BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

                       C.C.No.1044/2012     

DATED THIS THE 1^st JULY 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                Sri.P.Jitendra Rao,

                                                S/o. Sri.P.Narendra Rao,

                                                Aged about 36 years,

                                                Residing at No.218,

                                                2^nd Main, Kasturinagar,

                                                Bangalore-43                

V/s

Opposite party: -          

                                                ICICI Bank Limited,

                                                (A public Limited Company,

                                                Incorporated under the Indian

                                                Companies Act)

                                                Credit Card Division,

                                                Having its office at ICICI towers,

                                                1^st Floor, West wing, No.1,

                                                Commissariat Road,

                                                Bangalore-01                  

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to withdraw the bill showing outstanding amount of Rs.49,502.77 and subsequent interest levied in the bill pertaining to the credit card bearing no.4477-4746-0524-2109 and to refund a sum of Rs.2,500=00 together with interest at 24% p.a. and to pay a sum of Rs.20,000=00 towards compensation and to pass any such orders as deemed fit, under the facts and circumstances of the case, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant is a consumer under the OP being a holder of credit card bearing no.4477-4746-0524-2000 issued by the OP bank having credit card upto Rs.50,000=00 as a spouse of the primary card holder, wife of the complainant Smt.Sapna has been issued an add-on card bearing no.4477-4746-0524-2109 by the OP bank having credit card limit upto Rs.50,000=00. On 31-1-2012 wife of the complainant Smt.Sapna was travelling from Luxemburg to Bangalore city Via Parris. During her travel she alighted at Paris international airport to change her flight and left Paris within 30 minutes, and at that time, the complainant had received a SMS to his mobile phone informing that the add-on card belonging to his wife was used for Rs.49,502.77. Immediately after receiving said message the complainant who was shocked, called his wife and enquired about the transactions, then the complainant found that the purse of the complainant’s wife in which she was carrying the above said add-on credit card was stolen by some body and the card was used by the thief for the said amount. Immediately, the complainant called the customer care of the OP bank and requested the bank to block the credit card and further lodged a dispute with the customer care, stating that the said transaction was a fraudulent and not been authorized by him or by his spouse, so requested the OP to proceed for investigation. After receipt of the said request for dispute, the OP bank issued a letter dated 22-2-2012 to the complainant stating that, it was not a credit card swipe, but the said transaction was online purchase, the said fraudulent transaction was indeed a 3D authenticated transaction, making a false allegation that the complainant has compromised on the password and unduly making him liable to make the payment. The complainant being sure about the said fraudulent transaction and the said transaction cannot be a 3D authenticated and the password cannot be known by a third party, the complainant issued another email immediately dated 28-2-2012, denying the allegation on the complainant and questioned the investigation. Consequently the complainant has also lodged a complaint over phone banking bearing service. 3D authentication is a system provided for asking additional authentication apart from the information visible on the card from the card hold while approving the transaction. Subsequently the OP has sent another email on 17-3-2012 stating that the transaction was not a 3D transaction. These statements of the OP clearly shows that the OP bank has not asked for 3D security unique password to proceed with the transaction and approved the transaction without complying the security measures and guidelines issued by the RBI for online transactions. The RBI under whose guidelines the OP is carrying out the business has issued a circular dated 18-2-2009 which reads as follows: “It would be mandatory to put in place with effect from August 2009. I) A system of providing for additional authentication based on information not visible on the cards for all on line card not present transactions except IVR transactions. The said circular is applicable to all scheduled commercial banks, the OP is bound to provide its services to its customers in compliance with all the rules and regulations provide by the RBI, but the OP has grossly failed and neglected to follows the above guidelines issued by RBI. The alleged transaction was carried out due to the negligent act of the OP bank, so there is deficiency of service on the part of the OP. In order to cover up their negligent act, instead of investigating the matter, OP has sent a bill to the complainant stating that he is due a sum of Rs.49,502.77 on his credit card. Neither the complainant nor his wife have used the card for any purchase or for any online transaction, the alleged transaction was not at all authorized by the complainant or by his wife, and the transaction was approved without securing the unique 3D password, so the complainant is not responsible and not liable for the fraudulent transaction. The complainant got issued a legal notice to the OP on 5-4-2012, but the OP after receipt of the notice has neither withdrawn the said bill nor given reply to the said notice. Instead of taking steps to investigate as to how the card was misused. The complainant is a customer of OP from several years and has never made any delay in paying the due amount to the OP. The said fraudulent transaction was approved due to the negligent act of the OP, neither the complainant nor his wife has approved the said transaction, so the complainant is not entitled to pay any amount to the OP. Hence, the present complaint is filed.

