DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 04th day of April2019
Present : Smt.Shiny.P.R. President
: Sri.V.P.Anantha Narayanan, Member Date of filing: 23/01/2015
CC/13/2015
M.Georgekutty (Aged 64 years),
S/o (Late) G.Mathai, - Complainant
H.No.537/16, Sakthi Nagar,
Kanjikode West (PO), Palakkad
(By Adv.K.Dhananjayan)
Vs
1. Authorised signatory,
SBI Cards Payments Services Ltd,
DLF Infinity Towers, Tower C, 12th floor,
Block 2 Building 3 DLF Cyber City, Gorgaon, 122 002.
2. Customer Care,
State Bank Bhavan, - Opposite parties
Madama Cama Road,
Mumbai, Maharshtra.
(By Advs.G.Ananthakrishnan, K.B.Priya & A.K.Philip)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
The facts if the complaint are detailed below.
The Complainant is a credit card holder with number 431-75-75035-237735 with chip and credit limit of Rs.89,000/-. He was operating the card for the last 12 years without any difficulties. The complainant pleads that he has been operating with chip and he had never used OTP nor demanded OTP for his use; since chip is provided with credit card OTP is not necessary for the transactions. But on 14.10.2014 and 16.10.2014 two amounts were stated to be withdrawn by the complainant as per the statements dated.09.11.2014 for payment to take N Gifts – Pay TM Mumbai amounting to Rs.9,888/- each. This was said to be withdrawn by an OTP within ten minutes which the complainant never requested nor demanded. A request for use of an OTP number 671444 by SMS message on 14.10.2014 at 1.03 pm in the phone which was rejected by the complainant. According to the complainant by using the OTP the amount was withdrawn on 14.10.2014 without the knowledge of the complainant. Again on 16.10.2014 there was an offer of another OTP number 950354 by way of SMS at 4.19 pm and the amount was withdrawn by using this password on 16.10.2014. The password was given by State Bank of India by SMS message and within ten minutes from the message the party stated above has withdrawn the amount; according to the complainant, with the knowledge of the bank that this fraud was committed. The complainant has no business with takers N Gifts – PayTM; or he has never requested the bank to pay these amounts to them, also on 20.11.2014 an amount of Rs.1,999/- was withdrawn for payment to one ISHITA industries – EBS Mumbai and this amount is also withdrawn without the request of the complainant and the complainant has no business with ISHITA industries and no payment is to be made to them. According to the complainant, he had earlier closed his account after paying the entire balance of Rs.1,601/- outstanding in the account of the complainant on 21.11.2014 and he has not requested the bank to make payment to them. Hence these amounts are paid by the bank without the authority or direction of the complainant, so that the amounts are to be paid back to him because of suspected fraud happening in the banks office. Although the complainant complained to the grievance cell and customer care centre about this by e-mail, but he got a reply stating that the transactions are in order. By all these the complainant has to suffer much mental agony and he asked the bank to block all these transactions on the credit card facility on 22.11.2014 which is confirmed by State Bank of India. Afterwards he paid Rs.1,700/- towards the maintenance charge under protest after receipt of the statement demanding this amount. Complainant pleads that all these frauds began by a phone call said to be from State Bank of India stating that the complainant was awarded points said to be redeemed by sending gifts to the complainant; complainant has not responded to this call nor sent SMS accepting this and he has not received gifts but these amounts were withdrawn from his account. The complainant pleads that the opposite party may be directed to pay back the amounts which are paid without the instructions of the complainant; the opposite party may also be directed to pay Rs.50,000/- towards mental agony suffered by the complainant. The cause of action arose on 14.10.2014, 16.10.2014 & 20.11.2014 when the amounts were paid by the bank without the instructions of the complainant and on 21.11.2014 and 28.12.2014 when a complaint was preferred to grievance cell and on 03.01.2015 when he got a reply by e-mail. Complainant prays to this Forum to direct the opposite parties to reverse the payment of Rs.27,775/- made by them without the instructions of the complainant with interest, to pay Rs.50,000/- towards mental agony suffered by him and also to pay Rs.1,000/- towards expenses of this complaint.
