Andhra Pradesh

East Godwari-II at Rajahmundry

CC/29/2015

Rasvender Singh Sahani - Complainant(s)

Versus

Branch Manager, HDFC Bank, - Opp.Party(s)

T. Anjaneyulu

27 Jul 2016

ORDER

                                                                                                Date of filing:   28.04.2015

                                                                                                Date of Order:  27.07.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                          PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                Wednesday, the 27^th day of July, 2016

 

 

C.C.No.29 /2015

Between:-

 

Rasvender Singh Sani, S/o. Pretam Singh Sahani,

Aged 42 years, Occ: Business, Door No.23-13-7/1,

Sahni Nivas, Sriram Nagar, Rajahmundry.                                            …        Complainant

 

                        And

 

1)  Branch Manager, HDFC Bank, H.No.46-17-20,

      Main Road, Danavaipeta, Rajahmundry.

 

2)  HDFC Bank Ltd., Rep. by Manager,

      Credit Cards Division, V floor, Suryodaya Complex,

      Opp: Shoppers Stop, Begumpet, Hyderabad-500016.

 

3)  Debt Manager, HDFC Banks Credit Card Division,

      HDFC Bank, H.No.46-17-20, Main Road,

      Danavaipeta, Rajahmundry.

 

4)  Divisional Manager, HDFC Bank Credit Cards Division,

      No.8, Lattice Bridge Road, Thiruvanmiyur,

      Chennai-600041.                                                                             …        Opposite parties

 

 

            This case coming on 19.07.2016 for final hearing before this Forum in the presence of Sri K. Bala Bhaskar and Sri T. Anjaneyulu, Advocates for the complainant and Sri V. Babu Rao, Advocate for the 2^nd opposite party and the opposite parties 1, 3 & 4 having been set   ex-parte, and having stood over till this date for consideration, this Forum has pronounced the following:  

O R D E R

[Per Sri A. Madhusudhana Rao, Member] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to withdraw the information shared with the other credit scoring agencies pertaining to the complainant and restore the CRISIL Status of the complainant; to credit an amount of Rs.39,160.12ps illegally withdrawn from the account of the complainant along with interest @ 24% per annum till the date of realization; award compensation of Rs.9,00,000/- towards mental agony and loss of reputation in market and award costs.

2.         The case of the complainant is that he was issued Credit card bearing No.4181362 000654340 by the opposite parties and he was also having current account with the opposite parties and he is regular payee of the outstanding amounts without payee. The complainant was shocked by seeing the bill pertaining to the month of November generated on 12.12.2012, that without knowledge and without his intervention an amount of Rs.45,987-67ps dt.26.11.2012 was shown as debit to his account alleged to be spent at Birham B4 parking IVR and similarly an amount of Rs.19,338-13ps dated 26.11.2012 and an amount of Rs.11,638.11ps dated 26.11.2012 and Rs.9,412.68ps dated 26.12.2012, Rs.3,137.56ps dated 26.11.2012 was debited to his account and Rs.11,631.67ps at British Gas. Similarly, other entries also reflected in the credit card statement of the complainant.  At any point of time, the alleged purchases were made by the complainant and the above wrong entries were made and debited to his account by the opposite parties. Without his consent, the opposite parties withhold an amount of Rs.39,160.12ps from the current account of the complainant on 29.8.2013 and thereafter the opposite parties withdrawn the said amount. Without his fault and due to fault of negligence of the opposite parties, the complainant sustained lot of mental agony. Hence, the complaint.

3.         The 2^nd opposite party filed its written version and denied all the allegations made by the complainant and the complaint is not maintainable either under law or on facts. It is submitted that the complainant availed Credit card facility from the opposite party No.4. The complainant availed the said credit facility by agreeing to abide by the terms and conditions governing the said facility. It is submitted that the complainant has filed the present consumer complaint alleging that some amounts were debited to his account towards online transactions made and further alleges that he has not made those transactions. It is submitted that below mentioned online transactions were made using the credit card of the complainant.

