Order-20.
Date-05/02/2018.
AUTHORED BY. RABIDEB MUKHOPADHYAYMEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that OP1 Bank issued a credit card bearing no.4111000000684393 to the complainant in the month of November, 2013 and the complainant used the same and never failed to pay off the same within due dates. Sometimes in April, 2015, the complainant visited Mumbai for Business purpose and after returning on 8th April, 2015 when the complainant switched on his mobile phone received certain SMSs of some fraudulent transactions charged to his credit card A/c. These transactions are Rs.20,946.24, Rs.24256.68, Rs.14,297.53, Rs.25,563.65, Rs.499.00. Complainant immediately contacted the customer care of the OP Bank and lodged a complaint against such fraudulent transactions. Upon receiving such complaint,OP Bank blocked the credit card and issued a new credit card to the complainant bearing No.4111460001622871.
Later, upon receiving the credit card statements for the period from April, 2015 to June, 2015, he found all those fraudulent transaction amounts reverted back except Rs.14,297.53. Instead of refunding the full amount of Rs.14, 297.53 OP Bank refunded only 13,311.10 and deducted Rs. 986.43 and till date it is not credited to the complainant’s account. Apart from the said deductions, another amount of Rs.24,256.68 relating to one of the fraudulent transactions done through the complainant’s credit card remained due to be credited by the OP Bank. Complainant on several occasions communicated to the OP Bank to credit back the amount of Rs.25,243.11 (i.e. Rs.24,2565.68 + Rs.986.43) but except oral assurance OP Bank has done nothing till date and that amount kept on appearing in his new Credit card statement as due to be paid along with interest accrued thereon. Therefore, the complainant stopped using the credit card on and from 19-02-2016.
Lastly, on 6th April, 2016 a recovery agent from OP Bank appeared with the statement for the period of 19-02-2016 to 18-03-2016 and handed over a credit card statement of Rs.92, 762.96 which is the amount of fraudulent transaction of 8th April, 2015 along with accrued interest. The recovery agent took an amount of Rs.9,000/- from the family members of the complainant upon making certain mis-representation. Thereafter, on 5th October, 20176 the complainant received a demand notice from an Advocate of OP Bank asking to pay Rs.1, 06,649.69. Again, the complainant on 4th March, 2017 sent a reminder for crediting such wrongful transactions and lastly on March 10, 2017 sent a legal notice asking them to credit the amounts along with Rs.9,000/- and finally complainant filed this case before this Forum praying for relief for such deficiency of service. Hence, the instant case.
On the other hand, OP by filing written version that in or about June, 2013 complainant approached the OP Bank for availing a credit card and OP Bank issued the same bearing no. 4111000000684393 with a credit limit of Rs.2,10,000/-. On 12-04-2015 complainant raised a dispute regarding three transactions amounting to Rs.20, 946.24, Rs.25, 563.65 and Rs.499.00 along with request for blocking the said credit card.
Subsequently, the complainant raised another dispute regarding one transaction dated 9th April 2015 amounting to Rs.24, 256.68. However, the said dispute was not raised within stipulated period of 120 days and even though the Bank processed the dispute, the concerned Merchant Acquiring Bank rejected the charge back request as the said dispute for refund/fraudulent transactions was raised after the stipulated time. Another transaction of Rs.14, 297.53 was effected from the said credit card through the
merchant namely ‘Green Smoke, 888-2241345’. The OP Bank duly paid the amount to the merchant and raised the same in the statement of the credit card. Subsequently that merchant reversed the amount unilaterally in US Dollar and the merchant reversed the amount of Rs.13311.10, calculating the same as per the rate of exchange prevailing on the date of reversal due to which a sum of Rs.986.43 was not reversed by the merchant. It is stated that the contention of the complainant that he stopped using the credit card due to non-reversal of disputed transaction is contrary to the reason mentioned in his letter dated 04-03-2017.
