IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 94/08 DATED 11-07-2008<br /> <br /> ORDER<br /> <br /> Complainant Dr.K.Rathna Sabhapathy, NO.4, 1st Block, Gaganachumbi Double Road, Kuvempu Nagar, Mysore-570023.<br /> (By Sri.S.Shankar, Advocate)<br /> Vs. <br /> Opposite Parties 1. The Branch Manager, ICICI Bank Ltd., C.H. 34/2,3,4,7, First floor, Ramavilas Road, Mysore-570024.<br /> 2. The Asst. Manager – Chargeback, ICICI Bank Ltd., Empire Complex, 2nd Floor, S.B.Marg, Lower Parel, Mumbai-400013<br /> (Sri. Gerald Castelino, Advocate for O.P.1)<br /> 3. The Proprietor, Gajalakshmi Jeweller, Avenue Road, Bangalore-560002.<br /> (EXPARTE)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 09.04.2008<br /> Date of appearance of O.P. : 19.05.2008<br /> Date of order : 11.07.2008<br /> Duration of Proceeding : 1 ¾ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> MEMBER<br /> MEMBER<br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant who has approached this Forum against the Opposite parties is that he has been working as a Professor in the department of ENT at All India Institute of Speech and Hearing, Mysore. That he is having a credit card bearing No.4477460568290011 issued by the first Opposite party. That on 05.06.2007 he was surprised to receive a statement from the first Opposite party intimating that he has purchased jewelers worth Rs.49,000/- on 29.05.2007 from the third Opposite party at Bangalore by using the above credit card. That he has not at all used that credit card, therefore on the same day he visited the first Opposite party made enquiries gave written complaint to second Opposite party on the advise of the first Opposite party and also lodged a complaint to the Commissioner of Police, Mysore. Then he received a message from the first Opposite party on 08.06.2007 in having taken a dispute and have blocked the card for security purpose. The first Opposite party had debited to his account, which was temporarily again credited to his account. The second Opposite party on 20.01.2008 has sent a untenable reply stating that transaction has taken place through his credit card having been swiped through the machine by enclosing a copy of the charge slip. Then he found that the signature found in the charge slip was not his signature and it was only an initial made on the charge slip. The credit card should not have been allowed to be used without taking the full signature of the user of the card and is other identity. Despite his protest and the complaint, the first Opposite party issued a statement on 21.02.2008 that the transaction was still treated has disputed transaction. In the meanwhile, the police investigation was taken up during which the first Opposite party made a statement to the police that there was discrepancy in the financial transaction which has been set right and the amount has been given credit to the account of the complainant, then the police closed the investigation. But, despite that first and second Opposite parties have sent credit card statement dated 22.03.2008 claim Rs.51,108.84 which is inclusive of late payment fee and service tax. Then he sent a reply on 04.04.2008 stating that he is not liable to pay any amount and he has not used the credit card, but despite that the first and second Opposite parties are making demands for payment, therefore has prayed for declaring that the claim of Rs.51,108.84 claimed under the statement dated 22.03.2008 is illegal and unlawful and also to direct first and second Opposite parties to give credit of the disputed amount to his account and also to award cost.<br /> 2. First and second Opposite parties have appeared through their Advocate. First Opposite party has filed his version whereas the counsel for the second Opposite party filed a memo adopting the version filed by the first Opposite party. The third Opposite party despite service of notice has remained absent and is set exparte.<br /> 3. First and second Opposite parties in their version admitted to have issued the credit card to the complainant as detailed in the complaint besides issuing additional cards to 3 of his family members. They have further admitted as the credit card of the complainant was used on 27.05.2007 in the business of third Opposite party, therefore they debited a sum of Rs.49,000/- to the account of the complainant. Further denying the averments made in para 3 and 4 of the complaint have stared that in order to maintain good relationship, later on credit was given to the complainant for the amount, which had been disputed pending a thorough enquiry about the unauthorized transaction. That the credit card of the complainant is swiped at the place of the third Opposite party. It is stated that it was the duty of the third Opposite party to verify the signature of the card holder and also the authenticity of the signature of the card holder besides his identity. Therefore, the credit card of the complainant since had been swiped they sent statement to the complainant demanding the amount. The statement given by the first Opposite party to the police was opt at that time. Therefore, finding that complainant’s card had been swiped they have rightly claimed Rs.51,108.84 and stated as per the terms and conditions of credit card, which was provided to the customer at the time of issuing credit card in the event of any dispute regarding the authenticity or validity of such purchase or for in any reasons what so ever the card member will make payment to them and all the outstanding dues and all disputes would be settled by card member with the concerned merchant establishment and they are not liable, therefore have prayed for dismissal of the complaint.