DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 30th day of October 2010 .
Present : Smt. Seena.H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.67/2009 Cyber Link Systems College Road Palakkad Rep. By its Proprietor Jiji Varghese S/o. J.P. Varghese - Complainant (Adv. Ullas Sudhakaran) Vs I C I C I Bank Ltd Udaya Towers Palakkad - Opposite party (Adv. M. Ramesh)
O R D E R
By Smt. Seena.H, President.
Brief facts of complaint
Complainant, the sole proprietor of a concern named Cyber Link System set up exclusively for earning his livelihood by selling computer and accessories entered into agreement with the opposite party to install a credit card swiping machine at the complainant's office. It helps the credit card holders of the opposite party to make payments for the purchases made from the complainant's concern. As per the terms of the agreement opposite party had under taken to credit the complainant's designated account within 2 business days from the date on which the charge slip pertaining to transaction effected with the credit card is received by opposite party. It is submitted that on 24/09/2008, one Ali Mohammed purchased a Laptop and accessories worth Rs.35,700/- from the Complainant concern using credit card issued by opposite party. Complainant swiped the credit card in the equipment and obtained authorization from the opposite party and opposite party cleared the transaction and agreed to pay the amount covered under the charge slip. On 26/09/2008 the said amount was credited to complainant's account. Subsequent to that, on 14/10/2008, another customer purchased a V-Guard UPS - 2 - worth Rs.2500/- and on 17/10/2008 another customer purchased a laptop worth Rs.38,760/- from the complainant's concern. Both the transactions were cleared by the opposite party and it was agreed to credit the amount to the complainant's account/ Complainant submits that opposite party was liable to credit a sum of Rs.41,260/- for the above two transactions. Instead of that opposite party on 18/10/2008 has credited only a sum of Rs.4,600/-. Immediately complainant contacted the opposite party and sought clarifications . Opposite party enquired into matter and after being satisfied about the genuineness of the complainant's case, assured the complainant that the claim would be settled by the opposite party within 2 or 3 days. But opposite party has not settled the same. Complainant sent many letters and e-mails requesting opposite party to release the amount. Even then opposite party has not done any positive steps to settle the grievance of the complainant. Hence the complaint. Complainant prays for an order directing the opposite party to pay complainant a sum of Rs.36,600/- along with 12% interest till date of realization and also to direct the opposite party to close the current account number maintained by the opposite party in the name of the complainant and return the amount standing in credit in the said account to the complainant and take back the swiping machine.
Opposite party filed version contending the following
The agreement between the complainant and opposite party for installing the equipment is admitted by the opposite party. Further admits that on 24/09/2008 credited a sum of Rs.35,700/- to the complainant's account. Subsequently the charge back team of opposite party sought clarification with regard to the genuineness of the said transaction and having found that the said transaction being a suspected fraud, directed the complainant to submit supporting documents to establish that the transaction had actually taken place and the goods were actually delivered to the card holder. But the documents received from the complainant were unclear and hence opposite party has no other means than to debit the amount from the complainants account and as per opposite party it is as per the terms of the agreement itself. Rs.35,700/- involved in the 1st transactions was deducted from the subsequent two transaction. An amount of Rs.960/- was also deducted towards transaction commission and balance amount of Rs.4,600/- was credited to the complainants account. According to opposite party, complainant instead of producing concrete proof regarding the genuiness of the transaction dated 24/09/2008, has opted to file this complaint. It is also submitted that the charge back team who are monitoring the transaction of the equipment has confirmed that the documents provided by the complainant are unclear and hence cannot be presented to VISA MASTER for arbitration, which is the usual procedure is case of dispute with regard to the transaction . Opposite party has also contented that it is a commercial transaction and hence will not come within the purview of consumer disputes.
Both parties led evidence in the form of affidavits. Exhibit A1 to A12 were marked on the side of complainant, out of which Exhibit A2 and A6 were marked subject to proof. Exhibit B1 marked on the side of opposite party. Witness on the side of opposite party was examined as DW1.
Issue that arise for our consideration are: Whether the dispute comes within the purview of Consumer Protection Act? Whether there is any deficiency in service on the part of opposite parties? If so, what is the reliefs and cost?
Issue No.1 Opposite party has contented that since the transaction between the complainant and opposite party is a commercial transaction, it will not come under the purview of the Consumer Protection Act. Complainant in his affidavit has stated that he is running the concern for earning his livelihood. Opposite party has not led any evidence to prove that he is running the concern for commercial purpose . Even the complainant was not cross examined to prove the aspect. Hence we are of the view that the complaint comes under the purview of the Consumer Protection Act.
