Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : None
(2)
Date of filing of the case : 06.01.2021
Date of Disposal of the case :17.07.2023
Final Order / Judgment dtd.17.07.2023
Complainant above name filed the present complaint u/s 35 Consumer Protection Act against the aforesaid OPs praying for order to close alleged Credit Card after payment of Rs. 1077/- along with proper interest compensation amounting Rs. 10,00,000/- and cost of the case amounting to Rs. 25,000/-.
He alleged that he has a Saving Bank Account before OP no. 1 vide no. 913010008463825.
On 16.01.2020 as per request of the Bank complainant applied for one Flipkart Axis Bank Credit Card on 03.03.2020. After getting statement of the said Credit Card complainant came to learn that on 26.02.2020 and 27.02.2020 total amount of Rs. 80,8000/- have been deducted fraudulently from the said Credit Card in the name of “ NOBROKER TECHNOLOGIES”.
Complainant informed the said matter through helpline number and thereafter informed to I/C Krishnagar P.S vide G.D.E no. 34 dtd. 16.03.2020 about said cyber fraud and also informed the matter to the Ops on 06.03.2020.
Thereafter, due to Covid-19 pandemic lockdown started and latter on 23.04.2020 complainant submitted Card Holders dispute form being service request No.60480806 along with the written complaint.
Thereafter, on 29.04.2020 Rs. 40,400/- have refunded back in his Bank Account of complainant on 12.05.2020. Remaining amount Rs. 40,400/- also has been refunded back to his account on another date.
Complainant used the said Credit Card for 2 time relating to transaction amounting to Rs. 777 and Rs.300/-.
On 10.06.2020 OP no. 1 and 2 sent due recovery notice of the said Credit Card amounting to Rs. 18559.45/-. Said interest has been charge relating to aforesaid payment of Rs.80,800/-.
Thereafter, on 11.09.2020 amount of Rs. 80,800/- has been further deducted illegally for the second time in favour of the “NOBROKER TECHNOLOGIES” from the Credit Card of the complainant.
Thereafter, complainant then and there informed the matter to the Customer Care helpline. Complainants also make a complaint e-mail on 25.09.2020.
(3)
Thereafter, complainant also informed for the second time mailing fraud to the O/C Cyber Crime Police Station Krishnagar being GDE no. 172dtd. 17.10.2020 about the aforesaid fraud.
Thereafter, complainant sent a legal notice to the OP on 17.10.2020 through his Ld. Adv but OP did not take any steps.
Hence, the complainant files this case.
After receiving the notice OP no. 2 did not appear before this Commission.
Case is running ex-parte against him vide order dtd. 25.07.2022.
OP no. 1 filed W/V on 23.05.2022. They denied the entire allegation made in the petition of complaint and further contained that claim is not maintainable because complainant did not utter any word about the refund of disputed amount of Rs. 80,800/-. He further contended that complainant used the said Credit Card for transaction and two level security protocol were maintained.
Complainant after getting OTP put the same. On the basis of said OTP aforesaid transaction order was completed.
On perusal of record, we find that OP No.1&2 are not taking any steps since 05.12.2022.
Trial
During trial complainant filed affidavit in chief.
