Chandigarh

DF-II

CC/591/2014

Mohit Gulati - Complainant(s)

Versus

HDFC bank - Opp.Party(s)

Shj. Rajneet Singh Kang Adv.

07 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	591 of 2014
Date  of  Institution	:	17.11.2014
Date   of   Decision	:	07.04.2016

 

 

 

 

 

Mohit Gulati, Quite Office-4, Sector 35-A, Chandigarh, resident of H.No.HL-181, Phase-2, Mohali.

 

             …..Complainant

Versus

 

1]  HDFC Bank, HDFC Bank Cards Division, P.O.Box 8654, Thiruvanmiyur PO, Chennai 600041

 

2]  HDFC Bank (Local Branch), SCO No.382, Sector 37-D, Chandigarh.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh.Ranjeet Singh Kang, Advocate

 

For Opposite Party(s)   :     Sh.Sandeep Suri, Advocate

 

 

PER JASWINDER SINGH SIDHU, MEMBER

 

 

          As per the case, the complainant is a holder of a Credit Card issued by Opposite Party Bank having No.4617 xxxx xxxx 5871, with complainant’s initials imprinted on it.  It is averred that the complainant was called by the Executive of Opposite Party No.2 to verify as to whether he had used the credit card on 3.12.2012 at M/s Kingdom of Jewelary Co. Ltd., Bangkok for a transaction of Rs.2,27,650.01. The complainant denied of having any such transaction through his credit card and informed that on 3.12.2012 he was in India and the card was also physically in his possession. The complainant also informed the Opposite Parties that he had visited Bangkok in first week of Nov., 2012 where he had used his card for shopping, but he returned on 11.11.2012. Then as advised by the OPs, the complainant replaced his old credit card with new credit card bearing No.4617 xxxx xxxx 6075.  It is averred that regarding the said fraudulent transaction, the complainant was in regular contact with the Opposite Parties, but the dispute arose when the Opposite Party issued bill Ann.C-2 raising demand of Rs.2,27,650.01 for said fraudulent transaction. Then, the complainant sent e-mail on 12.2.2013 denying the said fraudulent transaction saying that he was present in India at that time and the card was also in his possession.  Further, the signatures present on the transaction slip are not of the complainant and the complainant also provided the copy of his passport to the OPs to prove his stand.  Thereafter, the complainant deposited an amount of Rs.12,500/- as advised by Mr.Nitin, Executive of OPs so that the car remains activated/not blocked permanently and that this amount would be refunded along with disputed amount, but despite of all that the new credit car was blocked.  However, on 29.5.2013 through an e-mail Ann-5, the OPs came up with all together a new story and started alleging that on 5.12.2012, the Opposite Parties requested the complainant to attempt a transaction at the point of time to confirm the possession of the car at his end and also file a complaint with law enforcement authorities, but the complainant has not done the needful, so he has to pay the disputed amount.  Alleging the above act & conduct of the OPs as gross deficiency in service and unfair trade practice, hence this complaint has been filed. 

 

2]       The Opposite Party has filed the reply and admitted the issuance of credit card to the complainant.  It is denied that any call for intimation about the said transaction was made to the complainant by the Opposite Parties.  It is stated that such a transaction can be carried out by any person who has the custody of the credit card and who has also been informed in respect of the details/password in respect of the same.  That the complainant was requested to make a transaction at the closest ATM which would have proved the physical presence of the card in India, as has been alleged by the complainant, but the complainant did not do so to prove the same.  It is stated that the complainant requested for blocking of the card only on 5.12.2012, whereas he admitted came to know about the transaction on 3.12.2012 and therefore he should not have waited till 3.12.2012 to block the card.  Further that the complainant has not dill ate filed any complaint with the police authorities in respect of the alleged misuse of the credit card as has been stated by the complainant.  It is pleaded that a detailed investigation was carried out on the basis of the complaint which was made by the complainant.  It is also pleaded that ever after the using of the car, the complainant has continued to make small payments towards the outstanding dues.  It is further pleaded that no amount is refundable to the complainant and in fact the complainant is liable to pay the amount due against the credit card. Rest of the allegations have been denied with a prayer to dismiss the complaint. 