Moreover, as a credit card holder, the Written Version says, it is the primary duty of the cardholder to maintain safety and secrecy of PIN without which no transaction can be effected. It is the further duty of the cardholder not to share his card details along with PIN with any third person. Further the cardholder is also required to report immediately about unauthorized transaction to bank and to lodge complaint in respect of the same. However, in the present case the complainant has not lodged a single complaint though he is claiming the transaction being fraudulent. It is further denied and disputed that any recovery agent of the OP Bank has made any mis-representation to the complainant and any amount has been wrongfully deducted from the account of the complainant and further OP Bank did not receive any legal notice dated 10-03-2017 from the end of the complainant. Complainant has not also made the merchants of the disputed transactions as a party in the present case and as such the present complaint is bad for non-joinder of necessary parties, as such OP Bank has prayed for dismissal of the instant application with costs.
Points for Decision
- Whether the complainant and the complaint is maintainable;
- Whether the OPs are deficient;
- Whether the complainant deserves relief.
Decision with Reasons
1) We have perused the documents filed by the complainant like concerned copies of statements, letter/legal notice dated 10/3/17 filed by the complainant and copy of credit card related information in pages along with Evidence filed by both parties.
2) OPs raised the point at WV para-2 that as the complainant paid no consideration to the OPs and no service is rendered by OPs, he is not a consumer under the OPs.
It is to be considered that though the complainant did not initially pay any amount before issue of credit card (because that was not necessary in terms of provisions of the credit card), there must have been potential payments by the complainant to the OPs; otherwise, credit card business could not have thrived so fast and could not have been one of the most important piece of instruments to the bankers, for which they reach out to the common people and make them customers. All categories of finance charges and interest charged by the banker to the customers fall under this category of consideration. These are charged against the financial services rendered by the Bank. So, the customers purchase such services, else the Bank would not have rendered such services free of cost.
So, the customer (here, the complainant) is a consumer as defined u/s 2(1)(d)(ii) of the C. P. Act, 1986 and the OP/Bank is the provider of service, as defined u/s 2(1)(g) read with section 2(1)(o) of the Act.
Therefore, the case is well maintainable.
3) Complainant’s claim in his letter dated 04/03/17, in Advocate’s legal notice sent on 10/3/2017 and in complaint para-6 that he never failed to pay off bills in due time has not been categorically denied and/or controverted by OPs at W.V. Para 8. This means OPs admitted such claim. Then how does the question of back log of interest arise? And there is no denial of complainant’s claim. Lack of specific denial means indirect admission. Then question again arises how and why OP Bank charged interests.
4) At W.V. Para- 6(b) and (c) at page 2, OPs stated that the complainant approached the OP Bank for availing C/Card facilities and represented that he would repay his dues etc.
OP Bank failed to produce any such evidence that the complainant of his own approached OP Bank and represented in writing that he would repay his dues etc. and on believing such representation, OP Bank issued the credit card. We all know how credit cards are pressed to be accepted by all possible means like phone, physical meeting with potential customers and through email (anyhow accessing the mobile no. and mail no.). The C/Card Application is a formatted sheet prepared by OP Bank; customers are made of sign on the same. In reality, it is not the case that customers make queues after submitting applications for obtaining C/Card and Banks verify and believe such representation and then issue C/Card.
5) Out of 5 wrongful debits in April, 2015, the OPs credited 4 amounts i.e. Rs.25, 563.65 on 18-05-2015, Rs.499/- on 18-05-2017, Rs.19308.27 on 10-04-2016 and Rs.1638.01 on 13-06-2016. Last two credits equal to wrongful debit of Rs.20946.27 on 08-04-2015.
Credit back of such amounts means those were wrongfully debited.
6) It is the contention of the OPs that Merchants of disputed transactions as stated at W.V. Para 4 are not made parties. It is to be considered that Merchants are connected to OPs and not to the complainant. They provide service under Agreement with the OP and the complainant is not a part to such Agreement. So, the case does not suffer from non-joinder of parties.
7) As stated at W.V.para-6(f), OP Bank paid Rs.14297.53 but the Merchant reversed Rs.13311.10 for the reason best known to Merchant. OP also stated at the same WV para-6(f) that the difference of Rs.986.43 (Rs.14297.53 – Rs.13311.10) was due to difference in the conversion rate. Such diverse explanations are not acceptable and the amount of Rs.986.43 is to be reversed back to complainant.
