DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/312/2010
No. DF/ Central/
Sh. Mridu Hari Dalmia
S/o Late Shri Jaidayal Dalmia
B-47, Connaught Place, New Delhi – 110 001
……..COMPLAINANT
VERSUS
1. ICICI Bank Limited
Block E-1, Videocon Tower,
Jhandewalan Extension, New Delhi – 110 055
2. Executive Director (Asia and the Pacific)
Through Executive Club Manager
British Airways Executive Club
Cyber City, Tower – ‘C’, DLF Building No. 8,
Sector – 25, DLF City Phase – II,
Gurgaon – 122 002, Haryana State
3. British Airways
DLF Plaza Tower, DLF Phase – I,
P.O. Gurgaon, Haryana State
4. American Express
Cyber City, Tower – ‘C’Sector – 25, DLF City Phase – II,
Gurgaon – 122 002, Haryana State ..…..OPPOSITE PARTIES
Quorum: Ms Rekha Rani, President
Mrs Manju Bala Sharma, Member
Shri R.S. Nagar, Member
ORDER
Shri R.S. Nagar, Member
1. Succinctly put, the brief facts, which are material, are that the complainant had been a regular visitor of various countries and was a member of British Airways Executive Club, the OP 2 and his membership No. was 72050345. The complainant was offered a credit card scheme by OP – 2 in partnership with OP –
1and OP – 4 wherein ICICI Bank British Airways Premium American Express Card ending with 6004 was issued along with another ICICI Bank British Airways Master Card ending with 3004, which were received by the complainant on 20/01/2010. Special benefits were offered to the complainant under the aforesaid Credit Card Scheme so that he could rapidly accumulate British Airways Miles on his everyday spend so as to enjoy more reward flights to exotic destinations. The Complainant used the BA American Credit Card to book air tickets on British Airways on 20th January 2010 but tickets could not be booked as the said card was not accepted by British Airways due to incorrect PIN and incorrect address. The complainant reportedly booked tickets amounting to Rs. 3,54,774/- on British Airway through his aforesaid ICICI Bank British Airways Master Card but not through B.A. American Express Card and as such could not avail the special benefit assured by OP. However, it was submitted that the complainant booked tickets on 21/01/2010 for 13th Feb 2010 from Manchester to Frankfurt and back through Lufthansa Airlines through the BA American Express Credit Card and the said credit card was accepted but the complainant did not get the benefit of 5% discount on INR 48,714/-.
2. It has been further submitted by the complainant that due to a deficiency in service by the OPs the complainant had suffered a total loss of Rs. 2,05,279/- plus 0.5% towards the difference in the exchange rate in addition to the loss of interest @ 12%
p.a. on the aforesaid amount w.e.f. 20/01/2010 till the date of payment. Legal Notice was sent to OPs followed by another notice, claiming a sum of Rs. 2,09,279/- but the OPs did not respond nor paid the amount claimed and hence the complaint was filed in this Forum with the prayer that the complainant is entitled to get the claim of Rs. 2,05,279/- with interest @ 18% p.a. on the aforesaid amount from the date of boarding and till the payment is finally paid plus the cost.
3. Parties had filed replies, copies of relevant documents, evidence by way of affidavits and also written arguments along with additional evidence in support of their contentions.
4. We have heard Ms Shruti Gupta Counsel of a complainant, Sh. Tushar Sharma Counsel for OP 1 and others on behalf of OPs on the issues involved in this matter. It is not in dispute that two different credit cards were issued to the complainant by the OP having special benefits and the complainant, being a frequent flier wanted to use the above credit card for purchasing air tickets of British Airways in order to avail special benefits assured by OPs on the issuance of above cards but could not do so and alternatively used other Credit Cards, on which there were no special benefits.
5. Learned Counsel for OP 1 submitted that the complainant could not use the aforesaid credit card as the same was not activated and he used it repeatedly with
incorrect Pin and incorrect residential address and that fault resulted in a technical error and the same cannot be attributed to OP 1. OP 2 and OP 3 further replied that no ticket was booked through B.A. American Express Card and as such complainant could not claim the special benefits on the cards, which were offered for a limited period and OP was under no legal obligation to extend the benefits of the offer. The OP 4 submitted that Hon’ble Forum had no jurisdiction to deal with the complaint as there were various disputed facts, which cannot be dealt with effectively in summary proceedings of the Distt. Forum and if the complainant had any grievances, only the civil courts had jurisdiction to adjudicate upon the same. Further, the offer was made on 17/12/2008 which was accepted by the complainant on 13/01/2010 after a lapse of almost 13 months.