Documents
Complainant produced the following documents viz :
- Net copy regarding payment summary ...........(One sheet)
- Statement of account of Axis Bank for the period from 01.04.2022 to 31.03.2023.........(One sheet)........(Net copy)
- Service request (Card Holder dispute form)........(One sheet)........(Original)
- Copy of complaint addressed to Bank Manager Axis Bank.......(One sheet)........(Xerox)
- Customer complaint form (For ATM Transaction)........(One sheet)........(Xerox)
- Copy of complaint of complainant addressed to Bank Manager Axis Bank dated 06.03.2020.......(One sheet).....(Xerox)
(4)
- Copy of complaint lodged by complainant before I.C Kotwali Police Station..........(One sheet).........(Original)
- Copy of complaint addressed to OC Cyber Crime Police Station dated 07.10.2020........(One sheet).......(Xerox with receiving endorsement)
- Card Holder dispute form dated 02.06.2020........(One sheet).......(Xerox with receiving endorsement)
10)Letter of Axis Bank dated 10.06.2020........(One sheet).........(Original)
11)Advocate’s notice dated 31.03.2022.........(Four sheets).......( Original Along with Postal Receipt)
12)Letter of Maynak Khera and Associates dated 28.01.2022......(Two sheets).......(Net copy)
Brief Notes of Argument
Complainant filed BNA. OP NO.1 not yet filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP No.1, affidavit in chief filed by the complainant, documents filed by the complainant and BNA filed by the complainant. We have carefully considered these documents.
During trial OP No.1 was absent he did not file any questionnaire and question of filing answer did not arise. Said affidavit in chief of complainant is considered.
On perusal of petition of complaint and affidavit in chief of the complainant, we find that in between the 26.02.2020 and 27.02.2020 total amount of Rs.80,800/- has been deducted fraudulently from the Credit Card Account of the complainant and same has transferred in the name of NO BROKER TECHNOLOGIES. Complainant informed the said matter to the helpline. Thereafter, informed the matter to I.C Kotwali Police Station and G.D NO.34 dated 06.03.2020 was lodged relating to aforesaid Cyber Crime. On that time Covid Pandemic and Lockdown was going on as such complainant on 23.04.2020 submitted card holder dispute form along with written complaint. Thereafter on 29.04.2020 sum of Rs.40,400/- has been returned back in the account of complainant. On 12.05.2020 remaining amount of Rs.40,400/- has been refunded to the account of Credit Card of complainant.
On perusal of Card Holder dispute form, we find that complainant lodged compliant about the alleged transaction in respect of Rs.40,400/-
(5)
on 26.02.2020 and Rs.40,400/- on 27.02.2020. Accordingly, we find that a sum of Rs.80,800/- were deducted from the Credit Card account of complainant and that was transferred in favour of no broker technologies and subsequently complainant lodged complaint and submitted Card Holder dispute form before the proper authority and thereafter aforesaid disputed amount of Rs.80,800/- has returned back in the Credit Card Account of complainant.
Complainant further alleged that thereafter on 10.06.2020 he had received one Credit Card dues recovery notice relating to interest of Credit Card for the transaction of Rs.80,800/- amounting to Rs.18,559.45.
Thereafter on 11.09.2020 amount of Rs.80,800/- was again deducted from the Credit Card account of the complainant. Thereafter, complainant lodged complaint on 25.09.2020 through e-mail but said amount not yet returned back in his account. Thereafter complainant lodged complaint before the Cyber Crime Police Station, Krishnagar being G.D. entry No.172 dated 17.10.2020. But aforesaid problem not yet been solved till date. Thereafter on 17.10.2022 complainant sent a legal notice to the OPs but did not get any fruitful result.
On perusal of copy of complaint dated 17.10.2020 lodged before Cyber Crime Police Station, we find that on 11.09.2020 sum of Rs.80,800/- has been deducted from the Credit Card account of the complainant. But problem not yet been solved.
On perusal of legal notice dated 31.01.2022, we find that Ld. Adv. Mr. Debraj Das sent the said legal notice and stated the entire facts before the OP NO.2 and demanded justice. We also find that from the legal notice of OP NO.2 dated 28.01.2022, we find that they claimed Rs.1,11,249.86 from the complainant as outstanding dues .
From the aforesaid discussion, we find that a sum of Rs.80,800/- was deducted from the Credit Card account of the complainant on 06.09.2020. We also find that OP NO.1 & 2 charged interest amounting to Rs.18,959.45 as per notice dated 10.06.2020. Perhaps they claimed the said amount for the period in between 26.02.2020 to 12.05.2020. We also find from the legal notice dated 28.01.2022, that OP NO.1 & 2 claimed sum of Rs.80,800/- and interest Rs.30,449/-.