          3. After service of notice, the OP has appeared through its counsel and filed objection contending interalia as under:

          The complaint of the complainant is not maintainable, and the complainant has not come up with clean hands. The OP bank is a registered under Companies Act. The complainant was the holder of the credit card no.4477 4746 0524 2000 and his wife add-on card no.4477 4746 0524 2109. On 31^st January, the add-on card was used by the complainant’s wife for an amount of Rs.49,502=00. Subsequently as the complainant received the message about the usage of his wife’s credit card, the complainant called the bank’s customer care to block the card, stating that it was a fraudulent transaction. The OP has informed the complainant that the add-on credit card was used for an online purchase, which had undergone a 3D authentication. The 3D secure PIN is purely personal and only the card holder is aware of it. A 3D authenticated transaction will be successful only if the card holder has compromised on the information given by the card holder. The same was informed to the complainant vide letter dated 22-2-2012. The complaint is liable to be dismissed for non joinder of parties. In the absence of wife of complainant being the complainant, this case ceases to exist, if there is a misuse of the complainant’s wife credit card, then she should have lodged a policy complaint before the jurisdictional police station. No such actions had been taken by the complainant, which goes to prove the malafide intentions of the complainant. The OP has complied with the security measures and guidelines issued by the RBI for online transaction, so there is no negligence on the part of the OP in discharging their duties and there is no deficiency of service on the part of the OP. The allegation of the complainant about threatening the complainant and his family members is totally denied as false. All the allegations and contentions of the complainant are denied. Hence, it is prayed to dismiss the complaint with cost.

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the alleged transaction was carried out due to negligent act of OP, and there is deficiency of service on the part of OP?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

Point no.1, the complainant is not

entitled to any relief as prayed in the 

Complaint  

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced copies of documents as Document no.1 to 8 and also produced copy of passport. On the other hand, one Hamsa Nandini authorized officer and manager working in OP office has filed her affidavit on behalf of the OP and produced one copy of letter dated 22-2-2012. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 

