For the Complainant : Mr. Mishra, Advocate
For the Opposite Party no.1 : M/s. Mannadiar & Co., Advocates
For the Opposite Party no.2 : Mr. Mahesh Shukla, Advocate
Opposite Party no.3 : Ex-parte.
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Opposite party no.1 is Banking Company whereas the Opposite parties no.2 and 3 are Mercantile Establishments dealing in Petroleum Products. The Complainant is account holder of the Opposite party no.1-Bank and was provided with credit cards, which the Complainant and his wife used to swipe for making purchases and availing services. One such credit card possessed by the Complainant was having last four digits-8108.
2 It is the case of the Complainant that he received credit card statement in respect of that card from the Opposite party –Bank in which certain transactions regarding purchase of petrol were entered into in the name of the Complainant alleged to have been purchased from the Opposite party no.2 as well as the Opposite party no.3, separately. Amongst these six transactions were, dated, 10.12.2007 whereas rest of transactions were 31.12.2006. According to the Complainant, as per yearly ritual, the Complainant had gone Jaipur to celebrate 31st December at temple and thus he was not at Bombay. According to the Complainant, above referred credit card was not used by him and the transactions regarding purchase of petrol form the Opposite parties no.2 and 3 – Petrol Pumps were never effected by him. The Complainant then sent communication to the Opposite party no.1 to object debit entries in the credit card statement. The Opposite party no.1 in turn sent communication to the Complainant to inform him that they would enquire with Merchant’s Bank and on getting details would inform the Complainant. However, there was no further communication from the Opposite party no.1-Bank. In the meantime, the Complainant filed complaint with Police Station as well as filed Writ Petition before Hon’ble Bombay High Court seeking directions to the Police Authorities to make investigation into the complaint lodged by the present Complainant. Ultimately, the Complainant filed present complaint against three Opposite parties making allegations of deficiency in service and seeking declaration that the Complainant does not owe any amount to the Opposite party no.1 and recovery of compensation in sum of Rs.1,00,000/-.
3 The Opposite party no.1-Bank filed affidavit of written version of defence and admitted to have issued credit card no.8108. According to the Opposite party no.1, this credit card was used in the transaction of purchase of petrol effected on 10.12.2006 and 31.12.2006 from the Opposite parties no.2 and 3 and the credit card number appears on the swipe slip. It was for the Complainant to take care of his credit card. The Opposite party no.1 –Bank, further, explained that it is for the mercantile establishment to verify the signature on the credit card at the reverse side with the signature on the swipe slip. Thus, the Opposite party no.1 denied to deficiency in service.
4 The Opposite party no.2 filed its affidavit of written version and stated that they had sold the petrol in sum of Rs.6,118/- under the credit card which was in the name of the Complainant and thus they were not guilty of negligence or fraud.
5 The Opposite party no.3, another Mercantile Establishment dealing in Petrol did not appear and remained Ex-parte.
6 The Complainant filed his affidavit of evidence as well as documents. The Opposite party no.1 also filed affidavit of evidence. The Complainant filed written notes of the arguments.
7 We have heard oral arguments of learned advocate for the Complainant as well as Learned advocate for the Opposite parties no.1 and 2. We have gone through the complaint, pleadings, affidavits, documents and written arguments. Following points arises for our considerations and our findings thereon as follows.
Nos. | Points | Findings |
1 | Whether the Complainant has proved that the deficiency in service on the part of the Opposite party no.1 –Bank ? | No |
2 | Whether the complaint is maintainable against the Opposite parties no.2 and 3 ? | No |
3 | Whether the Complainant is entitled to any relief ? | No |
4 | What order ? | Complaint stands dismissed. |
REASONS FOR FINDINGS :-
8 There is no dispute about the fact that the Opposite party no.1-Bank being bankers of the Complainant had issued credit card having last digit no.8108. The Complainant has produced the copy of the credit card statement received from the Opposite party no.1-Bank which shows that on 10.12.2006, there were three transactions of purchase of petrol and amongst them two transactions pertain to the Opposite party no.3-Petrol pump whereas remaining third pertain the Opposite party no.2-Petrol pump. Similarly, there were three transactions of purchase of petrol on 31.12.2006 and amongst them two transactions pertain to the Opposite party no.3 petrol pump whereas third one pertain to the Opposite party no.2 –Petrol pump. The Complainant claims that on 31.12.2006 he was not at Bombay. He also claims that he often makes the purchase of petrol from the Petrol pump –Sachdev Automobiles, Mumbai.
