By  Sri.P.K.Sasi, President

        The case of the complainant is that he was conducting business of selling electrical items for his livelihood. He has no other source of income. The complainant operated a current account with the 1^st opposite party. Thereafter the 1^st opposite party installed a credit card machine in the complainant’s shop as a part of their additional facilities given to the current account holders. The machine was installed in the shop so as to deal with customers who are coming for shopping using credit cards. Once the customer made any purchase using credit card it will swipe in the machine and obtained a receipt for the purchase using credit card from the customer and one copy will given to the customer and another copy will be kept with the shop owner. At the same time the amount will be debited from the account of the customer as per the agreement between the banker and holder of the credit card. Therefore, the banker is liable to credit this amount to the account of the shop owner without any delay after deducting the banks commission as agreed between the parties.  If there is any dispute between the banker and credit card holder that can be resolved between them and the shop owner cannot be made liable for any act done by the banker/credit card holder.

        2) Being so one customer purchased various items from the complainant’s shop on 09/04/08 for an amount of Rs.13,300/- by using his Master Card and another customer purchased various items on 21/04/08 for an amount of Rs.14,880/- using Master Card and the swipe was also done promptly without any difficulty.  Accordingly, the amount covered by the purchase made on 09/04/08 credited to the account of the complainant by the 1^st opposite party bank on 10/04/08. Similarly the amount covered by the purchase made on 21/04/08 was credited to the complainant’s account on 22/04/08. Thereafter on 16/05/08 the 1^st opposite party bank has debited an amount of Rs.28,180/- from the account of the complainant stating that the above two credits entered in the account of the complainant was wrongly done and hence it is reversed from the account of the complainant.

        3) According to the complainant the act of the 1^st opposite party  bank debiting an amount of Rs.28,180/- in the account of complainant is illegal and without any basis. That amounts to deficiency in service on the part of the 1^st opposite party towards the complainant. The credit entry made by the 1^st opposite party on 10/04/08 and 22/04/08 were on the basis of the purchase made by the account holder of the bank and it was a valid transaction also. Since the credit card machine is provided by the 1^st opposite party bank to the complainant it is the responsibility of the 1^st opposite party to ensure that only a valid credit card is read through the swipe machine provided by them. Once the swiping machine validly read the card there is no alternative for the complainant to deliver the goods after accepting the same. And the 1^st opposite party bank is duty bound to credit the amount to the account of the complainant. After crediting the amount the 1^st opposite party has no authority or right to withdraw or debit the amount from the account of the complainant. The act of the 1^st opposite party was without giving proper notice or intimation and consent from the complainant. Due to the illegal acts of the 1^st opposite party the complainant happened to sustain unnecessary loss of Rs.28,180/- for which the 1^st opposite party can only be held liable. Accordingly a notice was issued to the 1^st opposite party asking them to return the amount. But even after accepting the notice the 1^st opposite party neither sent any reply nor acted as per the notice. Hence this complaint is filed for getting relief. After filing the complaint the 2^nd opposite party is also impleaded and notice was issued to both the opposite parties.

        4)  Being noticed on the complaint the 1^st opposite party entered appearance through counsel and filed detailed version. Whereas the 2^nd opposite party even after accepting the notice neither appeared before the Forum nor submitted any version hence set ex-parte. In the version filed by the 1^st opposite party the current account of the complainant and a swiping machine provided by the bank is admitted  whereas they denied all other allegations stated in the complaint in detail. According to the 1^st opposite party the complainant has requested to the 1^st opposite party bank for installation of Electronic Data Capture Machine (EDC) by submitting an application in the prescribed form. The complainant has also entered in to an agreement with the bank for installation of EDC machine at their shop by agreeing to all the terms and conditions of the said agreement. Thereafter the 1^st opposite party bank’s approved vendor installed an EDC at the complainant’s shop and the complainant was satisfied with the installation, working condition and performance of the EDC. Proper training was also given to the complainant regarding the use of EDC Machine.

        5) The 1^st opposite party further submitted that the complaint is silent about the particular of the customers/card holders and the cards used by them. It is learned that transactions are made using fake cards. The original card holders were foreigners. The signatures in the card used for the transaction were not matching with the original one. It is the bounden duty of the merchant to verify the identity of the card holder with his valid passport and note passport number, country of issuance of passport and local address of the card holder and keep it for records along with the copy of the terminal receipt in the case of acceptance of valid cards from the foreigners. In the present case the complainant has not done so. The 1^st opposite party bank received a complaint from the original card holders bank regarding the fraud and on verification it was found that the above was a fraudulent transaction. Accordingly the amount credited were debited from the complainant’s account after giving information to the complainant.