6. It has been further submitted in the arguments by OP – 1that the present complaint is not maintainable as the complainant is not a ‘consumer’ as defined under sec. 2 (1) (d) of Consumer Protection Act and no cause of action has arisen within the territorial jurisdiction of this Forum and disputed facts can be dealt effectively by the civil Courts. Additionally, it was argued by OP 1 that decline in the transaction was due to authentication failure and 9 transactions were attempted on 20/01/2010 by the complainant and details of the same were submitted in excel sheets.
7. OP 2 and OP 3 have also argued that present complaint is not maintainable as the complainant is not a consumer under Consumer Protection Act 1986 as he is claiming relief which only and solely relates to commercial transactions. In addition, since BA American Express Card was not used by the complainant to book tickets, he cannot expect to be given special offer available to the users of American Express Card. Further the complainant had not given crucial evidence of having used American Express Card for availing the benefits.
8. OP 4 has argued that cards were issued by OP 1 and its usage was governed by the terms and conditions of the agreement between the two parties and OP 4 has no role to play in the same. Further, there is no privity of contract between the complainant and OP 4 and complainant is not a consumer of OP 4 and the complainant has failed to establish a case of deficiency in service qua OP 4. Almost similar submissions had been made in the arguments by the parties.
9. The Complainant on the other hand pleaded that he was a consumer within the meaning of sec 2 (1) (d) of Act and it is not explained by the OP that how the complainant is not a consumer under the Consumer Protection Act and the services of OP were availed by the complainant for any commercial purpose. Further the complainant was entitled to get the special benefits only if he had purchased tickets through BA American Express Credit Card on British Airways within 03 months
of the date of activation of cards as per the terms and conditions mentioned in the issuing letter of credit cards by the OP. However, he could not use the BA American Express Card to avail the special benefits offered on the issuance of that credit card. It has been submitted by the complainant in arguments that the complainant booked tickets on 21/01/2010 through the BA American Credit Card and the said credit card was accepted but the complainant did not get the benefit of 5% discount on INR 48714/- but only 4% against 6% of Rs. 48714/- as stated in subclause (i) and (ii) of terms and conditions. It has been submitted further that the OPs had their offices doing commercial activities in New Delhi and the cause of action arose at New Delhi on 20th Jan 2010, 21st Jan 2010 and 23rd Jan. 2010, when the complainant had to use the BA Master Card and not BA American Express Credit Card for purchasing the tickets. It was also submitted by the complainant in para 18 of the written arguments that the same credit card was accepted by other airlines i.e. the Lufthansa Airlines and there was no reason as to why it was rejected by OP 3 (British Airways). It had been further pleaded by the complainant that the password, pin code and address were correctly provided and there was no technical error. The said BA American Express card with the same address was correctly accepted once by OP 1 and Lufthansa Airlines and thus there was a deficiency of service committed by OPs jointly and severally and the
complainant had suffered losses and as such was entitled to compensation as prayed in the complaint.
10. During the course of oral arguments, it was pleaded by the OPs that complainant is not a consumer in this matter under Sec. 2 (1) (d) of Consumer Protection Act and the Credit Card transactions were commercial transactions. It was also stated that out of two credit cards, one credit card was issued free by OP. It was argued further that the complainant was entitled to benefits only if he had used successfully BA American Express Card ending with 6004 but since the same was not used, no benefits were applicable to the complainant. Moreover, the complainant had not placed on record any crucial evidence to show that the BA American Express Card was used successfully at that time to claim the benefits offered by the OP. The counsel of complainant had stated during the course of oral arguments that B.A. American Express Card was not used successfully on 21/01/2010 and on 23/01/2010 another American Express Card ending with 3003 was used which was not part of this offer. Further, the B.A. Master card ending with 3004 was not used. In addition, the offer of special benefits on taking new British Airways Credit Cards was taken/accepted after more than 1 year as no time bar was fixed by the OPs to avail the offer of special benefits.
11. We have gone through carefully in the matter as well as the pleadings submitted by the parties. We feel that the complainant did not use the ICICI Bank British Airways American Express Card ending with 6004 successfully in the first transaction on 21/01/2010 as claimed by him, in order to become eligible to avail the special benefits as offered under the scheme. Further the complainant did not use the other ICICI Bank British Airways Master Card ending with 3004 on 23/01/2010 also as claimed by him. Moreover, the complainant did not mention the correct PIN as well as correct residential address in order to authenticate himself when using the BA American Express Card to purchase the tickets first time from British Airways as is evident from Ex DW -1/A (colly) enclosed with the additional affidavit in evidence on behalf of OP 1. Since the BA American Card ending the 6004 was not successfully used due to the above reasons and the complainant was entitled to benefits only if he had used the BA American Card ending with 6004, the complainant was not entitled to avail the special benefits as offered by the OPs. Accordingly, the complaint is dismissed with no cost payable by either side. Copy of this order is sent to the parties as statutorily required. File be consigned to record room.
Announced on this 15th Day of Feb. 2019.
