COMPLAINT FILED ON:13.05.2010

DISPOSED ON:23.08.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

23^rd DAY OF AUGUST 2012

       PRESENT:- SRI. B.S.REDDY                      PRESIDENT                        

                         SRI.A.MUNIYAPPA                   MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint U/s. 12 of the C.P. Act of 1986 seeking direction against the Opposite Party (herein after called as OP) to pay an amount of Rs.18,637.44/- with interest at 36% p.a. and an amount of Rs.48.45 with interest at 36% p.a. along with compensation of Rs.75,000/- on the allegation of deficiency in service on the part of the OP.

2.   The case of the complainant to be stated in brief is that:-

            The complainant has a savings bank Account with Op, the account bearing No.0169 0150 7685, OP has issued debit card bearing No.4731 9601 6909 5901 to the complainant to operate her Savings Bank Account.   On 13.04.2010 at about 07:08 am the complainant received two SMS messages from ICICI Bank disclosing that an amount of Rs.13,155.84/- and Rs.5481.60 was transacted and debited from the complainant’s Account on12.04.2010.   On 13.04.2010  around 09:30 a.m.ICICI Bank Mumbai enquired with the complainant as to whether she has made any debit card transactions total amounting to Rs.18,637.44/- for which the complainant confirmed that she has not transacted for such amount on 12.04.2010 and the caller from Mumbai ICICI has informed the complainant that a total amount of Rs.18,637.44/- was transacted and debited from her account on 12.04.2010 at Karachi, Pakistan.   The complainant neither traveled out of country during that period nor incurred any such expenditure through her debit card.   The complainant submits that upon clarification and request from the complainant, ICICI Mumbai has blocked the Debit Card and has registered a complaint bearing No.SR.No:1384 25994 and advised the complainant to contact local branch of ICICI Bank for further procedures.   The complainant visited nearest branch of OP at Koramangala, Bangalore and she was directed to approach Bommanahalli Branch, and the complainant visited the said Branch on 13.04.2010, and she was asked to meet one Mr.Saroj Sahu from the Fraudulent Claims Department who asked the complainant to fill a form thereby giving details of the fraud and collected the signed copy of the passport of the complainant and also asked the complainant to forward the SMS messages received by the complainant regarding the withdrawal of amount from the complainant’s account on 12.04.2010 and accordingly the complainant forwarded the said messages to the mobile of Mr.Saroj Sahu.    After verification, Mr.Saroj Sahu admitted the fraudulent transactions for a total amount of Rs.18,637.44/- debited from the complainant’s account on 12.04.2010 and assured that the said amount shall be credited into complainant’s account within seven working days time.     The complainant waited for seven days but the amount was not credited into her account and the complainant who is a self employed person and needs the amount for her business activities and for personal use which has caused immense hardship to the complainant.    The complainant being frustrated called Mr.Saroj Sahu, who stated that the said case has not been forwarded to him to take action even after seven working days and it is still with the liabilities department and hence asked the complainant to contact the ICICI Bank call centre and the complainant called the said call centre who informed that the investigation will take place and the complainant will only to get in 25 working days.      The complainant was made to run around without the payment being made and she got issued a legal notice dt.21.04.2010 calling upon OP to refund the amount of Rs.18,637.44/- together with interest at 36% p.a. and sought for compensation of Rs.75,000/-, within one week from the date of the notice.    Though the legal notice is served on the OP, OP has neither made the payment nor replied the notice.    The fraudulent withdrawal of amount from the complainant’s account is due to the fault of the Op in protecting the funds deposited by the complainant in the Op-Bank and the non refund of the amount within the specified time limit has caused mental agony, hardship which has led to financial constraints and hardship has adversely affected the business of the complainant.    In spite of a complaint being registered, OP has charged service charges of Rs.34.20 and Rs.14.25 for the said fraudulent withdrawal on 17.04.2010 which amounts to deficiency in service.    Thus the complaint.

