PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        By this complaint the Complainant has prayed for the reliefs to issue directions to the Opposite Parties to waive the expenses done on 08/04/2007 and for payment of Rs.1,00,000/- towards compensation for mental agony, Rs.10,000/- cost of the complaint.

2)        Brief fact of the Complainant’s case is as under –

            The Complainant is residing at Kalyan (W), Dist. Thane.  The Opposite Parties are Bank, having its offices at Chennai and Mumbai.  Opposite Party No.2 had issued Credit Card bearing No.4384599914566384 to the Complainant. On 08/04/2007 the Complainant lost his above credit card.  The Complainant lodged complaint about the loss of his credit card in the Police Station Vakola, Mumbai on 08/04/2007. The concerned police took the entry of the said loss of card in the register.  On 08/04/2007, the Complainant immediately informed the fact of loss of credit card to the Opposite Party No.1 by Fax No.04442100964.  After contacting to Opposite Party No.1 they confirmed that there have been four transactions of Rs.1,000/-, Rs.14,670/-, Rs.5,800/- and Rs.20,200/- at various renowned outlets amounting to Rs.41,670/-.  Thereafter, the Complainant informed all the above details to Opposite Party No.2 and asked for considering the said amount as disputed amount and for investigating the matter by the letter dtd.11/04/2007.  The Complainant received a letter dtd.16/04/2007 from Opposite Party No.1 informing that the disputed transactions were incurred prior to the card being reported lost, so the disputed amounts are to be settled by the Complainant. 

3)        The further case of the Complainant is that he received a copy of credit card statement for the period from 08/04/2007 to 07/05/2007 on 20/06/2007 which reflected all the fraudulent transactions done on the day on which Complainant had reported loss of credit card i.e. 08/04/2007.  On 21/06/2007 the Complainant sent letter to Opposite Party No.1 and asked for investigating how they honored transactions without verifying signatures.  The Complainant also informed the fact of loss of his credit card and about the above correspondence between the parties to Mumbai Grahak Panchayat by the letter dtd.29/06/2007. On 01/07/2007 the Complainant issued reminder to the Opposite Party and requested to consider these dues as disputed one. Thereafter, Opposite Party sent him two letters dtd.28/07/2007, 01/08/2007 and 12/01/20008 using threatening language. The Opposite Party has informed to the Complainant that they have investigated the matter and arranged to credit the card amount for Rs.14,670/- by the letter 19/09/2007.  The Mumbai Grahak Panchayat also issued reminder to the Opposite Parties by the letter dtd.10/12/2007 and asked for further investigation.  Opposite Party No.1 asked the Complainant to give account detail to enable them to investigate the matter by the letter dtd.16/01/2008.  The Complainant informed all the details to the Opposite Party by the letter dtd.26/01/2008.  In spite of giving all the details the Complainant received a credit card statement on 16/05/2008 for Rs.46,607.57 without deducing credited amounting Rs.14,670/-.  Hence, this complaint for the reliefs mentioned in above para no.1.

4)        Opposite Party Nos.1 & 2 resisted the claim by filing written statement.  The Opposite Parties has admitted that they issued credit card bearing No.#4384 5999 1456 6384 to the Complainant. The contention of Opposite Parties is that on 08/04/2007 they contacted the Complainant to verify transactions around 6.00 p.m. when the Complainant for the first time reported that he had actually lost his credit card.  The Opposite Parties have found in the investigation that the credit card of the Complainant was fraudulently used four times at various renowned outlets during the said period for a total amount Rs.41,670/-. Thereafter, Complainant lodged report in the police station Vakola, Mumbai on 08/04/2007.  The further contention of Opposite Parties is that as per the agreement between the Complainant and Opposite Parties, the Complainant is liable for all the transactions which took place from the time the card is lost till the same is reported to them. The Opposite Parties had called upon the Complainant to pay the said amount but he refused for the same and asked them to waive the amount of the disputed transactions. The Opposite Parties as a good will gesture took the matter with the member bank and after a considerable follow up by the Opposite Parties, the member bank accepted and the amount Rs.14,670/- was credited to the Complainant’s account and it was intimated to the Complainant but the Complainant insisted to the Opposite Parties for the reversal of entire amount Rs.41,670/-. The Opposite Parties could not accept the said demand of the Complainant. According to the Opposite Parties, they have replied to the Complainant’s letters. Opposite Parties have denied all rival contentions of the Complainant and prayed for dismissal of complaint with cost.

