Punjab

Rupnagar

CC/22/97

Gautam Sawraj - Complainant(s)

Versus

ICICI Bank Ltd. and others - Opp.Party(s)

17 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ROPAR

 

                                                                   Consumer Complaint No.97 of 2022

                                                                   Date of Decision:  17.03.2023

 

Gautam Sawraj son of Sh. VK Sawraj, resident of House No.101, Giani Zail Singh Nagar, District Rupnagar 

                                                                                      …..Complainant

                                                 Versus

1. ICICI Bank Limited, bela chowk Ropar through its Branch Manager
2. ICICI Bank Limited, ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400051, through its Managing Director and CEO
3. Mr. Sandeep Bakshi, Managing Director and Chief Executive Officer, ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400051
4. Manager Operations, ICICI Bank Limited, ICICI Bank Tower, C Wing, Autumn Estate, Near Candivali Studio, Chandivali Farm Road, Opp Mhada Colony Candivali, Andheri (East), Mumbai 400072
5. Mr. Atul Aora, General Manager (NCR), NBCC Place, Bhishma Pitamah MG, Lodhi Road, Delhi-110003
6. Mr. Vishal Batra, Joint General Manager (Rest of North), NBCC Place, Bhishmapitamah MG, Lodhi Road, Delhi-110003

 

(Complaint under the provisions of Consumer Protection Act)

QUORUM:

 

                   KULJIT SINGH, PRESIDENT

                   RAMESH KUMAR GUPTA, MEMBER

 

ARGUED BY:

 

For complainant:            Gautam Sawraj, complainant in person

 

For Ops:                         Sh. Ajay Talwar, Advocate  

         

 ORDER

PER KULJIT SINGH, PRESIDENT

 

1. The present complaint has been filed by the complainant on the averments that the complainant is seriously aggrieved of the action of the Ops is denying the lawful claim of the complainant by indulging in unfair trade practices and complete infraction of the guidelines issued by the RBI, which action on the part of the Ops amounts to deficiency in services. The complainant was offered credit card facility of the ICICI Bank having credit card No.4315-8101-9268-7006 with validity period from May 2019 to May 2023. The complainant was/is availing this credit card facility of the ICICI Bank with all care, caution and circumspection since the date of its issue. The complainant received an SMS from the ICICI Bank regarding use of hte credit card at the merchant shop, viz Baljeet Telecom, Gandhi Nagar, Delhi, sometime at 5.40 PM on 5^th September 2021 for an amount of Rs.43,900/-. Contrarily, the complainant was coming from his hometown Hajipur (District Hoshiarpur) to Rupnagar, which fact is clear as a board daylight from the timeline on Google Maps. At this juncture itself, it is most relevant to point out that the original credit card is still in possession of hte complainant. From the narrative given in para No.2 above, it becomes abundantly clear that the unlawful transaction has been undertaken by some fraudster/scamster by purported credit card cloning. Immediately on receipt of the SMS from the ICICI Bank, the complainant prudently and promptly raised a dispute by reporting the issue to the customer care and additionally conveying the issue to the other helpline numbers given in the SMS. Request of the complainant was registered, which fact can be elucidated from the email communication made by the ICICI Bank on 5^th September 2021 at 5.56 PM, just after 16 minutes from the alleged unlawful transaction. On the one hand, the transaction by cloning of the credit cards, now a days are very frequent and the innocent customers of the bank, like the complainant have been duped of their hard earned money worth crores for no fault attributable to them, on the other hand, surprisingly, the banks has always been a silent spectator. Notably to mention here that no cloning of the credit card is not possible without the inside involvement of the banks and the silence of hte banks in curbing these unlawful transaction speak voluminous about their acquiescence with the predators of crime at the financial loss of the customers, indeed it is a matter of deep regret that the complainant had also suffered great humiliation, besides financial loss, by the continuous silence of the ICICI bank in protecting their customers from such crimes affecting the very economy of the country. It is further averred that as it may be Reserve Bank of India, a statutory regulatory body, has issued circular DBR no.Leg.BC.78/09.07.005/2017-18 dated July 6, 2017 directing all Scheduled Commercial Banks to ensure measures for curbing unauthorized electronic transactions (fraud) with the subject “Limiting Liability of Customers in Unauthorized Electronic Banking Transaction”. Additionally liability of the customers has also been made Zero/Limited. Para No.6 of the said circular would bear reproduction:-
6.  

(i) Contributory fraud/negligence/deficiency on the part of the Bank (irrespective of whether or not the transaction is reported by the customer)

(ii) Third party breach where the 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 the unauthorized transaction.

It is no longer an issue that the guidelines/directions issued by the Reserve Bank of India are binding under Section 35 A of the Bank Regulation Act leaving not an iota of doubt that the complainant could not be held responsible for such deficiency, which apparently lies with, or attributable to, the ICICI Bank. No response whatsoever, was received from the Ops and left with no other alternative the complainant was constrained to serve a legal notice through his counsel, which was put in transaction through registered post on 5.4.2022. Due to this act and conduct of the OPs, the complainant has suffered mental, physical and monetary loss.