3. On appearance OP filed version contending that the complaint is neither maintainable in law nor on merits, the same is to be dismissed.    The Merchant Establishment is not made a party to the complaint.   Hence the complaint is not maintainable against OP, it is stated that at the time of availing the Credit Card, the complainant had signed the Credit Card Application and agreed to abide by the terms and conditions governing the said Credit Card transactions.   Hence, the act which is not in accordance with the said terms and conditions, the complainant cannot justify.   Moreover, the Credit Card transaction is governed by the terms agreed upon by the complainant, the complainant cannot seek the remedy before this Hon’ble Forum.    It is submitted that ‘Visa’ and ‘Masters’ are the owners of the credit cards and they are called as “Franchises.    The said Credit Cards are extended through the Banks/Companies which are called as “Issuing Banks/companies”.   The said Credit Cards are accepted by certain Merchants and they are called as “Merchant Establishments”.   Merchants maintain their Accounts with the Banks and all the credit card claims against swipings are processed through such Banks to Visa and master Companies and they are called as “Acquiring Banks”.    When once the Card Holder swipes the Credit Card, the same reflects with the Visa or Master as the case may be and the said usages are entered in the system and the same is processed to the issuing Banks and based on such statements the Issuing Banks Credit the amounts against the Claims of the acquiring Banks and thereby the Merchants get their amounts.   The Merchant Establishments will have EDC Machines for swiping the said Credit Cards and such machines not necessarily installed by the Issuing Banks and all such Merchants will be having a separate Agreement for terms and conditions governing the usage of such Machines and requisite care to be taken while using such Credit Cards.    On 12.04.2010, the Credit Card belonging to the complainant was utilized.   OP–Bank is the Issuing Bank.   The said Credit Card was last used at “Barista” and the same has not been disputed.   The complainant had filed the Police Complaint and the Accused was also arrested and certain articles were recovered by the Police.    After the Police complaint and the intimation to the Op, the said Credit Card was not utilized.   Therefore, before such complaint and the intimation, as per terms and conditions agreed upon, the complainant is liable to pay.   Op-Bank has paid the amount to the Merchant Establishment, where the alleged transaction was made.   Hence, the complainant was due to the Op.   Therefore, Op was right in recovering the said amount from the complainant’s Account.   Whereas, from the Police complaint, it was noticed that the Accused involved was working at Barista during the relevant time and when the complainant and such other people have utilized their Credit Cards, the same were unlawfully skimmed and decoded at the Plastic and later the same was misused.   For the criminal acts of the said Accused, the OP cannot be held responsible and the complainant is at liberty to get them indemnified from the said Accused.   Whereas, as a good gesture, all the Banks whose Credit Cards were skimmed and misused, have convened a meeting and decided to pay back the amounts of the Card Holders and accordingly, the complainant also received back the amounts from the OP.  Despite the Op suffering because of the negligent acts of the complainant, the complainant had filed the present false case, with an intention to extract more money from the Op.   Whether the Credit Card of the complainant is used by him or misused by any third parties, it is the complainant who shall pay the amounts so outstanding to the OP and get him indemnified from the culprit if caught and charges are proved against him.   For the same OP who had invested its money cannot be made to suffer.   If the complainant had taken proper care while utilizing the Credit Card which is the absolute property of the OP, the complainant could have avoided the misuse.  Hence, it is prayed to dismiss the complaint with a direction to the complainant to pay reasonable compensation to the OP.

4. The complainant in order to substantiate complaint averments filed affidavit evidence and produced documents.  The Officer of the OP filed affidavit evidence in support of the defence version.

5.   Both parties filed Written Arguments.

6.   Arguments on both sides heard.

7.   The points now that arise for our consideration in this complaint are as under:

Point No.1:-Whether the complainant has proved the deficiency in service on the part of the OP?

           Point No.2:-If so, whether the complainant is entitled for the relief’s now claimed?

           Point No.3:-To What order?

8.   We record our findings on the above points:

           Point No.1:-Affirmative

   Point No.2:-Affirmative in part

   Point No.3:-As per final order.

R E A S O N S

9. The undisputed facts are that the complainant is having Savings Bank Account No.016901507685, in the OP-Bank.   The Op-Bank has issued debit card bearing No.4731960169095901 to the complainant to operate the said Savings Bank Account.   Annexure-A is the debit card copy.    The complainant received two SMS messages from ICICI Bank disclosing that an amount of Rs.13,155.84/- and Rs.5481.60/- was transacted and debited from the complainant’s Account on 12.04.2010.   Annexure-B and C are the extract of the messages received by the complainant.   Further on 13.04.2010 the complainant also received call from ICICI Bank Mumbai with regard to debit card transactions for which the complainant confirmed that she has not transacted any such amount on 12.04.2010.   The complainant neither traveled out of country during that period nor incurred any such expenditure through her debit card.     The ICICI Bank Mumbai informed the complainant that total amount of Rs.18,637.44/- was transacted and debited from the complainant’s Account on 12.04.2010 at Karachi, Pakistan.   Upon clarification and request from the complainant, ICICI Mumbai has blocked the debit card and registered a complaint bearing Number SR No:138425994 and advised the complainant to contact local branch of ICICI Bank for further procedures.         The complainant approached ICICI Bank Koramangala, Bangalore and she was directed to approach ICICI Bank, Bommanahalli Branch.   The complainant approached the said Branch on 13.04.2010 and met one Mr.Saroj Sahu from the Fraudulent Claims Department and the said official collected the signed copy of the passport of the complainant and asked to forward the SMS messages received by the complainant with regarding the withdrawal of amount from the complainant’s account on 12.04.2010 and accordingly the complainant forwarded the said messages to the mobile of Mr.Saroj Sahu.   It is stated that the said official admitted fraudulent transactions for a total amount of Rs.18,637.44/- debited from the complainant’s Account on 12.04.2010 and assured that the said amount shall be credited into the complainant’s Account within 7 working days time.