In the version filed by the opposite parties counsel on behalf of both opposite parties, he contends that the complaint is not maintainable either on facts or in law and it is liable to be dismissed. According to these opposite parties, complainant has not come with clean hands and presented a distorted and incorrect version of the facts before this Forum. They also contend that no cause of action arose in favour of the complainant against the opposite parties to file the present complaint. Hence the complaint being an abuse of the process of law should be dismissed with exemplary cost. Also no primafacie case has been made out against the opposite parties and complaint is filed by the complainant with oblique motives to force the opposite parties to accept the illegal demand of the complainant. The complaint also lacks the ingredients of a valid contract as per section 2 (c) of the Consumer Protection Act 1986 and on this ground also the complaint should be dismissed. Further, this Forum does not have territorial jurisdiction to try and entertain the present complaint. Also, the 2nd opposite party is a separate legal entity and the grievance of the complainant relates to SBI cards only which is a separate legal entity from State Bank of India. Therefore complaint should be dismissed and the 2nd opposite party may be deleted from the array of the opposite parties. These opposite parties also contend that complainant is a card holder of the opposite parties and the transactions made by the complainant were not fraudulent transactions as alleged, but they were valid transactions. Complainant was advised to make payment of outstanding amount, but he has not made the payment so far and avoids the payment on one pretext or another. The opposite parties also contend that the disputed transactions are secured online mode and for performing these online transactions OTP is required which was generated to customer mobile number – 91 9447621578 and delivered. These opposite parties made internal investigation into the matter and found that the disputed transactions were valid transactions which was duly informed to the complainant and therefore these opposite parties contend that the alleged transactions were not fraudulent transactions. That the complainant has made any payment without the said credit card is wrong and denied by these opposite parties. Further, according to these oppose parties, complainant has been duly communicated that the transactions are valid because they have been performed in a secure electronic commerce environment and have been validated by card CVV and date of birth over the internet. Hence these opposite parties contend that complainant’s prayer is false, frivolous, fictitious, baseless and hence denied by them. They also pray to the Hon’ble Forum to dismiss the complaint with exemplary costs.
Complainant filed chief affidavit and the opposite parties also filed their chief affidavits. Complainant also filed additional proof affidavit. Complainant was cross examined as PW1 and Exts.A1 to A8 were marked from the side of the complainant, and Exts.B1 to B4 were marked from the side of the opposite parties. Opposite party was cross examined as DW1. Witness was cross examined as CW1. Both the complainant and the opposite parties were heard.
The following issues arise in this case for consideration by this Forum.
- Whether there is any deficiency in service on the part of opposite parties?
- If so, the relief and cost which the complainant is entitled for ?
Issues 1 & 2 in detail
The complainant has filed Exts.A1 to A8 to support his arguments. Ext.A1 is a Visa card with chip. Ext.A2 is a statement dated.09/11/2014 issued by the opposite parties to the complainant which shows, the credit limit and cash limit and the disputed transactions detail on 14/10/2014 and 16/10/2014. Ext.A3 is a statement dated.09/12/2014 issued to the complainant by the opposite parties which shows credit limit, cash limit and details of the disputed transactions on 20/11/2014. Ext.A4 series are copies of complaints dated.21/11/2014 and 28/12/2014 sent to the opposite parties by the complainant asking them to confirm the balance as in order and informing them that the complainant is sending the minimum amount of Rs.1,700/- to the opposite parties under protest. Ext.A5 is a copy of reply dated.03/01/2015 issued by the opposite parties to the complainant informing him about the conduct of an investigation into his complaint; by this letter the opposite parties also confirm that the disputed transactions are valid transactions because they have been performed in a Secure Electronic Commerce Environment and have been validated by complainant’s credit card CVV and date of birth over the internet and the liability for these transaction rests with the card holder complainant. Ext.A6 is a statement dated.09/01/2015 issued by the opposite parties to the complainant which shows credit limit, cash limit and details of the disputed transaction on 29/12/2014. Ext.A7 is a statement dated.09/06/2015 issued by the opposite parties to the complainant which shows credit limit, cash limit, available credit limit as blocked, available cash limit as blocked, interest due etc... Ext.A8 is a statement dated.09/07/2015 issued by the opposite parties to the complainant which shows available credit and cash limits are blocked, total outstanding amount as Rs.41,455.48/-, reward points from the card issue date as 1,180.
The opposite parties have submitted Ext.B1 to B4 to prove their contentions. Ext.B1 is SBI card monthly statement (Account summary) dated.09/10/2014 in respect of the complainant on his card number: 0004317575035237735 which shows credit limit including cash, available credit including cash as Rs.89,000/- and available credit including cash as Rs.61,004.13/-, total amount due, payment due date and transaction details for the complainant on his card number: 4317575035237735. Ext.B2 is SBI card monthly statement (Account summary) dated.09/11/2014 in respect of the complainant showing credit limit, available credit and cash limits, payment due date, total amount due, transaction details for the complainant on his card number 4317575035237735. Ext.B3 is SBI card monthly statement (Account summary) dated.09/12/2014 in respect of the complainant which shows credit limit, available credit and cash limits, available cash, payment due date, total amount due and details of transaction for the complainant on his card number 4317575035237735. Ext.B4 is Transaction SMS alert send to card holder registered mobile on different dates which shows publish date, mobile number, delivery status, delivery time, sender message tag, operator, circle etc.
