of the complainant as per rules and regulations, as such it did not commit any deficiency in service. It was submitted that all the representations given by the complainant to higher authorities of PNB were duly replied by the OPs and denied other allegations taken up in the complaint and prayed that complaint be dismissed with costs.
4. District Forum allowed the parties to lead evidence in support of their averments.
5. Complainant tendered in evidence his affidavit Ex.17 alongwith documents Ex.C-1 to Ex.C-16 and closed the evidence. On the other hand OPs tendered into evidence affidavit of V.K.Sexena, Manager, PNB Ex.OP-1, alongiwth documents Ex.OP-2 to Ex.OP-4, and closed the evidence.
6. The District Forum heard the arguments of counsel for the parties and perused the record placed on the file and allowed the complaint of the complainant, as referred above.
7. Aggrieved with the impugned order, OPs have filed the present appeal in this Commission. We have heard the arguments of counsel for the parties and have perused the record of the District Forum.
8. The counsel for the OPs argued that District Forum has erred in deciding the complaint and reached to a wrong conclusion. He further argued that complainant being an employee of the bank had availed the facility of credit card in staff category of the bank. The complainant had filled up the credit card application after going through the said form and signed the application form and accepted all the terms and conditions as mentioned in the application form. It was agreed by him that he shall be responsible for any transactions usage of credit card made through ATM and other transactions from merchant establishment by him or even by anyone else by way of misuse or use permitted by him. The Counsel argued that complainant was primarily the cardholder and he would be liable for all transactions made through his credit card. He being an employee of the Punjab National Bank gave his irrevocable authority to the PNB for recovery of any outstanding dues, in case of default from his monthly salary. He further argued that complainant did not approach the police immediately but lodged a DDR after lapse of more than six months which clearly indicates that he had a malafide intention to cheat the bank. He further submitted that District Forum failed to appreciate the evidence placed on record that transactions took place with physical use of the credit card at the merchant establishment and was not conducted through online, meaning thereby that complainant was himself present when his credit card was used at the merchant establishment on 18.11.2012 i.e. date of transaction. He further argued that the complainant failed to prove his presence at Maler Kolta on 18.11.2012. He argued that even if the credit card was unauthorizedly used by any person as per version of the complainant, it was the duty of the complainant to approach the police with regard to the fraud committed upon him. But in the present case complainant filed DDR after six months from the date of incident. Counsel for the OPs submitted that District Forum came to a wrong conclusion that the complainant lodged his complaint with credit card department the onus to investigate the whole matter shifted from the shoulders of the complainant to that on the OPs. He further argued that no photograph of the person, who made the transaction was ever sent to the complainant by the bank. He argued that the photograph which was appended on the record was a passport size photo and it cannot be taken from a POS point and the disputed transaction was not a transaction of ATM cabin. But the said transaction took place at a Mall in Gurgoan and the question of photo being clicked at the mall does not arise. He further argued that credit card of the complainant was twice used on 18.11.2012 firstly at 19:49:04 for transaction of Rs.29,000/- and thereafter at 20:11:46 for transaction of Rs.113/- and these transactions were not taken into consideration by the District Forum while deciding the complaint and wrongly allowed the complaint.