            The grievances of the complainant is the amount was not credited into her account within 7 days because of the same she being self employed person and needs the amount for her business activities and for personal use which has caused immense hardship to her.   On enquiry with the Mr.Saroj Sahu the complainant came to know that the said case has not been forwarded to him to take action even after seven working days and it is still with the liabilities department.   The complainant contacted the ICICI Bank call centre who informed her that the investigation will take place and the complainant will only get to know the results in 25 working days.    Thereafter the complainant got issued legal notice on 21.04.2010 to the Op calling upon to refund the amount of Rs,.18,637.44/- with interest at 36% p.a. and to pay compensation of Rs.75,000/-.     Op has not replied for the said notice nor complied the demand as such the complainant approached this Forum for the necessary reliefs.

            During the pendency of this proceeding, Op has credited that amount of Rs.18,637.44/- to complainant’s account on 05.06.2010 and also had sent reply to the notice.   The defence of the Op is a Police complaint lodged with regard to this fraudulent transactions and the accused involved was working at ‘Barista’ during the relevant time and when the complainant and such other people have utilized their credit card, the same were unlawfully skimmed and the decoded at the Plastic and later the same was misused.   All the Banks whose credit cards were skimmed and misused, have convened a meeting and decided to pay back the amounts of the Card holders and accordingly,  the complainant also received back the amounts from the Op.    Thus from the defence of the Op it becomes clear that the fraudulent transaction has taken place as a result an amount of Rs.18,637.44/- was debited to the Account of the complainant, as the fake debit card was used at Karachi, Pakistan and the merchant establishment, where the card was used submitted the bills and the Op-Bank has paid that amount to the Merchant Establishment.   Merely because there is delay in crediting the amount of Rs.18,637.44/- OP cannot be held responsible for the fraudulent transactions.  The amount was debited to the account of the complainant on 12.04.2010 and again the same was credited on 05.06.2010.   When the Merchant Establishment has submitted the bills of the use of debit card Op Bank was bound to pay that amount to the Merchant Establishment by debiting to the account of the complainant.    The grievance of the complainant is it was the responsibility of the Op-Bank to maintain reasonable security practices and procedures to protect the complainant from suffering wrongful loss.     It was the duty of the Op to take appropriate security procedures to secure the codes on the debit card and from being misused.   In our view, Op-Bank has taken reasonable care, in spite of that a fraudulent transaction has taken place and for which OP-Bank has refunded that amount by crediting the same to the account of the complainant.   However, OP-Bank has charged Rs.48.45 by debiting the same to the account of the complainant towards service charges but the same was not justified. When the fraudulent transaction had taken place, OP-Bank ought to have waived of that service charges of Rs.48.45/-.   The act of Op in not waiving that service charge of Rs.48.45/- in spite of knowing that the transaction is fraudulent, amounts to deficiency in service.   Op is liable to repay that amount to the complainant. 

10.On 30.08.2010 the complainant has filed memo of calculation claiming total amount of Rs.1042.66/- to be paid by OP.   Interest at 36% on the amount of Rs.18,637.44/- from 12.04.2010 to 04.06.2010 amounting to Rs.987.78/-, services charges to be refunded by OP Rs.48.45/-, interest on the said service charges from 17.04.2010 to 30.08.2010 Rs.6.43/- in all Rs.1042.66/- is claimed.   In our view, the complainant is not entitled to claim interest on the said amount which has been refunded.   As OP has refunded that amount by way of good gesture in spite of the fact that a fraudulent transaction has taken place and that amount has not been used by OP-Bank.   There is no justification to claim interest on the service charges.   However, the complainant would not have been made to approach this Forum had this amount was refunded by OP soon after the receipt of the legal notice.    The legal notice was issued on 21.04.2010.  This complaint was filed on 13.05.2010.   After filing this complaint, the amount was credited to the account of the complainant on 05.06.2010 and the reply notice is issued on 10.06.2010.   Taking into consideration of all these facts and circumstances, we are of the view that Op is liable to pay costs of the proceedings to an extent of Rs.500/- in addition to refunding the service charges of Rs.48.45/-.     Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant allowed in part.  

Op is directed to pay an amount of Rs.48.45/- along with litigation cost of Rs.500/- to the complainant. 

This order is to be complied within four weeks from the date of this order.

        Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 23^rd day of AUGUST-2012.)

MEMBER                                                         PRESIDENT

Cs.