IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 39/10 DATED 23.04.2010<br /> ORDER<br /> <br /> Complainant S. Jayakumar, Partner, M/s Kumar Brothers and Jewelers, # 95, D.D. Urs Road, Mysore.<br /> <br /> (By Sri. K.M, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, ICICI Bank Ltd., RAPG, Mysore Main Branch Office, # 34/2, 3, 4, 7, 1st Floor, D. Shetty Mansion, Ramavilas Road, Mysore. <br /> (By Sri. T.M., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 06.02.2010<br /> Date of appearance of O.P. : 25.02.2010<br /> Date of order : 23.04.2010<br /> Duration of Proceeding : 1 Month 29 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party seeking direction to pay in all Rs. 34,494/- alleging deficiency in service and cost of the proceedings.<br /> <br /> 2. In the complaint amongst other facts it is alleged that, the complainant is dealing with jewellery business. To facilitate the customers, the complainant has got EDC machine of the opposite party to accept credit and debit cards. In the usual course of transaction on 05.11.2008 a customer K.P. Bhushan purchased some articles from the complainant and made payment of Rs.20,100/- and Rs.4,900/- through his debit card No. 5267010650002666 by raising charge slips and ME letters. On 06.11.2008 he purchased some more articles worth Rs.18,800/-. All the three sums were credited into the current account of the complainant. But in the month of February 2009, opposite party has withdrawn a sum of Rs.16,043.93 paise, without consent of the complainant. The opposite party has also not credited a sum of Rs.4,150/- in respect to the transaction of another customer dated 21.02.2009, for which also charge slips bill ME letters were raised. Till date this amount has not been credited by the opposite party into the account of the complainant. The complainant raised objections regarding said unauthorized acts of the opposite party. The opposite party told that, original card holder and some other persons misused the lost card and the complainant was called upon to furnish original charge slips, bills and ME letters. It was assured by the opposite party to rectify the mistake by crediting the amount. In spite of repeated request, the opposite party has not credited the amount into the account of the complainant. It amounts to deficiency in service.<br /> <br /> 3. The opposite party in the version contended that, the complainant is not a consumer. Also, it is contended that, the transaction claimed by the complainant is not genuine one. It is stated that, the opposite party received the complaint from the card holder Bank, who disputed the transaction of Rs.20,100/- dated 05.11.2009. The opposite party called upon the complainant to furnish the charge slip, supporting bill or invoice by the letter dated 22.02.2009. The complainant failed to provide the same. Accordingly, a sum of Rs.20,100/- was debited and it was intimated to the complainant. It is stated that, the complainant is associated with the opposite party has a merchant establishment. Accordingly, the complainant may accept the card as a mode of payment. If the photograph and the ID as well as, signature does not tally, complainant not to accept the same. There was some fraud played while using the said card and the said card holder has denied the transaction. When the card holder denies the transaction and satisfies the Bank that, fraud is committed that the card is misused it is the duty of the opposite party to withdraw the amount. Further it is contended that, card holder is a necessary party. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced various documents. On the other hand, officer of the opposite party Bank has filed his affidavit and produced certain documents. We have heard the arguments of both the learned counsel, for the complainant and the opposite party. We have perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- Admitted facts need not be repeated here. The opposite party has contended that, the complainant is not a consumer and hence, cannot maintain the complaint before the Forum. The records clearly establish relation between the complainant and the opposite party as of customer and the Bank. The opposite party Bank has provided service to the complainant. For the complainant a ruling reported in III (2009) CPJ 153 has relied upon. In this ruling, it is held that banking service is provided to commercial concern falls within ambit of “service” under the Consumer Protection Act. In view of the law laid down in this ruling, contention of the opposite party that, the complainant is not a consumer, cannot be accepted.<br /> <br /> 8. It is important to note that, admittedly the complainant has facility of EDC machine of the opposite party to accept credit and debit cards of the customers. In 6th paragraph of the version it is stated by the opposite party that, the complainant is associated with the opposite party has a merchant establishment. Further it is stated that, “As a merchant establishment, the complainant may accept the card as mode of payment”. In the case on hand, at the out set, admittedly as per the transaction pertaining to the card of one Mr. K.P. Bhushan of Rs.20,100, Rs.4,900/- and 18,800/- were credited into the current account of the complainant. Hence, when once the card has been accepted as mode of payment and the amount was credited by the opposite party into the account of the complainant, without consent or knowledge it cannot withdraw any amount. At the cost of repetition, the card having been used as mode of payment and once payment is made, unless and until to whom the payment is made, that person consents to refund or return any amount, the opposite party Bank cannot debit or withdraw the amount only because account of the complainant is with it and there is balance available.<br /> <br /> 9. It is relevant to note that, though the opposite party contended that, the card holder raised dispute and that some fraud was played in using the card, the opposite party Bank without consent of the complainant/account holder cannot withdraw or debit any amount from the account of the complainant. If such practice is allowed and card holder soon after purchase of the goods, may raised dispute with the Bank and in such case of the amount is withdrawn or debited, entire banking system will be affected materially, without when knowledge and consent debiting or withdrawing the amount from the account of the complainant certainly amounts to deficiency in service.<br /> <br /> 10. Further, it is relevant to note that, through the debit card in question on 05.11.2008 two purchases were made. On 06.11.2008 there was one more purchase. Totally of Rs.20,100 + 4,900 + 18,800. But the opposite party contending that, the card holder raised dispute and there was some fraud opposite party has not withdrawn or debited the said entire amount, but only Rs.20,100. So also it is relevant to note that, said withdrawal pertains to the transaction dated 05.11.2008. There is no dispute as regards third transaction dated 06.11.2008. If really as contended that, card was lost or some fraud, then it must also pertains to subsequent transaction and in respect of entire amount. More over from the documents on record, it appears that, card holder had given the card to some other person may be his relative. Further, it is alleged balance of Rs.1.16 lakhs was withdrawn by the fraudulent purchase within 5 days from 03.11.2009. Purchases pertaining to complainant are dated 05.11.2008 and 06.11.2008.<br /> <br /> 11. The opposite party contended that, after the card holder raised dispute complainant was called upon to produce charge slips and ME letters, but the complainant did not furnish. But from the records, as could be seen from the endorsement and the letter at page 56 of the file, in fact, opposite party Bank has put the seal and officer has signed stating received original charge slips, bill, copy and ME letters. Hence, the contention of the opposite party that, the complainant did not produce the same, is false.<br /> <br /> 12. The complainant further has alleged that, apart from the transaction of Mr. K.P. Bhushan another person transacted on 21.02.2009 worth Rs.4,150/-, for which also charge slip, bill and ME letters were raised, but that amount ought to have been credited into the account of the complainant, but that has not been done. Considering the fact and the admitted relation between the parties this also certainly amounts deficiency in service.<br /> <br /> 13. The opposite party further contended that, the card holder is not a party and hence, the complaint is not maintainable. The complainant has no dispute or no claim at all against the card holder. Hence, he is not a necessary party.<br /> <br /> 14. Accordingly, our finding on the point is partly in affirmative.<br /> <br /> 15. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite party is hereby directed to credited a sum of Rs.16,044/- and Rs.4,150/- into the Current Account of the complainant along with interest at the rate of 12% p.a. from the date of 25.05.2009, within a month from the date of the order.<br /> 3. Further, the opposite party shall pay compensation of Rs.5,000/- to the complainant towards mental agony and other inconvenience caused, within a month from the date of the order, failing which the amount will carry interest at the rate of 12% p.a.<br /> 4. So also the opposite party shall pay a sum of Rs.2,500/- to the complainant towards cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd April 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />