Chandigarh

DF-I

CC/424/2023

NASIB SINGH - Complainant(s)

Versus

BAJAJ FINANCE LTD. - Opp.Party(s)

SUNITT CHAUHAAN

03 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/424/2023
Date of Institution	:	01/09/2023
Date of Decision	:	03/09/2024

 

Nasib Singh Son of Sh. Mehar Singh, R/o 1372/1, Sector 30,  Chandigarh.

 

...Complainant

 

VERSUS

1. Bajaj Finance Ltd., S.C.O. 57-58, Sector-17 A, Chandigarh through its Manager/Authorised  Representative.
2. D.B.S. Bank, S.C.O. 42-43, Ground Floor, Madhya Marg, Sector 9- D, Chandigarh through its Branch Manager/ Manager/ Authorised Representative.
3. Credit Information Bureau India Limited (CIBIL), Registered Corporate Office: One Indiabulls Centre Tower 2A, 19th Floor, Senapati Bapat Marg, Elphinstone Road, Mumbai, Maharashtra 4000013 through its Managing Director.

 

...Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Sunit Chauhaan, Advocate for complainant
	:	Sh. Gaurav Bhardwaj, Advocate for OPs No.1&3.
	:	Sh. Amit Mahajan, Advocate for OP No.2

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that the complainant is regular customer of OP No.1 .  The OP No.1 alongwith OP No.2 had offered a credit card (hereinafter referred to be as subject credit card), to the complainant despite of his denial to have the same, which was delivered to him in his house.  On 29.6.2023  the complainant received a call from a person from mobile No.764911348 representing himself as employee of OPs No.1&2. The said caller further informed the complainant that as the complainant is not using the subject credit card for the last 29 days and in case he will not use the same, penalty of 2100/- shall be imposed on him. However, the complainant refused to use the said credit card even after that by  informing the caller that he is not required the subject credit card. Thereafter the complainant was requested by the employee/caller to share an OTP with him so that the subject credit card be closed but  the complainant refused to share such OTP  with the said caller. Thereafter the said caller disclosed all the personal information of the complainant like Aadhar card number, house address even the 16 digit credit card number to the complainant. On this the complainant by believing that the said caller is genuine employee of the OPs No.1&2, shared the OTP with the said employee/caller and immediately after that the complainant received a taxt message on his mobile that a sum of Rs.34,696/-  has been debited from his account and the same has been credited in the MobiKwik app. Immediately the complainant visited the office of OPs and informed them about the said fraud committed with him and when nothing was done by the OPs the complainant told the OPs that he will report the matter to the consumer court as well as to the police and only then the official of OP No.1 sent an email Annexure C-1 dated 5.8.2023. Having left with no other option, the complainant also reported the matter to SSP Chandigarh through complaint Annexure C-2. It is alleged that the complainant has started receiving call from the OPs for payment of outstanding bill of Rs.34,696/- failing which they will come to the house of the complainant and will create drama. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.

 

2. OP No.1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action suppression of material facts and jurisdiction. However it is alleged that as the complainant himself has admitted that he has shared the secret credential with the caller and only thereafter the disputed amount was debited from the account of the complainant, there is no deficiency on the part of the answering OP. The complainant himself is at fault by sharing the secret credential with the third person. Moreover, as the complainant himself alleged that fraud has been committed with him, this Commission has no jurisdiction to try the instant complaint as held in various judgments passed by the Apex Cout and other courts.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP No.2 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action and suppression of material facts. It is alleged that the case of the complainant revolves around the allegation of fraud occurred with the him and the answering OP  has no role and the matter is required to be investigated by the police including cyber cell and this Commission has no jurisdiction to try this case as the complainant has himself admitted sharing of OTP and personal information qua his account with the caller who was never an employee of the answering OP and as such the complaint is not maintainable. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested
4. OP No.3 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action. It is alleged that the answering OP is a company  incorporated under Companies Act  and this Commission has no jurisdiction to adjudicate the matter against the answering OP, since the functioning of the answering OP is only as of credit information company under the provision of CICRA. Moreover,  the answering OP has nothing to do with the fraud committed with the complainant by a third person.   On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested
5. Complainant chose not to file rejoinder.