        6) According to the 1^st opposite party they are not bound to reimburse the amount, inspite of the  fact that the EDC machine facilitated the transaction. It appears that the complainant has colluded with certain fraudsters and effected the transaction or has not taken a reasonable care to verify the scrutiny features of the card, which he is supposed to take in terms of agreement and training given to him  while installing the EDC Machine. The cards used by the alleged purchasers were counterfeit cards. The transactions under an EDC machine will go through if the magnetic field as contained in the card matches with the magnetic field of the EDC machine, when it does, it sends the necessary instruction and the transaction get approved.  That does not confirm that the transaction is a genuine one or does it cast any duty on the 1^st opposite party bank to pay the amount. The approval of EDC is only one part of transaction. It is for this reason the 1^st opposite party bank has instructed and given adequate training to all EDC machine holders about the need to verify and to check the authenticity of the cards. It is crystal clear that the complainant omitted either purposefully of otherwise to check the most vital details before permitting card holders to use the card. Therefore it goes without saying that the complainant was utterly and grossly negligent which had lead to the purported fraud. The visa has refused the payment stating that the cards used were counterfeit cards.

        7) The 1^st opposite party further submitted that this complaint is filed without malafide intention to cover up the act of negligence, fraud, and omission of the complainant. They further submitted that the complainant has signed the agreement which stipulated all the terms and conditions and also the 1^st opposite party bank has set up a dedicated Authorisation/support centre to enable their EDC Merchant Establishments to seek their help if required to detect such frauds. Therefore, the 1^st opposite party cannot be held liable for the payment of any amount as claimed by the complainant and neither any deficiency in service nor any unfair trade practice happened on their part and prayed for the dismissal of the complaint with cost.

        8) Then the case was posted for evidence and the points for consideration was that

                1) Whether there was any deficiency in service or

                    unfair trade practice happened on the part of any

                    opposite parties ?

                2) If, so what cost and relief ?

        9) From the side of complainant he has appeared before the Forum and submitted proof affidavit in which he has affirmed and explained all the averments stated in the complaint in detail. He also produced 5 documents which are marked as Ext. A1 to A5. Ext. A1 is the copy of debit slip; Ext. A2 is the copy of Account statement; Ext. A3 is the copy of receipt evidencing the purchase dtd. 09/04/08; Ext. A4 is the copy of receipt evidencing the purchase on 21/04/08 and Ext. A5 is the copy of notice. From the side of 1^st opposite party the Manager one Mr. Vivek Shenoy appeared before the Forum and submitted counter proof affidavit in which  he has affirmed and described all the contentions raised in their version in detail. He also produced two documents which are marked as Ext. R1 & R2. Ext. R1 is the copy of Merchant acquiring services application form and Ext. R2 is the copy of Merchant establishment legal agreement. The complainant was examined as PW1 and vehemently cross examined by the counsel for the 1^st opposite party. Both sides filed detailed argument notes and we heard in detail also.

        10) According to the complainant the opposite party illegally debited an amount already credited to the account of the complainant in use of swiping machine. Whereas the opposite party contented that the complainant fraudulently made the 1^st opposite party to credit the amount to his account using counter feet cards. Therefore as per the terms and conditions of the agreement they debited the amount from his account. Here the burden is upon the 1^st opposite party bank to  prove before the Forum that the true transactions using EDC machines were invalid and the cards used for swiping were fake. Except the Ext. R1 & R2 documents no other materials produced from the side of 1^st opposite party to prove before the Forum that they have debited. The amounts once credited to the account of the complainant with genuine reason. The main contention of the 1^st opposite party is that all the transactions using the EDC machine are subject to the terms and conditions of the Ext.R2 agreement.  We have made an attempt to go through Ext. R2 agreement it is not possible without the help of magnifying lens to read a single sentence of the agreement, which is printed in such a minute letters. If it is important and material documents as contented by the 1^st opposite party, it ought to have been made in legible form. It cannot be believed that the complainant has signed the Ext. R2 agreement by reading and understanding the contents of it. By making such agreement itself the 1^st opposite party committed utter unfair trade practice towards the customers. We cannot simply shut our eyes against such unfair act purposefully committed by the 1^st opposite party. Furthermore, the 1^st opposite party  could  not  prove  before  the  Forum  that  the two transactions  were  made  by   foreigners. The complainant in his cross examination categorically stated that those card holders were not foreigners but they were malayalees. There is no records produced from the side of contesting opposite party to convince us that they have properly trained and instructed to the complainant regarding the use of EDC Machine.

        11) Considering all these points we are of the opinion that the 1^st opposite party cannot prove before the Forum that they have acted legally with genuine reason. If at all any contra evidence for the 2^nd opposite party, they ought to have been appeared before the Forum and submitted their version. Therefore, we are of the opinion that the 1^st opposite party has committed deficiency in service as well as unfair trade practice towards the complainant.

        In the result, we allow this complaint and the 1^st opposite party is directed to return Rs.28,180/- (Rupees Twenty eight thousand one hundred and eighty only) with 9% interest from the date of complaint along with Rs.5,000/- (Rupees Five thousand only) as cost and compensation to the complainant within one month from receiving copy of this order. Failing which, the complainant is entitled to get 9% interest for all those amounts till realization.

        Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the     31^st day of July 2017.