In this context, we have carefully gone through the decision of Hon’ble N.C.D.R.C. dated 13.03.2020 passed in Chairman Punjab National Bank Vs. Leader Valves Limited. We find that Hon’ble N.C.D.R.C. held:-
12. “The second fundamental question that arises is whether the Bank is responsible for an unauthorised transfer
(6)
due to any virus or hacking in the Bank’s computerized system. The answer, straightway, to this question also is in the affirmative. If an account is maintained by the Bank, the Bank itself is responsible for its safety and security. Any systematic failure, due to any virus or hacking, in its computerized system, is its responsibility, and not of the consumer.”
In this context, we have carefully gone through the another decision of Hon’ble S.C.D.R.C. Chandigarh dated 26.08.2019 in Manager, Customer Services, SBI use Credits and payment services Private Limited Vs. Jaiswal Agarwal, we find that Hon’ble S.C.D.R.C held in para 3 of the said judgment which reads as under:-
3. “On the other hand, respondent No.1 (complainant), who appeared in person, refuted the arguments raised by the Counsel for the appellant and submitted that his credit card issued by the appellant was backed and an amount of Rs.39,999/- was fraudulently transferred from his credit card account to some unknown account by some unknown person by hacking his e-mail ID and credit card details. He argued that as the transaction was a fraudulent one, the appellant offered a reversal of Rs.10,000/- while replying to the legal notice sent by him. He further argued that the Forum rightly allowed his complaint by citing Circular dated 06.07.2017 of Reserve Bank of India whereby detailed instructions with regard to Limiting Liability of Customers in unauthorized Electronic Banking Transactions have duly been conveyed to All Scheduled Commercial Banks (including RRBs) and all Small Finance Banks and Payments Banks. It was argued that as per said circular, in case of third party breach where deficiency lies neither with the Bank nor with the customer but lies elsewhere in the system and the customer notifies the bank within three working days of receiving the communication from the bank regarding unauthorized transaction, such customer is entitled to zero liability, Lastly, it was argued that the impugned order passed by the Forum be upheld and the appeal of the appellant be dismissed.”
Perused THE RBI RULES ON CUSTOMERS LIVELIHOOD ON UNAUTHORIZED ELECTRONIC BANKING TRANSACTION (FRAUDS), we find RBI stated.
“1)Zero liability:
A. The customer will have zero liability when the unauthorized transaction happens due to contributory fraud or negligence or deficiency of service on the Bank’s part. The customer will enjoy zero liability under this event even if he/she fails to report the transaction to the Bank.”
On perusal of record, we find that complainant is a consumer and OP No.1 & 2 are service provider.
(7)
Having regard to the aforesaid discussion, it is clear before us that complainant has established his grievance by sufficient documentary evidence and he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against OP NO.1 and allowed ex-parte against OP NO.2 with cost of Rs.5,000/- (Rupees Five thousand) to be paid by OP NO.1 & 2 in favour of the complainant in equal share.
OP NO.1 & 2 jointly or severally are directed to refund the sum of Rs.80,800/-(Rupees eight thousand eight hundred) in the Credit Card Account of the complainant or in the savings bank account of the complainant within one month from this day failing which complainant shall have liberty to put this order into execution.
OP No.1 & 2 jointly or severally are not entitled to claim Rs.1,11,249.86 (Rupees One lakh eleven thousand two hundred forty nine and eighty six paisa) from the complainant as per their legal notice dated 28.01.2022.
Complainant is directed to pay Rs.1077/-(Rupees one thousand seventy seven) in favour of the OP NO.1 & 2 along with interest applicable in the said account.
OP NO.1 & 2 jointly or severally are directed to pay compensation amounting to Rs.50,000/-(Rupees fifty thousand) in favour of the complainant within one month from this date failing which complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