5)        The Complainant has submitted his affidavit of evidence.  The Opposite Parties have submitted affidavit of evidence of Rajiv Mohapatra, Vice President, Legal Department. Both the parties have submitted their respective written notes of arguments.  We have gone through documents filed by both parties.  We heard oral argument of Smt. Rashmi Manne, Ld.Advocate for the Complainant and Smt. Anita Marathe, Ld.Advocate for Opposite Parties.

6)        From the evidence of both parties it is clear that, Opposite Parties had issued to the Complainant Credit Card No.4384599914566384. On 08/04/2007 in all four transactions have been effected on the said card of the Complainant. The first transaction on 08/04/2007 at 1.40 p.m. of Rs.1,000/- at Balwant Hotel, Mumbai, second at 5.35 p.m. of Rs.5,876/- at Lawrence and Mayo, Mumbai, third at Savla Enterprises, Mumbai of Rs.14,670/- and last at 6.07 p.m. of Rs.20,200/- at Archana Jewellers, Nehru Road, Santacruz (E), Mumbai.  The Opposite Parties took the matter with the member bank and got a transaction worth Rs.14,670/- reversed. The Opposite Parties have informed the said fact to the Complainant by the letter dtd.19/09/2007.  On 08/04/2007 around 6.00 p.m. the Opposite Parties contacted the Complainant to verify transactions. Thereafter, the Complainant lodged First Information Report in the police station, Vakola, Mumbai on 08/04/2007. The Complainant has also informed the fact of loss of his credit card to the Opposite Party No.1 on 08/04/2007 at 6.19 p.m.

7)        The contention of Opposite Parties is that, on 08/04/2007 all transaction have been made on the credit card of the Complainant prior to reporting the loss of credit card to the Opposite Parties.  As per the terms and conditions of the credit card facility “card holder will not be liable for any transaction made on the credit card only after reporting the loss of card.”  Hence, Opposite Parties are not liable for the transactions effected prior to reporting the loss of card dtd.08/04/2007.  The Complainant comes with the case that, Opposite Parties have not provided him any terms and conditions of the agreement at the time of issuing credit card.  The Complainant came to know the terms and conditions of the credit card for the first time when Opposite Parties produced it in the complaint on 08/01/2009.

8)        Opposite Parties have produced alongwith written statement a user guide/terms & conditions of Gold Credit Card.  Condition No.1 of clause “lost or stolen credit card” provides that, in the event of the credit card is lost or stolen, card holder must have to report such occurrence to any office of Opposite Party Bank.  As per condition No.2 card holder will not be liable for any transaction made on the credit card only after reporting the loss/theft.  Condition No.3 provides that, although loss or theft is reported as mentioned in above condition No.(1) the card holder must confirm to Opposite Party Bank in writing. A copy of the acknowledged police complaint must accompany the written confirmation.

9)        The Opposite Parties have produced a computer print of card information of the credit card of Complainant at Exh.B alongwith affidavit of evidence of Rajiv Mohapatra.  As per the said print the Complainant had informed the fact of loss of his credit card to the Opposite Party No.1 at 6.19 p.m. on 08/04/2007.  The Complainant has also lodged FIR in the Police Station, Vakola, Mumbai on 08/04/2007. The Complainant has informed the fact of loss of his credit card to Opposite Party No.1 in writing by fax alongwith a copy of police report.  On 08/04/2007, the Complainant has already complied condition Nos.1 & 3 mentioned in user guide Exh.B filed alongwith affidavit of evidence of Rajiv Mohapatra. From the above act and conduct of the Complainant it is difficult to accept on his contention that he was not aware of the terms and conditions of the credit card till 06/01/2009.

10)      Rajiv Mohapatra, Vice President, Legal Department of Opposite Parties has deposed on oath that a copy of user guide is always sent to the customer with the credit card and in the present case too it was sent alongwith the card.  It is true the above oral evidence of Rajiv Mohapatra is not supported by the documentary evidence.  However, as per computer print Exh.B the Opposite Parties issued credit card to the Complainant w.e.f.31/01/2006. The Complainant has admitted in his evidence that he lastly used his credit card on 26/03/2007.  The Complainant has used the credit card during the period 31/01/2006 to 26/03/2007 therefore, now he cannot claim that he was unaware of the terms and conditions of the credit card.  It can be therefore, held that without knowing the procedure, terms and conditions of credit card the Complainant was not using the same. 

