(Per Shri Dhanraj Khamatkar, Hon’ble Member)
(1) This appeal takes an exception to an order dated 25/11/2010 in Consumer Complaint No.457/2009, Jesna Jose Vs. 1.H.D.F.C.Ltd. & ors., passed by District Consumer Disputes Redressal Forum, Thane (‘Forum’ in short).
(2) The facts of the case in brief can be summarized as under:-
The complainant had taken a Forex Card from the opponent No.2 as she had to go to USA. She purchased the said card for security and convenience. The card No. is 4213 3100 0040 7245 and the credit limit of the card is $10,000. The opponents informed the father of the complainant that some unknown person had used the card for the purchase of $6,000. On 20/12/2008, the opponents were informed that the complainant has not used the card and further informed to freeze the card. She registered a criminal case on 24/12/2008 in Burbank Police Station, Los Angeles. She requested the opponents to supply the details of purchases made on the card. The opponents informed that out of 29 transactions 27 transactions are unauthorized and they came to know about the transaction on 14/12/2008. Even after knowing about the suspicious transactions, the opponents allowed 26 transactions to go ahead. She further claimed that her signature and the signature on the charge sheet are totally different. However, the opponents allowed the transactions to proceed. Alleging this deficiency in service on the part of the opponents, she filed consumer complaint and prayed to direct the opponent to pay an amount of $6,110 along with compensation for mental agony and the interest.
(3) The opponents have challenged the consumer complaint by filing written version contending that the complainant had approached to the bank Ombudsman and her complaint with the Bank Ombudsman is pending. The opponents further contended that they came to know that from 15/12/2007 to 17/12/2007, there were many transactions on her Forex Card and they tried to contact the complainant. However, the complainant could not be contacted and hence they informed to her father. Accordingly, her father had informed them to deactivate the card on 20/12/2007 and issue new card. The opponents alleged that the transaction might have taken place in connivance with the complainant.
(4) The opponents further stated that after going through the papers submitted by the complainant, they have rejected her request. The opponents have given the Smart Alert Service to the complainant. The bank has risk monitoring system. Whenever the opponent bank notices a doubtful transaction, the opponents inform to the card holder. The opponents have also a Fraud Alert Management System. The opponents further contended that the complainant has not registered her Forex Card for SMS alert service and hence they could not send SMS to the complainant. The opponents further contended that when they noticed that there are doubtful transactions, they have tried to contract the complainant for 3 days. However, finally they succeeded to contact to her father. The moment, the opponent came to know that the transactions have not been done by the complainant; they have put the card in hot list. They have further stated that they come to know about doubtful transaction on 16/12/2008 when they verified the entries of 15/12/2008, they informed to the father of the complainant on 18/12/2008 and when her father informed to the bank on 20/12/2008 that the transactions have not been done by the complainant, they hot listed the card. The opponents alleged that the transactions were carried out because of the negligence of the complainant and hence there is no deficiency in service on their part and the complaint filed by the complainant may please be dismissed.
(5) The District Forum after going through the complaint, written version filed by the opponents, the evidence filed by both the parties on affidavits, pleadings of the advocates of both the parties came to conclusion that there is deficiency in service on the part of the opponents and allowed the complaint directing the opponents to pay an amount of $6110 in Indian currency within a period of 45 days with an interest @12% p.a. from 16/12/2008, `40,000/- for the mental agony and `5,000/- as costs. The District Forum further directed that if the amount is not paid within 45 days, the amount will carry additional interest @3% p.a. till the realization of the amount.
(6) Being aggrieved by the order, the opponents filed the present appeal. We heard Mr.Ashutosh Marath-advocate for the appellant bank and Mr.Jose Parackar, A/R for the respondent.
(7) Admittedly, the respondent had taken a Forex Card. The appellant bank claimed that Forex Card is very secured, safe, convenient and easy to track the instrument. While using the card, the card holder has to sign a charge slip. In the present case, the signature on the charge slip and the specimen signature of the complainant available with the opponents materially differs. It establishes that the amount was allowed to be paid without verifying the specimen signature of the complainant available with the opponents. In their written version, they have admitted that they noticed the suspicious transaction between the period from 15/12/2008 and 17/12/2008 and tried to contact the complainant. However, they were not able to contact the complainant. Hence, they finally contacted the father of the complainant on 18/12/2008 and on 20/12/2008 on the instructions of the father of the complainant, they have frozen the card. They also admitted that while verifying the entries of 15/12/2008 they have noticed suspicious transaction on 16/12/2008. In fact, had the opponents verified the signature on transaction slip with the specimen signature, the unauthorized transaction would not have occurred. In para 8.1.4.1 of the Code of Commitment to the customer, the opponents have given commitment that “If you do not recognize the transaction, which appears on your card statement we will give more details if ask. In case where we do not accept your contention we will give evidence that you had authorized the transaction in question.” This is a commitment given by the appellants to the respondent being a card holder. Here, the respondent has proved beyond doubt that she has not used her card for the said transaction. The respondent had given sufficient evidence to prove that she had not done the transaction by using the card. She had filed FIR with the police authorities and the police has conducted the investigation and identified the person who has made the transaction. In view of this fact, as per the commitment given by the opponent to the customer, they failed to give evidence that the complainant had authorized the transaction in question. Considering the aforesaid facts, it is established beyond doubt that the transactions are unauthorized transactions and not done by the respondent and the same could take place as the appellants failed to verify the signature on transaction slips with the specimen signature of the respondent.
(8) The learned advocate for the appellants tried to take pleas that the complaint is filed by the authorized representative of the complainant and the authorized representative of the complainant has filed evidence on affidavit. However, the respondent had filed the complaint on the basis of the documentary evidence and over looking the documentary evidence will not meet the ends of justice. There is a clear cut deficiency in service on the part of the appellant bank and the District Forum has passed an order taking into consideration the facts & circumstances of the case. We do not find any reason to interfere in the same. We hold accordingly and pass the following order.
ORDER
(1) The appeal stands dismissed.
(2) The impugned order dated 25/11/2010 passed by the District Forum, Thane in Consumer Complaint No.457/2009 is hereby confirmed.
(3) Under the circumstances, parties to bear their own costs.
(4) Inform the parties accordingly.
Pronounced on 9th April, 2013.