7. One P.Jitendra Rao, who being the complainant has stated in his affidavit that, he is having credit card bearing no.4477-4746-0524-2000 issued by the OP bank having credit card limit upto Rs.50,000=00 and his wife has been issued an add-on card bearing no.4477-4746-0524-2109 by the OP bank having credit card limit upto Rs.50,000=00. On 31-1-2012 his wife Smt.Sapna was travelling from Luxemburg to Bangalore city Via Paris. During her travel she alighted at Paris international airport to change her flight and left Paris within 30 minutes, and at that time, he had received a SMS to his mobile phone informing that the add-on card belonging to his wife was used for Rs.49,502.77. Immediately after receiving said message he was shocked and enquired about the transactions with his wife, and he found that his wife’s purse in which she was carrying the above said add-on credit card was stolen by some body and the card was used by the thief for the said amount, and  immediately, he called the customer care of the OP bank and requested to block the credit card and lodged a dispute with the customer care, stating that the said transaction was a fraudulent and not been authorized by him or by his wife. After receipt of the said request for dispute, the OP bank has issued a letter dated 22-2-2012 to him stating that, it was not a credit card swipe, but the said transaction was online purchase, the said fraudulent transaction was indeed a 3D authenticated transaction. He being sure about the said fraudulent transaction and the said transaction cannot be a 3D authenticated and the password cannot be known by a third party, and he issued another email immediately dated 28-2-2012, denying the allegation of the complaint and questioned the investigation, and he had also lodged a complaint over phone. In fact, 3D authentication is a system provided for asking additional authentication apart from the information visible on the card. Subsequently the OP sent another email on 17-3-2012 stating that the transaction was not a 3D transaction, and this clearly shows that the OP not asked for 3D security unique password to proceed with the transaction and approved the transaction without complying the security measures and as per the guidelines issued by the RBI, the OP is bound to provide its services to its customers in compliance with all the rules and regulations provided by the RBI, but the OP has grossly failed and neglected to follow the guidelines issued by RBI. The alleged transaction was taken place due to the negligent act of the OP, so there is deficiency of service on the part of the OP. Neither he nor his wife have used the card for any purchase or for any online transaction, and the transaction was approved without securing the unique 3D password, so he is not entitled for the fraudulent transaction that it was proved without the authorization of the holder of the card. After receipt of the bill, he got issued a legal notice to the OP, but the OP has not complied the notice. On 12-4-2012 he has paid a sum of Rs.2500=00 as a minimum account due against the said bill. When he went to work the employee of OP side threatened his family members that, they are going to put his name in defaulters list and CIBIL. So he is not liable to pay any amount to the OP, so the present complaint is filed, the complaint be allowed and pass as order as prayed for. So also the complainant’s wife has filed her affidavit following the evidence of the complainant.

8. By a careful reading of the complaint and evidence of the complainant as mentioned supra, it is no doubt true that, the complainant has given his evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the evidence of the complainant is supported by any documentary evidence or not. Document no.1 of the complainant is the copy of email of complainant dated 31-1-2012 addressed to OP stating that, the transaction for EUR 728.95 dated 31-1-2012 is a fraudulent and not authorized by him or his wife and requested the OP to proceed for investigation. Document no.2 is the copy of letter of OP dated 22-2-2012 stating that transaction dated 31-1-2012 has been effected for on line payment using her credit card no.2109 and the transaction was undergone 3D secure authentication and it is purely personal and only the card holder is privy to it and according to the guidelines the bank is precluded from repudiating the transaction, the OP regrets their inability to the claim of the complainant’s wife and requested her to approach the statutory regulatory/regulatory authority. Document no.3 is the copy of email of complainant addressed to OP bank stating that, if 3D secure route was successfully used by the thief then the bank has compromised on the secure safe way and he totally disagree with response of the OP and requested for further investigate. Document no.4 is the copy of email letter of customer service officer of OP addressed to complainant stating that, the transaction dated 31-1-2012 is not 3D authenticated transaction. Document no.5 is the copy of RBI to all banks dated 18-2-2009 stating that, it is mandatory to put additional authentication/validation with effect from 1-8-2009. Document no.6 is the copy of bill issued by OP for Rs.49,502.77 dated 31-1-2012. Document no.7 is the copy of legal notice of complainant issued to OP dated 5-4-2012 praying to withdraw the credit card bill and interest portion, and online transaction was made with negligence of OP and since the OP has failed to act as per the guidelines of RBI. Document no.8 is the copy of acknowledgement card and postal receipt for having served notice on the OP. The complainant has produced the passport copy of his wife and boarding pass.

          9. By a careful reading of the complaint and evidence of complainant and his wife, it is made to understand that, both in the evidence of complainant and evidence of complainant’s wife, it is specifically stated that, while the complainant’s wife was proceeding for security check, the thief must have stolen her purse and used the card. But unfortunately, no police complaint as such was filed either by complainant’s wife or by the complainant immediately on 31-1-2012 or thereafter, for the reasons best known to them. This is all about the evidence of complainant.

