PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is a Private Limited Company incorporated under the Companies Act, 1956, having one of its boutiques at Shop No.6 and 6A, Tirupati Apartment, Opposite Mahalaxmi Temple, Mumbai-26. It is case of the Complainant that on 20/11/08, two individuals came to the Complainant boutiques, one of whom introduced himself as Iqbal Inamdar and purchased one Rolex watch, for Rs.5,88,000/-. The said Iqbal Inamdar made payment for the watches through an ‘American Express Card Credit Card’ bearing no.3770 415255 35000. The validity period of the card was till July, 2011. The customer informed the sales representative at Complainant’s shop that the credit card’s password is protected and insisted for an off-line transaction. The said customer coordinated with Respondent’s [American Express (‘AMEX’)] officials for offline transaction and performed the transaction offline by punching the password on the swipe machine. The password was accepted and the slip for the amount of Rs.5,88,000/- was generated by the said machine. The sales representative of Complainant had also called up the Respondent’s call centre and obtained confirmation about the clearance of the transaction. The transaction was carried out without any difficulty. Even at the end of the day, the settlement was made by Complainant without any difficulty. True copy of the tax invoice of the Rolex watch and the slip (receipt) for the amount of Rs.5,88,000/- is marked and annexed herewith complaint as Annexure-A-2 (colly).
2) It is submitted that the Complainant received letter dtd.20/11/08 from Opposite Party acknowledging the fact that they have received a valid charge of Rs.5,88,000/-. Thereafter employees of the Complainant approached the call centre of Respondent Bank regarding the disbursement of the above mentioned amount. However, at this stage for the first time the Complainant was directed to connect call centre of ICICI Bank for further enquires in the matter. After making enquiry, the Complainant was informed that the transaction was declined on the ICICI system/gateway as the credit card, through which the above mentioned transaction was carried out, had been allegedly been reported missing in their records since September, 2008 and the user had blocked the said credit card. Upon receiving of such information the Complainant had tried to call AMEX call centre several times but at all times AMEX call centre simply refused to give information regarding the said transaction. In view of above situation, the Complainant was constrained to lodge an FIR with Gamadevi Police Station, Mumbai.
3) It is submitted that despite the fact that the said transaction was accepted by the Opposite Party bank and was confirmed by its call centre employees and its letter dtd.20/11/08 the Opposite Party is declining to make payment of Rs.5,88,000/- which is legally dues and payable to the Complainant.
4) According to the Complainant, in case the user had blocked the card then Opposite Party should have updated its data bank and should not have given a go-ahead to the said transaction, if the Card was reported to be lost in September, 2008 itself. It is submitted that on Opposite Party’s clearance and confirmation the Complainant had handed over the delivery of watch. Therefore, now the Complainant cannot be made to suffer on account of negligence of the Opposite Parties which amounts to deficiency in service.
5) It is submitted that in this process the Complainant was unnecessarily made to run from pillar to post and have received only false assurances in the name of quality services. Thus, Opposite Party has committed unfair trade practice and it has caused financial loss, undue to hardship and harassment to the Complainant. Therefore, the Complainant on 07/02/09 sent legal notice to the Opposite Party and called upon Opposite Party Bank to make payment of Rs.5,88,000/- within 15 days of receipt of the said notice. The Opposite Party did not comply with the notice. Therefore, Complainant has filed this complaint. The Complainant has prayed to direct Opposite Parties to pay an amount of Rs.5,88,000/- with interest @ 24 % p.a. to the Complainant. The Complainant has also requested to award un-liquidated damages considering the gravity of lapses committed by the Opposite Party and its officials. The Complainant has also prayed for cost of this litigation.
6) Alongwith complaint, the Complainant has filed affidavit of their authorized representative Mr. Floyed Pincent Coutinho, Certified true copy of registration dtd.02/04/09 passed by the Complainant Company, tax invoice dtd.20/11/2008 in the name of Mr. Iqubal Inamdar, Rollex watch of Rs.5,88,000/-, notice sent to Opposite Party, etc.
7) Opposite Parties have filed written statement and thereby resisted claim of the Complainant. It is submitted that pursuant to the Global sale of American Express Bank Ltd. to Standard Chartered PLC, with effect from close of business dtd.29/02/08, American Express Consumer Card, Global Commercial Card, Merchant Services International and Travelers Cheques Distribution businesses which were being conducted by American Express Bank Ltd., in India are now being operated by American Express Banking Corporation. Therefore, it is necessary to substitute in name of American Express Banking Corporation in place of American Bank.
8) It is submitted that the Complainant had entered into an agreement with Opposite Party in Feb., 2008 for accepting Credit Cards of Opposite Party customers and has installed in its premises EDC Terminal machines/ or other electronic authorization equipment, in order to accept and enter into credit cards transactions with intending customers/users of credit cards, as per terms and condition for American Express Card Acceptance by merchant Establishment.
9) Opposite Party has denied each and every allegations made against them in the complaint and submitted that Complainant is not a consumer as defined under Sec.2(d) and hence, not protected under the Consumer Protection Ac, 1986. Since Complainant is a company and is carrying out commercial transition for generating huge profits, the Complainant is not a consumer under the Consumer Protection Act, therefore, complaint deserves to be dismissed with cost.