8) At para-6(e) Page 3 of W.V. OP bank stated, claim for transactions dated 09-04-2015 for Rs.24256.68 was raised after stipulated period of 120 days. It is also said that the OP Bank processed the dispute (obviously, ignoring the late submission by complainant) but the Merchant Acquiring Bank rejected the charge Bank Request for raising the dispute after stipulated time. Here, no other question on merit of the customer request has been raised except on technical question of time limit of 120 days.
It needs to be noted that the customer has no relation with the Merchant, neither the Merchant has any endorsement in the C/Card Application and so, no obligation. Since, the OP Bank processed the dispute ignoring the stipulated time, it is presumed that OP Bank waived the stipulation of time. So, the amount should have been reversed and needs to be reversed on natural justice as the technical point of stipulated time of 120 days has been presumably waived by OP Bank.
9) It is also astonishing that OP Bank at W.V. para-9 did not admit the content of complaint Para-10 and also disputed the 5 transactions. This means blocking of old C/Card No.4111000000684393 and issue of new Credit Card No. 4111460001622871 has been denied. This is in contradiction to content of W.V. Para 6(d), Page 3, where it is admitted that the old card had been blocked and 3 transactions were reversed. OP Bank failed to keep coherence in replying the allegations of complainant.
10) W.V. Para-11 denies and disputes all allegations of compliant Para-14 to 19.
It remains the fact that the complainant has not filed any document to claim payment of Rs.9,000/- made to recovery agent but the complainant has submitted it in writing under Affidavit and OP Bank did not categorically deny (at W.V. Para 11 and Evidence Para 15) such alleged acceptance of money, though misrepresentation is denied.
If contents of complaint Para-14 is disputed, then how were the transaction amounts reversed as stated by complainant and confirmed from monthly statement of OP Bank for the period from 19/02/2015 to 18/03/2016 and in W.V. para 6(f), para-9, Para–11 (last line of page 5)? The OP Bank failed to explain with befitting evidence how the said/disputed statement reached at the hand of the complainant if the recovery agent did not visit complainant’s residence.
11) It is also averred by OP Bank at W.V Para-11 that reasons of non-reversal of Rs.25243.11 have been verbally explained to complainant. Then how are the contents of complaint para-14 disputed? At page 6 (W.V. Para-11), OP Bank admitted receiving letter dated March 4, 2017. Then how can the OP Bank contradict complaint para – 14
12) OP Bank also failed to file appropriate documentary evidence to prove that the complainant did not maintain safety and security of credit card and sharing of PIN and card details with others, as claimed by OP Bank at WV para-11. No customer does such suicidal activities against his own interest.
13) Moreover, such non-reversal of the disputed amounts of Rs 24256.68 and Rs 986.43(being the differential, unpaid balance amount) is barred from the Principle of Estoppels where other reversals were made but the disputed two amounts were not reversed on the same cause of action, particularly when the OP Bank presumably waived stipulated time and admittedly initiated processing request.
14) OP Bank failed to rise to the situation to honour the request of complainant, thereby committing deficiency in service and leading the complainant to suffer financial loss, physical harassment and mental agony. The complainant, therefore, deserves some relief.
In the circumstances of what have been critically analyzed above, we are of the considered view to pass
ORDER
That the complaint be and the same is allowed on contest against the Opposite Parties in terms of section 13(2)(b)(i) of the C. P. Act, 1986 as amended;
That the OPs are jointly and severally directed to credit Rs 24256.68(as explained at Analysis para-8), and Rs 986.43(as explained at Analysis para-7) with 9 percent interest from 08/4/2015 till date of actual payment and Rs 9000/-(as explained at Analysis para-10) with 9 percent interest from 6th April, 2016 till date of actual payment, to the complainant within 30 days from the date of this order;
That the OPs are jointly and severally directed to pay Rs 10000/- as compensation for financial loss, physical harassment and mental agony of the complainant and Rs 5000/- as litigation cost, to the complainant within 30 days from the date of this order;
That the OPs are jointly and severally directed to wipe off any dues from the credit card account of the complainant, shown to have accrued due the disputed non-credited amounts; This is without prejudice to any other amounts unpaid by the complainant and the OP Bank is at liberty to realize the same as per their terms;
On non-compliance of orders at para-2 and 3 above by the OPs, the complainant shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.
Let copies of the judgement be handed over to the parties when applied for.