 

3]       Rejoinder has been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the reply. 

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the record as well as written arguments.

 

6]       The complainant has preferred the present complaint against the Opposite Parties that he is the bona-fide account holder of OP No.2 and on the basis of the account maintained with OP NO.2, a credit card was issued by OP No.1.  The complainant was entitled to use the said credit card for all his purchases including to be used overseas during his foreign travel.  The complainant has also claimed that he has been regularly paying his credit card bills, as and when they were raised.  The complainant after his visit to Thailand in the month of Nov., 2012, received the credit card statement for the month of Jan., 2013 and was surprised to note that an unauthorized purchase of Rs.2,27,650.01 was made on 3.12.2012 at Bangkok City in Thailand, whereas on the fateful day the complainant was in India and even the credit card was in his possession.  The complainant on receiving the said statement Ann.C-2, raised the matter with the Opposite Parties.  However, the OPs took the matter lightly and advised the complainant to wait for sometime, as the matter was being looked into. Thereafter, the Opposite Parties hardened their stance and demand the complainant to pay the amount as mentioned in the credit card statement. The complainant claims that the act of the Opposite Parties in not helping him out of his difficulty in locating the wrongful transaction amounts to deficiency in service on their part. The complainant has also disclosed that on 5.12.2012, he was advised by the executive of the OPs to immediately make a blank/false transaction from the nearest ATM of any bank, so as to confirm that he was in the possession of the said credit card in question.  The complainant claims that he could not use the said credit card on the instruction of OPs, as he was in a far off village in district Ferozepur (Punjab).  However, subsequently, a fresh credit card was got issued on 26.12.2012 by completing necessary formalities.  The complainant is aggrieved of the non-settlement of the dispute by the OPs till date. 

 

7]       The OPs while contesting the claim of the complainant, has filed a joint detailed reply, disclosing the entire sequence of events and also the outcome of the investigations conducted at their end, finally resolving to the point that the credit card in question was physically used at the merchant outlet in Bangkok City, Thailand and there was no possibility of cloning or skimming, as the said credit card was used in a Chip Mode, and nothing abnormal was detected, as per their analysis.  The Opposite Parties even disclosed that the complainant was advised to make a test transaction to confirm the card’s presence with him in India, but the complainant having failed to do such a test transaction, cannot lay the blame at the doors of the Opposite Parties.  The Opposite Parties have placed on record the details of the calls received at their end, showing that for the first time, the complainant called up on 5.12.2012, to block his card, as some unauthorized transaction has taken place. The Opposite Parties while acting on this call, blocked the said card by hot listing the same within 4 minutes of the receipt of the call.  The OPs have claimed that no phone call was received at their end between 2^nd to 5^th Dec.,2012 for blocking of the card.  The Opposite Parties have also disclosed that at the time of issuance of the card, its credit limit was upto Rs.1.00 lac, which was enhanced to Rs.2.50 lacs at the request of the complainant in the month of Sept., 2012.  The Opposite Parties have also claimed that the complainant is a frequent flyer and had visited Thailand on numerous occasions, apart from having visited Philippines and China also.  That the complainant should have reported the matter to the police which he failed to do, at either of the places. Thus, claiming no deficiency in service on their part, prayed for dismissal of the complaint.      

 

8]       We have perused the documents placed on record by the parties and are of the opinion that the complainant, who is a grown-up man of 25 years of age, and is a frequent flyer to different destinations. The complainant’s grievance against the OPs is with regard to the debit entry of Rs.2,27,650.01, as reflected in the credit card statement, dated 3.1.2013 (Ann.C-2) vide which a merchant transaction had happened on 3.12.2012 in Bangkok City of Thailand.  The complainant claims that on the fateful day, he was in India and the said credit card in question, was in his possession when the said transaction took place at Bangkok, therefore, the Opposite Parties were asked to block the card on 5.12.2012, so that no transaction can be made from the said credit card.  The complainant demanded that the amount so demanded by the OPs was illegal and he could not be made to pay the same, as he had not made such transaction himself through his credit card issued by the Opposite Parties. 