<br /> 4. In the enquiry in to the complaint, the complainant and one Harish Srivasta for first and second Opposite parties have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has referred to the credit cad of his wife in the affidavit evidence which in our view has no relevancy to the facts of this case. The complainant has produced his credit card, the intimation dated 05.06.2007 received from the first Opposite party intimating the complainant regarding purchase of jewelers, copy of the letter he had addressed to Opposite parties statements sent by Opposite parties to him and also their letter dated 16.06.2007, 20.01.2008, and the charge slip issued by the third Opposite party with few daily newspaper. Heard the counsel for both the parties and perused the records. First and second Opposite parties have produced copy of terms and conditions covering credit card facilities. <br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the first and second Opposite parties prove that the complainant has purchased jeweles on 27.05.2007 from Sri. Gajalaksmi jewellary, Bangalore for Rs.49,000.52 by using his credit card no.447760568290011?<br /> 2. Whether the complainant proves that the first and second Opposite parties without enquiring into the genuineness of the transaction made with third Opposite party have sent statement of account claiming Rs.51,108.84 and thereby have caused deficiency in their service?<br /> 3. To what relief the complainant is entitled to?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 and 2:- It is not in dispute that the complainant is having a credit card by the first Opposite party besides issuing 3 additional cards to his family members, which are not very much material for deciding this complaint. It is the grievance of the complainant that when he received a statement of first Opposite party on 05.06.2007 claiming an amount of Rs.49,000.62 in connection with some purchases made in Sri.Gajalakshmi Jewellary Shop, Bangalore on 27.05.2007 contended that he had never gone to Bangalore has not purchased any jewelles and he has not made any purchases through his credit card. It is found that the complainant has in his complaint and also in his affidavit evidence categorically stated that on the receipt of such statement he immediately approached first Opposite party explained him of not using the credit card and on his advice on the same day, he filed a written complaint to second Opposite party and also to the commissioner of Police, Mysore. On perusal of the complaint given by the complainant to the second Opposite party and the Commissioner of police he has made clear that he never used the credit card for purchase of jewels on 27.05.2007 and he had never gone there and he is taken by surprise and requested the second Opposite party and also the Commissioner of police to take up the investigation of this fraudulent purchase. The first and second Opposite parties thereafter it is found informed the complainant on 16.06.2007 what they have given temporary credit for the disputed amount and they have referred to his complaint to merchants bank which process and take up investigation. Thus, it is clear that the Opposite parties who had debited that amount of Rs.49,000/- to the account of the complainant reversed it by again giving credit to the complainant account. Thereafter, the second Opposite party addressed, another letter to the complainant on 20.01.2008 stating that the query of the complainant which was referred to investigations and this transaction pertains to his card on the basis of that finding they have reversed the entry reversing the temporary credit given to him. Further, informed the complainant that investigation has confirmed that the transaction has taken place by swiping his credit card and thereby it emerges that the first and second Opposite parties have washed of their hands at that stage without even concluding investigation to its logical end by simply blaming the complainant that as if the transaction has been done by swiping the credit card of the complainant without even applying their mind whether the card issued to the complainant was swiped and the signature found in the charge slip is that of the complainant or not.<br /> 8. It is the cry of the complainant immediately on receipt of the statement of account sent by the first and second Opposite parties, he approached the first Opposite party explained him of his not using the credit card he also immediately gave a complaint to the second Opposite party and to the concerned police to enquire into the fakeness purchase made said to be under his card number. When the card holder gives such a complaint to the first and second Opposite parties who had issued the card particularly alleging fake transaction it was incumbent upon the first and second Opposite parties to take the matter seriously and enquire into the genuineness of the transaction and to find out whether the card holder has used the card issued to him or any fake card is in circulation. The learned counsel representing the first and second Opposite parties in the course of arguments submitted that the complainant had been taken up for investigation, but when we asked him as to the results of the investigation he submitted that the result of the investigation is not available with the local branch and he will try to get the same and took time for that purpose. But, even thereafter he was not in a position to place before us, the result or the out come of the investigation. Therefore, it appears that the first and second Opposite parties either have not taken the complaint seriously or must have found that a fake card is made use of, therefore they were not prepared to submit before us about the result of the investigation.