2. In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is having his account with OP No.1 for the last 15 years and Ops No.1&2  had delivered  the subject credit card to the complainant at his home address and on 29.6.2023 the complainant received a call on his registered mobile number, asking the complainant to share his secret credential i.e. payment credentials  qua the subject credit card which the complainant firstly refused to share but after sometime when the complainant believed that the said caller is a genuine person and employee of the OPs No.1&2 he shared the payment credentials including the OTP with the caller as a result of which an amount of Rs.34,696/-  was debited from the credit card account of the complainant and only then the complainant came to known that fraud has been committed with him as he had received another call from mobile No.920570910 asking the complainant to pay an amount of Rs.34,696/-, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of OPs amounts to deficiency in service and the complainant is entitled for the relief as prayed for or if the complaint of the complainant being not maintainable is liable to dismissed.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the documentary evidence led by the parties and the same is required to be scanned carefully
   3. Perusal of Annexure C-2 a complaint filed by the complainant to the Cyber Cell indicates that the complainant received a call from mobile No.764911348  on 29.6.2023, asking the complainant to use his credit card failing which a penalty of Rs.2100/- shall be imposed upon him and when the said caller also disclosed all the personal details of the complainant including the credit card number etc., the complainant shared the OTP  with the said caller as a result of which an amount of Rs.34,696/- debited from his account and after 5 days on 4.8.2023, he received another call from mobile No. No.920570910 asking the complainant to deposit Rs.34,696/-  and thereafter the complainant came to know that a fraud has been committed with him. Annexure C-3  is the receipt which indicates that a complaint of the complainant was registered by the police.  Annexure C-4 is the credit card statement which indicates that a total amount of Rs.39,407.96  was shown outstanding  on 4.8.2023  in the credit card account of the complainant. Annexure-A at page 18  of the paper book of OP-1  is the consent form which indicates that the applicant/complainant himself has given consent for the issuance of the credit card in his favour whereas Annexure B at page 21 of the paper book of OP No.1 is  Co-Branded Credit Card Alliance Agreement exeuted between OP No.1&2.
   4.  The learned counsel for the complainant submitted that as it stands proved on record that the  complainant had never applied for the credit card with the Ops and further it has come on record that Ops No.1&2 delivered the subject credit card  to the complainant without even his willingness and an amount of Rs.34,696/- has been debited from his credit account  through fraudulent transaction for which the complainant is not liable, and as such the complainant is entitled for the relief as prayed for.
   5. On the other hand the counsel for OPs submitted that as it an admitted case of the complainant that he himself shared the O.T.P. i.e. Payment credential with the third person and for which the OPs cannot be held liable and there is no deficiency in service on the part of the OPs and the complaint of the complainant be dismissed.  
   6. There is force in the submissions of ld. counsel for the OPs as the complainant himself has admitted in the complaint that he has shared the OTP i.e. payment credential with the caller and further as it is proved on record that the complainant himself has given credit card consent form as is evident from Annexure-A at page 18 of the paper book of OP No.1 andit is well proved on record that after sharing of OTP i.e. payment credential by the complainant with the caller, the disputed transaction had taken place, it is safe to hold that the OPs cannot be held liable for the act or omission and negligent act  of the complainant even as per guidelines of the RBI, relevant portion whereof is as under:-

“7. A customer shall be liable for the loss occurring due to unauthorised transactions in the following cases:

1. In cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss until he reports the unauthorised transaction to the bank. Any loss occurring after the reporting of the unauthorised transaction shall be borne by the bank.
2. x x x x x x x x x
7.  As per aforesaid guidelines it is   specifically mentioned that the customer  shall bear the entire loss occurring due to unauthorized transactions on account  of negligence of the customer where he/she shares the payment credential until he reports the unauthorized transaction to the bank  and any loss occurred after the reporting of such unauthorized transaction shall be borne by the bank. In the instant case admittedly the complainant has shared his security credential with the third person and thereafter the amount was debited from his account and that too before the matter was intimated to OPs No.1&2, hence,, there is no merit in the complaint and the same is liable to be dismissed.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Pending miscellaneous application(s), if any, also stands disposed off.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 03/09/2024 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member