 

9]       It is important to quote here that as per the details of the Passport (Ann.C-1), placed on record by the complainant, he had for the first time travelled outside India in the month of July, 2012 and this visit was to Thailand between 5^th July to 13^th July, 2012.  The complainant thereafter got his credit card limit enhanced from Rs.1.00 to Rs.2.50 lacs in the month of Sept., 2012.  The complainant visited Thailand between 8^th to 11^th Nov., 2012 while his “Visa On Arrival” stamped from Thailand Immigration Authorities shows the tenure of his Visa as 8^th Nov., 2012 to 22^nd Nov., 2012.  The complainant has claimed that he was in India on 11.11.2012, as is evident from Ann.C-1 (Page 16 of the paper book), to press his point that on the fateful day of the transaction in question on 3.12.2012, he was not even there in Bangkok, and because of this reason, when the credit card was in his possession in India, he could not have used the same on 03.12.2012 in Bangkok City.  It is necessary to mention here that the complainant was again in Thailand in the month of November, 2012 as per Ann.C-1 - Page 17 of Paper Book – Visa On Arrival stamp marked with Red Marker as Mark-Z.  Though the date on the stamp is no so legible, but the month & year could be easily made out. The complainant has not disclosed that for how long he remained in Thailand on his subsequent Visit in the month of Nov., 2012.  Even if, we ignore this fact, it was incumbent upon the complainant to prove that while the transaction in question on 03.12.2012 had happened, the Credit Card belonging to him was in his possession and he himself was in India.  The summary procedure adopted to decide the matter under Consumer Protection Act, though allows filing of affidavits of the parties, however when such issue is contested by the defendant, the onus to prove the contents of the affidavit shifts once again on the complainant, who alleges deficiency in service on the part of the Opposite Parties.

 

10]      The complainant claims that on 5.12.2012, he was asked to use the credit card in question at the nearest ATM machine of any bank, but being away to a far off place, he could not do so.  But he failed to explain as to why he did not use the credit card at all, as the same could have been used with a little delay of few hours or a day.  The act of the complainant in not using the credit card on the instruction of the Opposite Party to show its physical presence with him, leave a lot many questions to be answered by him.  The complainant, since the happening of the alleged unauthorized transaction on 03.12.2012, preferred the present complaint on 17.11.2014 and during this period, the complainant had even frequently visited Thailand. The complainant neither filed any police complaint in India till date nor did he bring this fact to the knowledge of Thai Police Authorities on his subsequent visits to that Country, so that the identity of the person, who had visited the premises of Kingdom of Jewellary Company at Bangkok, could be ascertained, and the identity of the person making such transaction could be established, as each such transaction is always signed by the person making such purchases. Therefore, in these circumstances, it was incumbent upon the complainant to prove his allegations against the OPs by bringing on record cogent, reliable and trustworthy evidence and in the absence of any such evidence, the onus to prove deficiency in service on the part of the OPs, still remained with the complainant.  The sworn affidavit filed along with the complaint carries no weight in the absence of supporting documents establishing the presence of the complainant in India and that the credit card in question was in his physical possession while the alleged transaction had occurred on 03.12.2012 at Bangkok, Thailand. 

 

11]      Though the complainant has placed on record the RBI Guidelines, dated 28.2.2013 as Ann.C-6 along with his rejoinder, but has failed to explain as to how these instructions could be made applicable to the credit card issued to the complainant against which the alleged transaction had taken place.  Though we understand that the same are applicable to the credit card, which was got reissued by him on 26.12.2012 and is still being used by him.  These guidelines cannot be made applicable to the case of the complainant in any manner; therefore, the same are ignored.   

 

12]      Therefore, in view of the aforementioned discussions, we are of the concerted view that no case of deficiency in service is made out against the Opposite Parties. Therefore, the present complaint deserves dismissal. Accordingly, the complaint stands dismissed with no order as to costs.

 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

 

Announced

07^th April, 2016                                                   Sd/-  

                                                                       

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

Om                                                                                                                       

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.591 OF 2014

PRESENT:   None   Dated the 7th day of April, 2016

O R D E R                        Vide our detailed order of even date, recorded separately, the complaint has been dismissed against the Opposite Parties.                     After compliance, file be consigned to record room.

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member