Transaction Date	Merchant Name	Amount
26.11.2012	BCW Group Ltd.	45,987.67
26.11.2012	British Gas	11,631.38
26.11.2012	Parking IVR	9,412.68
26.11.2012	Parking IVR	3,137.56
26.11.2012	Enterprise	19,338.13

 

It is submitted that the complainant disputed the above transactions and submitted disputed declaration form in the month of March, 2013. Disputed transactions pertain to November, 2012. It is submitted that the customer has to submit Dispute Declaration Form within 60 days from the date of statement. However, the customer has submitted the same with a delay. However, best efforts were made to resolve the issue and the opposite party tried their best to recover the said amount from the member banks. It is submitted that after follow up the opposite party could recover the funds/transaction amounts mentioned below:

Transaction date	Merchant name	Amount
26.11.2012	BCW Group Ltd.	45,987.67
26.11.2012	British Gas	11,631.38
26.11.2012	Parking IVR	9,412.68
26.11.2012	Parking IVR	3,137.56

 

However, the below mentioned transaction amount could not be recovered by the opposite party from the member bank.

Transaction date	Merchant name	Amount
26.11.2012	Enterprise	19,338.13

 

It is submitted that above transaction belong to Europe Region. It is submitted that since the customer has approached the opposite party with a delay, said amount could not be recovered from the member bank, however they have produced the car rental documents pertaining to the transaction. It is submitted that as per VISA guidelines complaint should be given within 60 days, but the customer has given complaint in March, 2013 for the transaction took place in November, 2012. It is submitted that the customer receives email statement and also manual statements every month. Further an SMS will also sent to his mobile number immediately after the transaction took place. Had the customer has not made those transactions, he should have approached the Bank immediately. It is submitted that the customer has to blame himself for not complaining immediately. It is submitted that there is no deficiency in service of the opposite party. Though the customer has given complaint with a delay, the opposite party has made their best efforts to recover the amounts from the member banks and could get four transactions amount back and one transaction amount could not be received from the member bank, as the time is elapsed, because of delay of complainant in giving the complaint. It is submitted that once the transaction took place in the card account, opposite party has to pay the same to the member bank and recover the same from the customer/complainant. It is submitted that the card account was registered for verified by Visa (VBV) on ________  and there has been no mobile number and e-mail id change observed in 45 days prior to the transaction date. It is submitted that the second level and additional password is known to the complainant only. For making any online transaction using the credit card issued by the opposite party one must know these passwords and other details which are known to the complainant only. It is submitted that it is online transaction made by using the credit card details of the complainant and the said details such as password etc. are known only to the complainant. It is submitted that it is Verified by Visa Transaction and without knowing the password and the card details no one can make online transactions. It is submitted that it might have been done either by the complainant or with his knowledge and information some other person might have done the online transaction, hence the opposite party is justified in debiting the same to the account.  It is submitted that the complainant is a regularly doing online transactions and had used the card for online transactions and he made few transactions before the above said disputed transaction. It is submitted that the jurisdiction of the Dist. Forum is limited to deficiency in service and the allegations such as fraud, cheating done by some miscreants even if it is true, cannot be looked into by the dist. consumer forums. It is submitted that there is no deficiency in service of the opposite party and the consumer complaint is not maintainable. It is submitted that the opposite party once the transaction is completed online by using the credit card details and password, the opposite party has to pay the said amount to the concerned merchant and claim the same from the complainant, which is not at all deficiency in the service of the opposite party. Even if any miscreants commits any fraud it is not deficiency in the service on the opposite party and it is a criminal allegation against such person which should be looked into by the investigating authorities such as police. It is submitted that since the customer did not dispute same within time frame, liability remains with the customer to pay the said amount. It is submitted that since the customer failed to pay the said amount, it attracted late payment charge and interest. It is submitted that the opposite party sent letters and reminders and demanded the complainant to pay the said amount, but the complainant failed and neglected to pay the said amount. It is submitted that as per the terms in Usage Guide – the Bank will have the lien and right of set-off on all monies, fixed deposit accounts, properties in their custody. Hence, the opposite party was constrained to exercise general lien on funds available in the savings account of the customer. Hence, the opposite party was constrained to exercise. Hence, the opposite party issued notice dt.29.8.2013 intimating the customer that they have placed hold on the funds available in his savings account. All details such as credit card number, savings account number hold on funds etc. are furnished in the said letter and the opposite party demanded the complainant to pay the demanded amount within 7 days, failing which the opposite party will be constrained to exercise their right and adjust the funds available in the savings account towards the outstanding in his credit card account. However, customer failed to pay the said amount, hence the opposite party was constrained adjust the said amount towards credit card rules.  Hence, there is no deficiency of service on the part of this opposite party and the complaint is liable to be dismissed with exemplary costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A5 have been marked for the complainant. The proof affidavit filed by the 2^nd opposite party and Exs.B1 to B3 have been marked for the 2^nd opposite party.