9 The Complainant has produced along with the complaint copies of swipe slip, which were issued by the mercantile establishment. On going through the same, it is seen that on both slips credit card no.8108 appears. Name of the Complainant also appears. Vehicle no.MH-02-WA-6676 appears on this slip, which is hand written. It is not in the affidavit of the Complainant that this vehicle does not belong to him. The Complainant has not explained as to how the credit card possessed by him was being used to make the purchase of petrol under these transactions. According to the Opposite party no.1-Bank as per practice as well as credit card agreements, it is for the credit card holder to take care about the security of the credit card and to see that it does not go into the custody of any third person. The Opposite party no.1 in its written version of defence paragraph no.8-h has referred to this aspect and has stated that the Complainant has not explained as to how any stranger had got access to the Complainant’s credit card. The Opposite party no.1 has denied its role in the transaction which has taken place as mercantile establishment.
10 Now, on issuing the credit card, the role of the Opposite party no.1 was limited to see to it that the card is being activated or deactivated, according to the instructions giving by the Complainant. The Complainant does not make any allegations of such laps on the part of the Opposite party no.1-Bank. Now, the Opposite party no.1-Bank had no role to play at the transaction of purchase of petrol at the petrol pumps of the Opposite parties no.2 and 3. The Opposite party no.1-Bank has sought information from the mercantile establishment and found that the credit card possess by the Complainant was used in these transactions. The Complainant is not entitle to avoid these transactions by mercantile establishment saying that he was not at Bombay and he usually makes the purchase of petrol from another petrol pump. It was for the Complainant to explain as to how his credit card was being used by a stranger which the Complainant has failed to do.
11 The Complainant has alleged in the complaint that the signature on the swipe slip does not tally with his signature on the credit card and thus he is not bound by the disputed transactions. We have compared the Complainant’s signature on the Complainant had affidavits with the signature which appeared on the swipe bills and we find substance in the contention of the Complainant that the signature on the swipe bill is slightly different. There was enough reason for the mercantile establishment to raise suspicion and to make the enquiry. It is for the mercantile establishment to compare the signature at reverse side of credit card with the swipe bill and the Opposite party no.1 –Bank has no role to play in that exercise.
12 No doubt, this circumstance might go against the mercantile establishments – the Opposite parties no.2 and 3 but the Complainant is not their consumer within the meaning of section-2(1)(d) of Consumer Protection Act, 1986. To become a consumer of particular service provider, consumer has to make payment of consideration for that service or purchase of goods to the service provider. In the present case, the Complainant was supposed to make payment to ICICI Bank and ICICI Bank was supposed to make the payment to the mercantile establishment through their bankers. The Complainant thus was the consumer of the Opposite party no.1-Bank but not the consumer of the Opposite parties no.2 and 3. The Complainant does not allege deficiency in service on the part of the Opposite party no.2 and regarding quality or quantity of Petrol.
13 It be noted in this context, that Consumer Forum acquires jurisdiction to decide the complaint between the Complainant and the service provider. To become the consumer, payment of consideration is must. In the present case, the Complainant has not established that he has become consumer of the Opposite parties no.2 and 3. The Consumer Forum has no jurisdiction to investigate allegations of fraud, cheating or deception. It can look into the allegations of deficiency in service on the part of the service provider, in the context of rendering service or sale of goods. Therefore, we are not in any position to give direction to the Opposite parties no.2 and 3.
14 Apart from that the Opposite party no.2 in its written version of defence has alleged that there had been meeting with partners of the Opposite party no.2, in the presence of Police Officer and the Complainant suggested Police Officer to settle the matter. In the affidavit affirmed before notary on 05.06.2008, the Complainant has denied such meeting but in the affidavit which was affirmed before notary on 24.01.2008, the Complainant had admitted such meeting with the partner of the Opposite party no.2 but claimed that it was in different context. These two versions in the separate affidavits of the Complainant filed before this Forum contain different versions and they are intriguing. Any way, we need not go deep into this aspect of the matter because we have held that we have no jurisdiction to give directions to the Opposite parties no.2 and 3. The Complainant has sought the relief principally against the Opposite party no.1 but as stated above we find that there is no deficiency in service on the part of the Opposite party no.1.
In view of the above, we find that the Complainant is not entitled any relief in this complaint. Hence, we proceed to pass the following order.
::::: ORDER :::::
1. Complaint stands dismissed with no order as to costs.
2. Certified copies of this order to be furnished to both
the parties, free of costs, as per rule.