10. At this stage, it is relevant to have a cursory glance at the material evidence of the OP. One Hamsa Nandini, who being the Manager and authorized officer working in the OP office has stated in her affidavit by way of evidence that, the complainant was the holder of the credit card no.4477 4746 0524 2000 and his wife Mrs.Sapna Sreekantaiah was issued an add-on card no.4477 4746 0524 2109 on 31-1-2012. The complainant received the message about the usage of his wife’s credit card, and the complainant called the bank’s customer care to block the card, stating that it was a fraudulent transaction, their bank has informed that, add-on credit card was used for online purchase, which had undergone 3D authentication, and it is purely personal and only card holder is aware of it, and the same was informed to the complainant’s wife vide their letter dated 22-2-2012, the complainant in order to avoid payment of Rs.49,502=00 has filed this false complaint. Since, the complainant’s wife credit card has been stone, so she will be necessary party as a complainant, so the complaint be dismissed for non joinder of parties. The complainant’s wife should have filed the complaint before the police, no such efforts were made by the complainant which shows the malafide intentions of the complainant, and their bank has complied with the security measures and guidelines issued by the RBI, so there was no negligence on the part of the OP and there is no deficiency of service on the part of the OP, so the complaint be dismissed with costs.

11. The OP has produced the copy of letter dated 22-2-2012 issued by the OP to complainant’s wife stating that, the transaction dated 31-1-2012 was online transaction by using her credit card and the said transaction has undergone 3D secure authentication which is purely personal and only the card holder is privy to it and the bank is not responsible for misusing of the card and she may approach the statutory authority concern for investigation. The oral evidence of the employee of OP that alleged transaction dated 31-1-2012 was online transaction by using add-on credit card of the complainant’s wife and it was 3D secure authentication and is purely personal and only the card holder is privy to it is corroborated by copy of letter of OP dated 22-2-2012 produced by the OP.

12. So making careful security of the oral and documentary evidence of both parties as mentioned above, it is made unambiguously clear that, while the complainant’s wife was under taking journey from Luxembourg to Bangalore city, on the way she lost her Add-on credit card and it was used by thief and made online transaction worth of Rs.49,502.77, when the complainant had received SMS to his mobile phone, he came to know about the transaction and disputed the said transaction as fraudulent transaction, and started making the complaint against the OP stating that, the bank has approved the transaction without complying the security measure and guidelines issued by the RBI and he is not liable to pay Rs.49,502.77 and interest. But it is pertinent to note that, neither the complainant nor complainant’s wife has filed any police complaint as such either on 31-1-2012 or subsequent date, immediately after noticing the alleged transaction. No proper explanation as such has given by the complainant either in the complaint or in the evidence for not filing the police complaint in this regard. The complainant’s wife who being the Add-on credit card holder ought to have taken maximum care and caution to preserve her add-on credit card safely. On the other hand, the complainant’s wife lost her add-on credit card during her journey from Luxembourg to Bangalore city, and alleged transaction was made through online by using password of Add-on credit card. The act of the complainant’s wife in not safe guarding her add-on credit card issued by OP properly and not filing the police complaint either by complainant or his wife immediately on 31-1-2012 shows clearly that, the complainant and his wife are negligent and they cannot escape the liability of payment of Rs.49,502.77 and interest. So on account of negligence of complainant and his wife, they are not having any right to blame the OP under the guise of not complying the guidelines of RBI for transaction in question. So, taking the oral and documentary evidence of complainant and compare the same with the material evidence of OP, we are of the considered opinion that, the material evidence of OP is more believable trustworthy and acted upon than the material evidence of complainant, and as such, we are inclined to come to straight conclusion that, the complainant who comes to forum seeking relief has utterly failed to prove this point with convincing material evidence that alleged transaction was carried out due to negligence act of the OP and there is deficiency of service on the part of the OP. So due to paucity of material evidence, we answer this point in a negative.

          13. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No cost.  

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 1^st day of July 2013).

MEMBER                                 PRESIDENT