- 4 - Issue No.2 Going through the complaint, it is understood that all the three transactions on various dates were cleared by the opposite party, but opposite party has withheld the amount of subsequent two transactions stating that the 1st transaction is not genuine.
The question arises whether opposite party has a right to do so? Opposite party has no case that the transaction dated 14/10/08 and 17/10/08 is not genuine. Even then opposite party has withheld the said amount stating the transaction dated 24/09/08 is not genuine. Clause 6.1 of Exhibit B1 provides that subject to the terms of the agreement, the acquiring Bank shall pay in favour of the designated account of the Merchant, the amount mentioned in the charge slip less the sales commission fee within two business days following the day on which charge slips are received by the Acquiring Bank for all the transaction processed and accepted by the Acquiring Bank.
As per the said clause the opposite party is bound to credit the amount within 2 days on receipt of charge slip for all the transaction processed and accepted by the acquiring Bank. So when the opposite party has credited the amount of Rs.35,700/- for the transaction dated 24/09/08, it can only be presumed that opposite party has done so after clearing that the said transaction is genuine. If at all there is any error on the part of the opposite party in clearing the said transaction, complainant is not liable to bear it. Further whether the transactions is a fraud one or not is a not a question to be decided by this forum. Opposite party has contended that the documents produced by the complainant to show the genuineness of the transaction as well documents to establish that the transaction has taken place and goods were delivered to the card holder were unclear and hence opposite party has no other option to debit the amount from the subsequent transactions. Opposite party has not adduced any evidence to prove the above stated contention . Exhibit A1 shows that complainant has actually sold the Laptop to one Ali Muhammed. Exhibit A2 shows that charge slip was also issued.
Further in the answers given for the interrogatories filed by the complainant, it is seen that answers are given such that almost all the responsibilities is upon the - 5 - mediators/charge back team. DW1, the relationship executive of opposite party has also has deposed while examination that the responsibility is with the mediators. It is pertinent to note that opposite party has not raised any such contention in the version for not impleading the said Viza Master/charge backing team. DW1 has deposed that when the customer swipe the machine, an approval message will be given. Immediately amount in the account of the card holder will be kept in suspense account. After settlement programme is done by the merchant with the mediators, amount will be credited to the account of the merchant (Cyber Link). We find that opposite party has no case that amount has not been credited. So it is clear that without going through the procedures as narrated, amount will not be credited. DW1, has further deposed that the amount debited has been given back to the actual card holder, for which no evidence is produced by opposite party.
In view of the above stated facts and circumstances of the case, we are of the view that the act of opposite party amounts to deficiency in service and complainant is entitled for relief.
In the result complaint allowed and we order the following. Opposite party shall pay complainant an amount of Rs.36,660/- being the amount debited along with compensation of Rs.5,000/- and Rs.1,000/- as cost of the proceedings. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% per annum from the date of order till realization.
Pronounced in the open court on this the 30th day of October, 2010
PRESIDENT (SD)
MEMBER (SD) MEMBER (SD)
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APPENDIX Date of filing: 27/05/09 Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party DW1 - Exhibits marked on the side of the complainant Ext. A1 – Copy of Invoice No.644 dated 24/09/2008 of Cyberlink Systems Ext. A2 – Copy of Debit Sale receipt of ICICI Bank
3. Ext . A3 – Copy of Invoice No.704 dated 14/10/2008 of Cyberlink Systems 4. Ext. A4 – Copy of Debit Sale receipt of ICICI Bank 5. Ext. A5 – Copy of Invoice No.715 dated 17/10/2008 of Cyberlink Systems 6. Ext. A6 – Copy of Debit Sale receipt of ICICI Bank 7. Ext. A7 – Copy of summary of Accounts of ICICI Bank as on 30/09/2008 8. Ext. A8 – Copy of summary of Accounts of ICICI Bank as on 31/10/2008 9. Ext. A9 - Copy of registered letter dated 27/11/08 Ext. A10. Copy of e-mail letter dated 31st December 2008. Ext. A11 - Copy of e-mail letter dated 5th January 2009
12. Ext. A12. - Copy of e-mail letter dated 14th January 2009
Exhibits marked on the side of the Opposite Party Ext. B1 – Copy of Merchant Establishment Agreement of ICICI Bank
Forums Exhibits
Nil
Costs Rs. 1,000 (Rs. One thousand only)
| | [HONORABLE Smt.Bhanumathi.A.K] Member[HONORABLE Smt.Seena.H] PRESIDENT[HONORABLE Smt.Preetha.G.Nair] Member | | 