We have perused the affidavits of both the parties and other documentary evidences submitted in this case before this Forum and understood that by using the OTP (One Time Password) total amount of Rs.19,998/- were withdrawn from complainant’s bank account on 14/10/2014 & 16/10/2014 and again on 20/11/2014 Rs.7,999/- was withdrawn from his bank account for making payment to ISHITA industries – EBS, Mumbai. We also understand that complainant has not been seen to have requested or given instructions to his bank to make these payments. It is also observed that complainant’s account has been debited by the bank with Rs.27,775/- (Rs.9,888 + Rs.9,888 + Rs.7,999) towards the payments made by the bank on the above disputed transactions without complainant’s instructions and request. We view that the opposite parties are equally responsible to give constantly instructions to their customers using credit cards and make them fully educated about the happening of frauds misusing the credit cards. In this case we also view that the bank also should have taken proper care before making payments on the above disputed transactions; had the complainant being given proper directions about the chances of frauds happening in the case of transactions involving credit cards by the credit card issuing bank and the opposite parties, complainant could have been saved from losing Rs.27,775/- in his account. We also observe that the opposite parties are not seen to have given police complaint about this fraud or instructed the complainant to do so. Again the opposite parties are not seen to have given serious care about the two complaint letters sent to them by the complainant about the happening of loss involving his credit card. All these clearly prove that the opposite parties have committed serious deficiency in service towards the complainant who is an aged senior citizen customer of the bank and the opposite parties.
Hence we decide to partly allow the complaint.
We order the 1st & 2nd opposite parties jointly and severally to reverse the debit of Rs.27,775/- (Rupees twenty seven thousand seven hundred and seventy five only) made in complainant’s bank account in respect of payments made on the disputed transactions on 14/10/2014, 16/10/2014 and 20/11/2014 and pay to the complainant interest at 8% p.a on Rs.27,775/- (Rupees twenty seven thousand seven hundred and seventy five only) from 20/11/2014 till realization; the 1st and 2nd opposite parties are also ordered jointly and severally to be liable for payment of compensation of Rs.5,000/- (Rupees five thousand only) to the complainant towards mental agony suffered by him together with Rs.3,000/- (Rupees three thousand only) incurred by the complainant by way of cost of this proceedings.
This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to 9% interest p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 04th day of April, 2019.
Sd/-
Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Visa card (SBI card) with chip
Ext.A2 - statement dated.09/11/2014 issued by the opposite parties to the complainant
which shows, the credit limit and cash limit and the disputed transactions
details on 14/10/2014 & 16/10/2014
Ext.A3 - statement dated.09/12/2014 issued to the complainant by the opposite parties
which shows credit limit, cash limit and details of the disputed transactions on
20/11/2014
Ext.A4 series - copies of complaints dated.21/11/2014 and 28/12/2014 sent to the
opposite parties by the complainant by email
Ext.A5 - copy of reply dated.03/01/2015 sent by the opposite parties to the
complainant by email
Ext.A6 - statement dated.09/01/2015 issued by the opposite parties to the complainant
which shows credit limit, cash limit and details of disputed transaction on
29/12/2014
Ext.A7 - statement dated.09/06/2015 issued by the opposite parties to the complainant
which shows credit limit, cash limit, available credit limit as blocked, available
cash limit as blocked, interest due, transaction details
Ext.A8 - statement dated.09/07/2015 issued by the opposite parties to the complainant
Exhibits marked on the side of Opposite parties
Ext.B1 - SBI card monthly statement (account summary) dated.09.10.2014
Ext.B2 - SBI card monthly statement (account summary) dated.09.11.2014
Ext.B3 - SBI card monthly statement (account summary) dated.09.12.2014
Ext.B4 - Transaction SMS alert sent to Card Holder Registered Mobile on different dates
Witness examined on the side of complainant
PW1 - M.Georgekutty
Witness examined on the side of opposite parties
DW1 - Vipin Thomas
Commission Witness
CW1 - Usha Jayachandran
Cost
Rs. 3,000/-