9. On the other hand counsel for the respondent/complainant argued that incident took place on 18.11.2012 the complainant being an employee of the bank took up the matter with credit card call centre on 18.11.2012 itself when he received the transaction message on his mobile number. He further submitted that complainant being an employee was required to take station leave by leaving the office from where he was posted. On the date of incident i.e. 18.11.2012, he was posted at Dhuri, however no proper proof was given by the Punjab National Bank that he was ever given station leave to leave his station of posting any charge sheet was issued to him by the bank for leaving his station without proper sanction of station leave application from his controlling/Regional office. He further submitted that the entire record of the complaint lodged with higher authorities by him was by way of e-mails and representations which were appended in the District Forum record Ex.C-4, Ex.C-5, Ex.C-9 and many other e-mails being undertaken by the complainant with his higher authorities. He made a reference to an e-mail which he had sent in response to emails received from credit card division of PNB dated 25.11.2014. In this e-mail he had referred back to them that he had sent the entire correspondence and also submitted a copy of DDR/FIR to Punjab National Bank for enabling them to file the insurance claim with the insurance company. He argued that bank did not file any insurance claim for the fraudulent transaction in time. Since, it failed to get the insurance cover then only OPs debited an amount of Rs.33,623/- from his account after his retirement. He submitted that bank did not debit the amount of transaction as per their averments and as per the arguments of counsel for the OPs that complainant had given irrevocable letter of authority to debit the amount of transaction undertaken through his credit card immediately. He argued that what prevented them not to debit the amount in his account in the month of December 2012 or January 2013 and made debit of the said amount of Rs.33,623/- when he got retired from bank services i.e. on 26.06.2014. He further argued that bank had taken stand that no transaction slip was there with the bank. He argued that only one slip was appended by the bank Ex.OP-4. From the said exhibit sign showing the transactions undertaken by swipe of some card number having last digits as 9170 does not tally with signatures of the complainant on Ex.OP-2. He further argued that signatures on transactions slip for Rs.29,000/- and the signatures on transactions slip of Rs.113/- does not tally with the signatures of the complainant as affixed on the credit card application. He argued that without mentioning the full details of credit card number on the transaction slip, it would be very difficult to corroborate the version of the OPs that said transactions were undertaken by the complainant himself by using his credit card, on 18.11.2012.
10. From perusal of credit card transaction no credit card number was given except only 4 digits number 9170 was shown without mentioning the entire card number. Thus, any transaction slip pertaining to any card number having last 4 digits showing 9170 as per the arguments put forth by the OPs can be debited to the account of the complainant. Thus, suspicion of the genuineness of the transaction arises whereas the Ops bank has taken a stand assumed that last 4 digits pertaining to any card being 9170 will give OPs bank a right to debit any amount from the account of the complainant. Counsel for the complainant argued that any charge slip having last 4 digits written as 9170 signed by ABCD would then provide a power to bank to debit the amount of any charge slip from complainant’s account.
11. In order to determine the controversy in hand we find that complainant was having credit card No.417890000389170. From his statement of account Ex.OP-3 we find that transaction of Rs.29,000/- undertaken at in Bharat Retail Pvt. Ltd, Gurgoan was made on 18.11.2012 and the same was posted in the account of the bank on 20.11.2012, even though the caution notice was received by the bank from the complainant on 18.11.2012 on its toll free number then on 19.11.2012. We find that an entry of Rs.113/-, made on 18.11.2012 was debited in the credit card of the complainant on 19.11.2012 in favour of health care Gurgaon. We failed to understand that transactions which had taken subsequent to the transaction of Rs.29,000/- was debited by the bank on 19.11.2012 and the amount of Rs.29,000/- was shown debited on 20.11.2012. Even though the credit card facility was terminated as admitted by the bank in their written reply filed before the District Forum. This type of casual approach resulted in parting away the wrong debit of Rs.29,000/- pertaining to some odd credit card having last digit as 9170 being debited in the account of the Head Office pertaining to complainant on 20.11.2012 after the credit card facility under his credit card was cancelled by the bank as admitted by them. We have perused