5.         Heard both sides.

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite parties?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

7.  POINT Nos.1 & 2:  As per the record, the complainant maintained a Current account vide No.02152320001025 with the 1^st opposite party bank at Rajahmundry and the complainant was also issued a Credit card bearing No.4181362000654340 by the opposite parties. The complainant alleged that the 1^st opposite party bank generated a bill for an amount of Rs.45,987.67ps dt.26.11.2012 and debited the same from the complainant’s account spent at Birham vide transactions of Rs.19,338.30ps, Rs.11,638.11ps, Rs.9,412.68ps, Rs.3,137.56ps and Rs.11,631.67ps at British Gas as per the complainant’s credit card statement issued by the opposite parties on the even date as per Ex.A5 and when the complainant disputed the above said transactions through card holder dispute form as per Ex.A3, the opposite parties bank authorities reversed all the transactions made at Birham except Rs.19,338.13ps held on 26.11.2012 towards the bill issued by Enterprise as per the Visa Signature Credit Card Statement dt.12.4.2013 issued by the 2^nd opposite party that there was a due of Rs.33,179.51ps vide complainant’s Credit card account under Ex.A4. After that, the complainant received a notice dt.16.8.2013 vide Ex.A2 = Ex.B2 from the opposite parties legal counsel at Vijayawada inviting for conciliation as per Section 62 of the Arbitration Conciliation Act and later the opposite parties Legal Manager informed the complainant through notice dt.29.8.2013 with mentioning HDFC Bank Account No.02152320001025 and Credit card number as 4181362000654340 stating that there was a credit card balance of Rs.39,160.12ps to the extent of hold on funds of Rs.39,160.12ps on 29.8.2013 and if the complainant failed to pay the said amount on before 13.9.2013 and the said amount shall be debited to the complainant’s account as per Ex.A1.

            The 2^nd opposite party filed its version and contended that the complainant disputed the transactions at Europe Region pertaining to November, 2012 and submitted dispute declaration form in the month of March, 2013. The customer as per the rules has to submit the dispute declaration form within 60 days from the date of statement, but in the present case, it was submitted with a delay. The opposite party further contended that the best efforts made to resolve the issue and to recover the said amount from the member banks and could recover other amounts except the transaction through the Enterprise on 26.11.2012 for an amount of Rs.19,338.13ps as the Member bank produced the car rental documents pertaining to the transaction vide Ex.B1 and Ex.B3.

            On the other hand, the 2^nd opposite party contended that the card account was registered for verified by Visa and there is no mobile number and E-mail ID change observed in 45 days prior to the transaction date and further, it is an online transaction made by using the credit card details of the complainant and the said details and password etc. known only to the complainant. The complainant is regularly operating online transactions and he made two transactions before the disputed transaction.

            The opposite parties contended that the bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business and the bank has liberty to adjust from the proceeds of the two FDRs towards the dues to the bank and there is any balance left that would belong to the depositor as per the decision in Syndicate Bank Vs. Vijay Kumar: AIR 1992 SC 1066 and further the opposite parties also relied on the following citations in this regard.

1. Smt. K.S. Nagalambika Vs. Corporation Bank, AIR 2000 Kant 201,
2. Union of India Vs. Jyoti Chit Fund and Finance, AIR 1976 SC 1163,
3. SBI Vs. K.K. Bhalla – R.P.No.3182 of 2008, National Commission,
4. Palteru Venkata Malleswara Rao Vs. Bank of Baroda, F.A.No.854 of 2011, A.P. State Commission.