11)      The Opposite Parties have produced vide Exh.A alongwith affidavit of evidence of Rajiv Mohapatra, xerox copy of the application form submitted by the Complainant with the Opposite Party No.2 for getting the Gold Credit Card.  The said application form is in two parts and back sides of both part bears the signature of Complainant.  The print of declaration is on the back side of the first part and terms & conditions are printed on the back side of second part of the application form.  One can read the print of terms and conditions of back side of second part of the application. But the print of contents of declaration is so small and one cannot read it.  However, the Complainant has signed the said declaration.  However, the print of word ‘declaration’ is in reasonable size. 

12)      Smt. Rashmi Manne, Ld.Advocate for the Complainant has argued that the print of declaration, terms & conditions of back sides of Exh.A is so small therefore, it could not be said that Complainant was aware of such declarations, terms and conditions and that condition would not limit the liability of the Opposite Party.  The Ld.Advocate for the Complainant in support of her argument relied on the judgment delivered by the Hon’ble National Commission in original Petition No.66/1992, M/s. Tata Chemicals Ltd. V/s. Skypak Courier Pvt. Ltd. decided on 14/12/2001, (reported in 1986 -2004 Consumer 6873 (NS)).  In the said case the Hon’ble National Commission observed that –

          “It cannot be disputed that the Consignment Note issued by the Opposite Party is in standard printed form and that the Clause limiting the carrier’s liability, though appearing on the fact of it, is in a very small and fine print.  Even witness Jagdish Chittara examined by the Opposite Party, whose evidence I am inclined to disbelieve, does not say that the said clause or term was brought to the notice of the Complainant’s representative, much less discussed with him when he issued the Note and collected the consignment for transportation nor is there any correspondence exchanged between the parties indicating that the said clause was the subject of negotiations or bargain between the parties.  In the circumstances, it is difficult to hold that the said clause would bind the Complainant and as such I conclude that the said clause cannot be availed of by the Opposite Party for limiting its liability and it will have to make good the full value of the consignment to the Complainant.”                

            In the above cited case condition no.7 was on the reverse of the agreement form which was not signed by the Complainant and which was in small and fine print.  In the said judgment in para no.21 page no.6882 it has been laid down that -

            “If the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions, and if the other party knew that there was writing or printing on the document, but did not know it contained conditions, then the conditions will become the terms of the contract between them.”

            In the present case the back side of the first part of application form Exh.A bears the signature of the Complainant. The Complainant has not deposed that the contend of above declaration were not explained to him when he signed it.  The Complainant has also not pleaded the said fact in his complaint. Hence, the above citation does not support to the case of Complainant.

13)      Smt. Rashmi Manne, Ld.Advocate for the Complainant has further argued that, there was responsibility of the Opposite Party Bank to get itself satisfied with the signature of the Complainant by tallying the signature of transactions dtd.08/04/2007.  The Opposite Parties failed to do so hence, Opposite Parties are liable to the claim of the Complainant.  The Ld.Advocate for the Complainant in support of her argument relied on the judgment delivered by our Hon’ble State Commission in First Appeal No.A/09/1252 Standard Chartered Bank & Ors. V/s. Anil Shridhar Supnekar, decided on 20/06/2012.  In the said case the Hon’ble State Commission observed that -

          “District Forum rightly handed out a verdict in favour of the Complainant placing emphasis on the fact that when the District Forum had examined the signatures of Charge-slips with reference to the admitted signature of the Complainant maintained by the Bank, District Forum found that the signature found on the Charge-slips did not tally with the specimen signature. Therefore, District Forum rightly allowed the complaint.”

           In the said case District Forum had given findings that bank had not properly compared signature of the Complainant found on the Charge-slips with reference to specimen signature maintained in the bank and therefore, it was guilty of deficiency in service.  District Forum had made comparison of signatures found on the Charge-slips with reference to specimen signature maintained by the bank of the Complainant and held that bank had failed in making comparison diligently with regard to signature of the Complainant on the Charge-slips.  In the present case the Complainant has not called the original charge-slips of the transactions dtd.08/04/2007 and the specimen signature of the Complainant maintained by the bank, therefore, the question of comparison of said signatures by this Forum under Sec.73 of the Indian Evidence Act, does not arise.  The Opposite Parties have produced three xerox copies of charge-slips of transaction dtd.08/04/2007. The admitted signatures of Complainant are on the Vakalatnama and complaint.  It is not the case of denial of signature therefore, original specimen signature of the Complainant maintained by the Opposite Party was necessary for comparison with the signatures of original charge-slips. It is pertinent to note that the Complainant was made aware of the disputed 4 transactions by the Opposite Parties prior to submitting fax by the Complainant to the Opposite Parties on 08/04/2007 at Exh.B filed with complaint is not disputed and till that time the amounts of the said transactions were debited to the credit card account of the Complainant.  It is also a fact that, the disputed four transactions had occurred on different location and when the said transactions are occurred the Opposite Parties were not directly involved and the question of verifying the signatures of the Complainant on charge-slips of the transactions of which xerox copies are produced by the Opposite Parties did not arise.  Thus, the cases and the observations relied by the advocate for the Complainant therein are not anyway helpful to the Complainant to grant the claim made in the complaint.      