Ex.OP-4, ExOP-2, Ex.C-6. Signatures on Ex.C-6 and that on Ex.OP-2 and Ex.OP-4 do not tally with each other. We have also perused Ex.C-6 and Ex.OP-3, in Ex.C-6 last 4 digits are shown as 9170 and in Ex.OP-3 it is being read as 9120. We have also perused the e-mails placed on record, vide Ex.C-15 dated 17.12.2014 addressed to the complainant issued by Chief Manager, credit Card Division, Head Office, New Delhi whereby the complainant was instructed to lodge an FIR with police for the unauthorized debit undertaken from his credit card and sent a copy of the same to PNB Head Office. In the said e-mail they have further said that head office did not receive the copy of the FIR and transactions of credit card cannot be treated as unauthorized. We have perused Ex.C-13 sent by the complainant to one Sh.Parveen Kumar Bharti, Sr.Manager(IT), Credit Card Division, New Delhi, wherein he had sought certain information regarding any action taken after 19.11.2012 pertaining to unauthorized debit transaction undertaken by somebody on 18.11.2012. We have also perused two e-mails addressed by the bank to the complainant sent by Parveen Kumar Bharti, Sr. Manager sent on 19.11.2014 and 27.11.2014. From perusal of these emails it is quite evident that bank was trying to lodge an insurance claim and through these e-mails complainant was directed to send a copy of FIR. In one of these e-mails it was mentioned that in order to lodge an insurance claim copy of DDR sent by the complainant will not be treated as an FIR by the insurance authorities. Another email sent by Parveen Kumar, Sr.Manager(IT) to the complainant after receipt of transactions dispute from states that the bank had taken up the matter with visa authorities on 24.12.2012 pertaining to transaction of Rs.29,000/- on 18.11.2012. The same was declined vide, visa e-mail dated 30.01.2013. It is evident that complainant had taken up his case with the higher authorities of the bank continuously and a wrong reply was filed in the District Forum by OPs that complainant had not taken up his issue with higher authorities for a long period.
12. In order to decided the controversy whether the bank can debit an amount of Rs.33,623/- after expiry of one and a half year from the date of occurrence when the claim was rejected by visa on 30.01.2013. We have gone through the RBI circulars addressed to the Chairman/Chief Executive Officers of all commercial banks in India, vide RBI Circular No.RBI/2010-11/449, DPSS.CO.PD 2224/02.14.003/2010-2011 dated March 29, 2011 and circular No.RBI/2011-12/145, DPSS.PD.CO.No.223/02.14.003/2011-2012 dated August 04, 2011. From the perusal of these circulars it is quite clear that when any dispute is raised by a consumer regarding POS transactions then the banks are required to investigate the entire transactions. We do not find any investigation conducted by the bank at its own level except writing to visa, who rejected the banks objection on 30.01.2013. We are of the considered view that since bank had failed to get the insurance claim for the act of fraudulent transaction undertaken by third party, bank being in dominate position debited amount from the account of the complainant even when the said entry was disputed. We have also perused 4 digits of two charge slips as appended on the record having two different numbers in Ex.C-6 it shows as 9170 and in Ex.OP-3 it shows as 9120. Thus, stand taken by the bank that these charge slips pertains to the credit card of the complainant is not maintainable. We do not agree with the arguments raised by the counsel for the OPs that usually only last digits of the card will be mentioned on the charge slips. We find that when complainant has lodged his complaint for cancelling the credit card limit to the bank on 18.11.2012 and thereafter on 19.11.2012 the bank had no authority to debit any amount from the account when the credit facility was cancelled. As such any wrong debit made by the bank on its own cannot be allowed to be debited from the account of the complainant, that too after a long delay of one hand a half year. The bank did not compare the signatures on the charge slips when the signatures on both the charge slips are different from the signatures of the complainant on the credit card application.
13. In view of the above observations we do not find any merit in the appeal and the same is hereby dismissed. The order of the District Forum is a well reasoned order and the same is affirmed.
14. The appellants had deposited a sum of Rs.25,000/- at the time of filing this appeal in the commission and thereafter another sum of Rs.14,750/- was deposited as per the directions of this Commission. The registry is hereby directed to remit Rs.25,000/- + Rs.14,750/- alongwith interest, if any accrued thereon, in favour of the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days from the date of this order. .
15. Arguments in this appeal were heard on 11.08.2016 and the order was reserved. Now, the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Jasbir Singh Gill)
Presiding Member
(Harcharan Singh Guram)
Member
August 22, 2016
RK 2