2. Upon notice, Ops No.1 to 6 have appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections; that the present complaint is bad for mis joinder and non joinder of the necessary parties; that the complaint of the complainant is not maintainable; that the complainant has no locus standi to file the present complaint; that this Hon’ble Commission has no jurisdiction to entertain and decide the present complaint; that no cause of action has ever accrued to the complainant against the answering Ops; that there is no deficiency in service on the part of the answering Ops. On merits, it is stated that the complainant has availed a credit card bearing No.4315-8101-9268-7006 from ICICI Bank with a credit limit of Rs.50,000/- with validity period from May 2019 to May 2023. The complainant disputed the transaction dated 05.09.2021 at 17:40:13 of Merchant name Baljeet Telecom, Merchant Delhi of Rs.43,900/-. Post receipt customer’s complaint by answering OP at customer care department, we have initiated the investigation vide service request number SR773757951 dated 5.9.2021. However, request has been closed due to incomplete or non receipt of documents. We had received the complaint again on 30.09.2021 and 16.10.2021, which was registered vide request SR779382743 and SR782954360 respectively. The said SRs were closed due to incomplete or non receipt of documents and regarding the same intimation letters were sent to the customer communication address. Subsequently, we have raised a requests SR792171001 dated 3.12.2021 towards which temp credit processed on 4.12.2021. Further chargeback raised on 21.12.2021 with TAT of 35 days as per Visa/Master guidelines. However, as per closure, for the disputed transaction customer is liable. This is a skimming case. The disputed transaction are Samsung Pay transaction and the OTP for registering mobile number. Customer has done with his credit card account. Customer had followed the instruction of the third party, post which the disputed transaction took place on his card. On 5.9.2021, customer received IVR call pertaining to the disputed transactions. He got message in IVR call that 01 transactions for Rs.43,900/- was done on his credit card. The card was blocked on 5.9.2021. whenever a customer raises a dispute owing to an unauthorized transaction, bank first provides shadow credit post which investigation takes place. The turn Around for the same is 90 days as per RBI guidelines. Based on the investigation, the final decision of debit/credit is taken. If the customer is found liable, the amount is reversed from the customer’s account and the Bank does not have any right to raise dispute on second factor authenticated transaction. In this case, the interim chargeback credit was processed on December 09,2021 and as per the investigation, the disputed transaction is a second factor authenticated transaction. These are online transactions wherein customer visits the respective merchant website and executes the transaction. This requires his credit card number, card verification value, expiry date on his credit card and OTP. These details are mandatory for effecting the said online transaction. It is further stated that as per records of the bank, the said disputed transaction was affected on his credit card which had undergone a Secure Authentication, which is a second level authentication specifically built in for online transactions done through Merchant Websites on the basis of OTP send on the mobile of the customer. It is further stated that OTP is purely personal and privy to the customer and would not be known to anybody, unless compromised otherwise. The card holder is responsible for the security of his/her card along with his/her OTP and should therefore take all possible steps towards ensuring the safe keeping thereof. The bank does not incur any financial liability arising out of the misuse thereof by unauthorized persons. As per our records, the SMS alert towards the said transaction was sent on his registered mobile number i.e. 919501110554 as per details given below:-

“ It is submitted that SMS messages send by the Bank regarding sending OTP on his mobile number are attached with the complaint by complainant himself. Further, as the transaction was qualified by information strictly personal to complainant, the bank is therefore precluded as per industry guidelines to repudiate the transaction with the Merchant on the basis of subsequent dispute by customer. As per RBI guidelines dated 6.7.2017 which makes customer accountable in cases where the loss is due to negligence by a customer. The extract from the circular is mentioned below for your ready reference:-

“In cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss”

Any authorized electronic banking transaction which has been processed post second factor authentication is knownonly to the customer.

In view of the facts mentioned above, it is clear that there is no deficiency in service, negligence or unfair trade practice on the part of the answering Ops. The answering Ops have every right to recover the amount spent by the customer by using his credit card along with charges and interest as applicable, and customer is liable to make the payment. It is further stated that the complainant has filed the complaint before the Banks Ombudsmen and complaint is rejected under clause 16(2) (a) of the Reserve Bank-integrated Ombudsman Scheme 2021: In the opinion of the Ombudsman, there is no deficiency in service on the part of the answering Ops.Ops No.1 to 6 prayed that complaint is without any merits and deserves to be dismissed with cost.

3.  In order to prove the case, the complainant has tendered documents Ex.C1 to Ex.C41 and closed the evidence. On the other hand, the learned counsel for the Ops No.1 to 6 has tendered duly sworn affidavit of Sh. Arshdeep Kumar, authorized signatory of ICICI bank for OP1 as Ex.OP1 along with documents Ex.OP2 to Ex.OP4 and closed the evidence.   
4. We have heard the learned counsel for the parties and have gone through the complaint file along with documents very minutely.
5. The Bench has come to the conclusion that no skimming is involved in this complaint because unless otherwise the holder of the credit card hands over the card to somebody else only then the skimming is possible, which is not in the present case. As far as the withdrawal of the money from the credit card is concern a settled procedure is required i.e. CVV code, expiry date and OTP to activate the withdrawal. Unless otherwise, these mandatory steps are not followed till then withdrawal of the money from the credit card is not possible. In this case, all the steps have been followed by the complainant only then the money has been withdrawn so there is no negligence and unfair trade practice on the part of the Ops. Only the complainant is responsible for any wrong doing.
6. As per the facts in the above paras, the complaint of the complainant is hereby dismissed with no order as to cost as the Consumer Protection Act is a benevolent legislation for the benefit of the Consumers. Free certified copies be sent to the parties, as per rules. The file be indexed & consigned to the record room.

                                             (Ramesh Kumar Gupta)                                                         (Kuljit Singh)

                                               Member                                                                                       President