<br /> 9. The first and second Opposite parties have even supplied the charge slip issued by third Opposite party which was prepared at the time purchase. On seeing the Xerox copy of that charge slip filed before us though it appears the same card number as that of the complainant is swiped, but in the charge slip we only see the initial of the card user and third Opposite party has not taken the full signature of the card holder. Therefore, it emerges that the card of the complainant was not made use of for purchase in the jewellary shop, but a card created or fake card prepared with the same card number is made use of and the purchaser has put his initial on the charge slip. This conclusion is in evitable because if the purchaser had used the card of the complainant, the third Opposite party after selling jewelles when verified the signature of the purchaser in the charge slip he would have found the signature in the charge slip is different from the signature found in the card issued to the complainant, Thus if the signature found in the charge slip and the card if tallied then that card must be fake one. Even then we feel that third Opposite party should have been careful to verify the signature of the purchaser and the card, he has made use of. Because whenever credit card is issued it should bear the full signature of the card holder and not the initials. Therefore, it emerges that the third Opposite party was also not diligent when he accepted the credit card which did not bear the full signature of the card holder. Therefore it cannot be said that the original card issued to the complainant itself was used in the transaction. First and second Opposite parties as could be seen from their stand taken in the version and also in the affidavit evidence simply because the card bearing the card number of the complainant is swiped, they have presumed that the card issued to the complainant itself, is used for the purchasers, but that cannot be accepted because of the difference, we have finding in the signatures of this charge slip and the complainant in his card.<br /> 10. The first and second Opposite parties who had debited the purchase amount of Rs.49,000/- in the account of the complainant on his complaint they had reversed it and had assured the complainant that they will investigating into the purchase and the transaction. At that time the first and second Opposite parties reversed the earlier entry giving credit to the complainant, but again they without assigning any reasons reversed the entry further debiting to the account of the complainant. Thus, that final debiting to the account of the complainant could have been done after the investigation was completed and after knowing the out come of the investigation. The investigation result itself is not out, but first and second Opposite parties have hurriedly reversed the entry and went on sending accounts statement to the complainant demanding payment of Rs.51,108.84 by adding interest and late payment charges etc., which in our view has been done without any basis. The first and second Opposite parties have done it by evading their responsibility. <br /> 11. The complainant has produced paper cuttings of the Times of India dated 23.06.2007, Hindu daily newspaper dated 23.06.2007 and Bangalore mirror of the same date and the counsel for the complainant argued that 100’s of fake cards several banks including Nationalized banks are in the circulation in the country and some of them have been traced and the first and second Opposite parties bank is also one whose fake cards are in circulation and submitted that in the present case, a fake card is made use of for purchases and when it was brought to the notice of the first and second Opposite party, it was their responsibility to crack it but instead they have penalized the complainant. On perusal of these publications, it is found that number of fake cards are said to be in circulation and in the list of those banks, the bank of first and second Opposite parties is also one. Therefore that being the undisputed position of the first and second Opposite parties should have gone in depth to crack the circulation of fake cards and after thorough investigation, and the signatures of the complainant and the user and by enquiring with the third Opposite party they should have found out that the complainant has not made use of his card for the purchase in question. It is on perusal of all these materials, we have no hesitation to hold that the card issued to the complainant has not been made use of, either by himself or by the user and that first and second Opposite parties have failed in their duty to probe into the issue and they have simply washed of their hands by stating as if the card of the complainant is swiped after purchase, simply by going with the card number and not by the reality. Further, as could be seen from the status of the complainant and swift action he had taken we do not believe that the complainant has come up with a false statement of denying purchase. Hence, we hold that the first and second Opposite parties have failed in their responsibility of taking note of the fake card used and have caused deficiency in their service in making demand for payment of that purchase, which was not made by the complainant. The counsel for the complainant relied on a decision reported in I (2008) CPJ page 122 rendered by Union Territory Consumer Disputes Redressal Commission, Chandighar between Thriloksingh Vs. SBI Cards and payments service Pvt. Ltd. and another. With the result, we answer point no.1 and 2 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed and we declare the claim of first and second Opposite parties made against the complainant for Rs.51,108.84 through statement of account dated 22.03.2008 is illegal unlawful and it do not bind the complainant.<br /> 2. The first and second Opposite parties are also directed to give credit of the disputed amount to the account of the complainant within 30 days from the date of this order, failing which they shall pay Rs.500/- per month as damages to the complainant after expiry of 30 days till that debit is reversed.<br /> 3. The first and second Opposite parties shall jointly and severally pay damages of Rs.3,000/- towards mental agony to the complainant within 30 days from the date of this order, failing which they shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 4. Lastly, first and second Opposite parties shall also pay cost of Rs.1,000/- to the complainant.<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 11th July 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> (Shivakumar.J.)Member<br /> <br /> <br />