14)      Smt. Anita Marathe, Ld.Advocate for the Opposite Parties has argued that, on 08/04/2007 all the transactions have been effected on the credit card of the Complainant prior to 6.19 p.m.  The Complainant has reported the loss of his credit card to the Opposite Party No.1 at 6.19 p.m. on 08/04/2007. The said transactions took place prior to the reporting of loss of card to the Opposite Party No.1, hence, Opposite Parties are not liable to the claim of the Complainant.  The Ld.Advocate for the Opposite Parties in support of her argument relied on the judgement delivered by our Hon’ble State Commission in First Appeal No.A/09/140 Mr. Ravikant Bohra V/s. the HongKong and Shanghai Banking Corporation Ltd., decided on 28/01/2014 in the said case the credit card of the Complainant was lost about December, 2003 to January, 2004. On 09/01/2004 and 27/01/2004 the Complainant had sent fax to the bank and informed the loss of credit card and requested the block the same, but the bank did not take step to block the same. The said card was misused for the transactions amounting to Rs.90,000/-. The bank was demanding the amount from the Complainant.  Hence, the Complainant had approached the District Consumer Forum.  The District Forum held that there is no deficiency in service on the part of the bank and dismissed the complaint.  The Complainant had approached to the Hon’ble State Commission.  The Hon’ble State Commission observed that -

             “Admittedly, the Complainant proceeded abroad on 10/01/2004 till 18/01/2004.  The transactions reported after the loss of the credit card are during the said period.  Hence, sending of the fax message by the Appellant to the Respondent Bank on 09/01/2004 is a material evidence in the matter.  We have directed the Advocate for the Appellant to adduce the evidence that they have sent a fax on 09/01/2004.  The Ld. Counsel was unable to produce the same.  Even in the letter dtd.27/01/2004 there is no reference of alleged fax message dtd.09/01/2004. The District Forum after going through the complaint and the evidence adduced by both the parties came to the conclusion that there is no deficiency in service on the part of the Respondent Bank and dismissed the complaint.  We do not find any substance or merit in the appeal filed by the Appellant.”

            In the present case we have already held that the Complainant has signed the application form Exh.A, its declaration, terms & conditions.  Hence, the terms & conditions of credit card are binding on the Complainant.  As per the said terms and conditions of the credit card the Opposite Parties are not responsible to the transactions which have been effected prior to reporting the loss of credit card to the Bank. In the present case the disputed transactions have been effected prior to reporting the loss of card to the bank on 08/04/2007. The Complainant was having responsibility to take care of his credit card but it appears that he has not taken the same.  Considering the fact and evidence and in view of the observations made by the Hon’ble State Commission in the above cited case we hold that Complainant has failed to prove that there was deficiency in service on the part of Opposite Parties.

15)      Smt. Anita Marathe, Ld.Advocate for the Opposite Parties has also relied on the judgment delivered by the Hon’ble National Commission in First Appeal No.24/2007, Shri. Bhaskar Sen V/s. M/s. American Express Bank Ltd., decided on 31/07/2007 (reported in (2007) 3 CPR (NC) 89) and the judgment of the Hon’ble Apex Court in Civil Appeal No.4492 of 2000, Life Insurance Corporation of India & Anr. V/s. Smt. S. Sindhu, decided on 04/05/2006, (reported in (II 2006 CPJ 18 SC)).  The facts of above two cited cases and facts of present case may be different but the observations therein do support the case of Opposite Parties.  From the oral and documentary evidence available on record it is clear that the Complainant failed to prove that there was deficiency in service on the part of Opposite Parties but trying to blame them for his own wrong.  In view of this we hold that Complainant is not entitled to the reliefs claimed by him. 

            In the result complaint deserves to be dismissed.  Considering the nature of the complaint both the parties have to bear their own cost of litigation.  Hence, we proceeds to pass following order –

O R D E R

i.         Complaint No.112/2008 is dismissed.

ii.        Both the parties shall bear their own costs. 

iii.       Certified copies of this order be furnished to the parties.