10) It is submitted that there is no deficiency in service on the part of Opposite Party. This Forum has no territorial jurisdiction to try and entertain this complaint, in view of agreement between the parties took place at in the State of Delhi. It is submitted that in accordance with the prescribed procedure, the Complainant swiped the card on EDC machine 4 times. The Opposite Party bank declined all the 4 authorization request in the circumstances, it was obligatory on the part of Complainant to try to obtain approval code by telephoning designated the authorization centre before finalizing charge. The Complainant acted wrongfully and in gross violation of the agreed terms and conditions of the contract. The card in question is an ICICI GNS. The transaction was referred to ICICI for affirmation who reported that the card was reported lost by the Card Member and the Complainant Establishment debited card without obtaining approval code. No authorization was taken, the payment to the Complainant towards the said submission was held back. The reasons have been explained to the Complainant on 25/11/08 and 02/12/08. According to the Opposite Party allegation made in the complaint are false and baseless and complaint deserves to be dismissed with cost.
11) The Complainant has filed rejoinder and thereby denied the allegation made in the written statement. Thereafter the Complainant filed an application for amendment of complaint. Application was allowed and Complainant carried out necessary amendment in the title of the complaint.
12) The Complainant has filed written argument. Heard Ld.Advocate Mr.Bindu Jain i.b. Hemant Sahai Associates, for the Complainant and Ld.Advocate Mr. Husain, i.b. M/s. M.V. Kini & Co. for the Opposite Party. In the written statement as well as in the written argument Opposite Parties have raised contention that Complainant is a Company, registered under the Companies Act and carrying on commercial transactions to earn profits and the Complainant had availed services of the Opposite Party for commercial purpose and therefore, Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 ?
Findings : No
Point No.2 : What order ?
Findings : As per final order.
Reasons :-
Point Nos.1 & 2 :- In the written statement Opposite Party has raised specific contention that the Complainant is a Company carrying commercial transactions for generating huge profits. The Complainant had obtained their services for commercial purpose and therefore, Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. In the complaint itself the Complainant has averred that the Complainant is a Private Limited Company incorporated under the Companies Act, 1956 and is carrying on business and having of its boutique at Shop No.6 and 6A, Tirupati Apartment, Opposite Mahalaxmi Temple, Mumbai-26. It is further sated that on 20/11/08, two individuals came to the Complainant boutiques, one of whom introduced himself as Iqbal Inamdar and purchased one Rolex watch, total amounting to Rs.5,88,000/-. The said Iqbal Inamdar made payment for the watches through an ‘American Express Card Credit Card’ bearing no.3770 415255 35000. Validity period of the card was till July, 2011. It is alleged that the said customer coordinated with Opposite Party’s officials for offline transaction and performed offline transaction by punching the password on the swipe machine. The password was accepted and the slip for the amount of Rs.5,88,000/- was generated by the said machine. The sales representative of Complainant had also called up the Opposite Party’s call centre and obtained confirmation about the clearance of the transaction. The said transaction was carried out without any difficulty. Thereafter employees of the Complainant approached the call centre of Opposite Party’s Bank regarding the disbursement of the above mentioned amount. For the first time the Complainant was directed to contact call centre of ICICI Bank for further enquires in the matter. On enquiry, it was informed that the transaction was declined on the ICICI system/gateway as the credit card, through which the above mentioned transaction was carried out, had been reported missing in their records since September, 2008 and the user had blocked the said credit card. When the Complainant tried to contact AMEX call centre, AMEX call centre simply refused to give information regarding the said transaction and therefore, the Complainant was constrained to lodge an FIR with Gamadevi Police Station, Mumbai. The Complainant has claimed to recovery of aforesaid amount of Rs.5,88,000/- with interest from Opposite Party.
The Opposite Party in their written statement para no.2 have stated that the Complainant have entered into an agreement with Opposite Party in Feb., 2008 for accepting Credit Cards of the Opposite Party customers and has installed in his premises EDC Terminal machines/ or other electronic authorization equipment, in order to accept and enter into credit cards transactions with intending customers/users credit card. The Complainant has not denied aforesaid averment.
Ld.Advocate Mr. Bindu Jain for the Complainant has submitted that even though the Complainant is a Company registered under the Companies Act, 1956, present complaint is maintainable as business which is carrying on is the only source of livelihood. Ld.Advocate for the Opposite Party has pointed out that the Complainant is a Company which is carrying on commercial transaction for generating huge profits. Nowhere in the complaint is it pleaded that the business is the only source of livelihood of the Complainant. We do not find substance in the contention raised by the Ld.Advocate of the Complainant.
By the Amendment Act of Sec.2(d) of the Consumer Protection Act, was amended by Act, 62 of 2002 w.e.f.15/03/2003, by adding the words “but does not include a person who avails of such services for any commercial purpose”. The Hon’ble Supreme Court in the matter of Economic Transport Organization V/s. M/s. Charan Spinning Mills (P) Ltd. and other reported in 2010(2)(C.P.R.)181SC have held that after aforesaid amendment, if services had been availed for commercial purpose then the person availing the service will not be a consumer and consequently compliant would not be maintainable in such cases.
As mentioned above, it is clear from the fact of this case that the Complainant had availed services of the Opposite Party for commercial transaction in the year 2008 i.e. after the amendment of Sec.2(1)(d)(ii) and therefore, the Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, we answer point no.1 in the negative.
Point No.2 : For the reasons discussed above, the Complainant is not a consumer under the Consumer Protection Act, 1986 and therefore, present complaint is not maintainable before this Consumer Forum, as such, complaint deserves to be dismissed. Hence, we answer point no.2 accordingly and pass following order -
O R D E R
i.Complaint No.125/2009 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