Further, the opposite party also relied in Bank of Baroda Vs. Sh. Vashisht Gupta, State Consumer Disputes Redressal Commission, U.T., Chandigarh, in which it was held that since the transaction was made in a complete secured mode, it could not be said that proper security measures had not been adopted by the opposite party No.2 bank. Investigation of the matter, by the Cyber Cell, is a different thing. Here, we are only concerned with the alleged deficiency, in rendering service, if any, committed by the opposite parties. Since the transaction of online shopping, through ATM card of the complainant, was carried out in a complete secured mode. The opposite parties cannot be blamed.

            But, in the present case, the entire transactions were held on 26.11.2012 and all the transactions were made in the Europe Region, only one transaction of Rs.19,338.13ps was not reversed by the opposite parties bank authorities along with other transactions which said to be made on the same date i.e. 26.11.2012 through the complainant’s Credit card were reversed. Further, we observed that the notices under Ex.A2 dt.16.8.2013 and Ex.A1 = Ex.B2 dt.29.8.2013 were issued to the complainant mentioning the credit card number as 4181362000654340 of the complainant. But, as per the statement of transactions, the credit card number was mentioned as 4181362000348646, so there was a discrepancy in the credit card number as per the statement and in the card holder dispute form, no date was mentioned, on which date the same is submitted to the bank authorities, so under those circumstances, it is not possible to say whether the form is submitted by the complainant in March, 2013 or prior to that date. However, when the other transactions were reversed by the opposite parties bank alleged to be transacted in Europe Region and the Member banks could act upon the request of the opposite parties bank, why not the transaction pertaining to Rs.19,338.13ps made on 26.11.2012 in the same course of transaction and in the same region, more particularly when the complainant declined all the transactions alleged to be made in the Europe Region in person or even through the online transactions and requested for reversal of deducted amount through one consumer dispute form.

We do agree with the opposite parties contention that the bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business and the bank has liberty to adjust from the proceeds and since the transaction of online shopping, through ATM card of the complainant, was carried out in a complete secured mode. But, the facts and circumstances of the present case is different from those of above cited judgments by the opposite parties and not applicable to the present case.    

 

With the discussion held supra and under the facts and circumstances of the case, we are in the considered opinion that the non-reversal of transaction alleged to be made by the complainant through Enterprise for an amount of Rs.19,338.13ps on 26.11.2012 and further, deduction of Rs.39,160.12ps from the current account of complainant amounts to deficiency in service on the part of the opposite parties. Further, the complainant alleged that as the credit information shared with the credit bureaus, the CRISIL rating of the complainant was drastically fallen and the complainant is not in a position to approach the financial organization for extension of his business, but there is no provision in the Consumer Protection Act to award compensation for business loss.

 

8.   POINT No.3:  In the result, the complaint is allowed in part, directing the opposite parties to pay Rs.39,160.12ps with interest at 9% from the date of complaint i.e. 28.04.2015  till realization to the complainant. We further direct the opposite parties to pay Rs.1,000/- towards costs of the complaint to the complainant.  Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the 27^th day of July, 2016.

    

                 Sd/-                                                                                             Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

Ex.A1    dt/29.8.2013    Copy of notice.

Ex.A2    dt/16.8.2013    Legal notice.

Ex.A3    dt/                   Card holder dispute form.

Ex.A4    dt/                    HDFC Bank credit card Statement.

Ex.A5    dt/                    Credit card statement.

 

 

FOR OPPOSITE PARTIES:-  

 

Ex.B1    dt/26.6.2013    Member Bank.

Ex.B2    dt/29.8.2013    Lien Notice addressed by the opposite party Bank to Cardholder.

Ex.B3    dt/31.8.2013    Proof of dispatch of Lien Notice addressed by the opposite party

                                    Bank to Cardholder.

 

                    Sd/-                                                                                        Sd/-

              MEMBER                                                                              PRESIDENT(FAC)