Date of Filing:16.03.2024

Date of Disposal:05.08.2024

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.SAVITHA AIRANI, MEMBER

1. This complaint is filed by the complainant under Sec. 35 of C.P. Act, 2019 against the OP for deficiency in service, seeking direction to OP Bank  to consider waiving off the fraudulent transactions incurred by the complainant Credit Card and thereby mitigation the financial repercussions of this unauthorized activity.

2. The brief facts of the case is as follows: 

          The complainant on 28.11.2023 at 3:00 P.M placed order for a T.V. Remote Holding stand from SHOPSY through online.The complainant upon checking the payment status, it displayed as failed, despite of that amount has been deducted from complainant account. After that complainant called the SHOPYS customer care no. 08101006389, but call was disconnected.After that complainant received a call from No. 9064982892 from the SHOPYS CUSTOMER CARE and they instructed the complainant “for individual claim from SHOPYto download an application named ‘AVVALDESK REMOTE DESKTOP” and further they assured the compliant to receive or refund amount to add the credit card to phone pay.

3.    Further complainant stated that, complainant  succumbing on their instruction, she added her credit card, a sum of Rs.2,500/- was deducted from complainant credit card.  Immediately she informed her husband and he blocked the credit card through online. In the mean while another transaction took place for a sum of Rs.16,890/-.

4.  It is stated that, the complainant immediately informed the KOTAK  MAHINDRA BANK customer care about said incident.  Further complainant lodged a complaint to CYBER CELL, on 12.01.2023, the acknowledgement No. 31612230047542, and also complainant filed a formal complaint  on 05.12.2023 to police and police registered the case, the acknowledgement with reference No.LPT 641/2023, GSC NO-PO1799230600993.

5.  The complainant submits that the OP bank demanding for payment of balance amount Rs.19,390/- of credit card.  But the above said amount done by the online  fraud.  So OP bank should investigate fraudulent activity and waive up above said amount.  Hence this complaint.

6. On issuance of notice from this commission, the  notice was duly  served to OP, but OP failed to appear before this commission. Hence OP is placed as ex-parte.

7. The complainant has not filed chief examination evidence/affidavit before the commission. Apart from this, the complainant remained continuously absent since 25.04.2024. Inspite of providing sufficient opportunity, the complaint failed to file chief-examination affidavit and hence, evidence of complainant  is taken as not filed.

8. Perused the documents  and matter is reserved for orders.

9. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that she is entitle for the relief sought?
2. What order?

10. The findings on the above points are as under:

Point No.1           :       Negative

Point No.2           :       As per final order

REASONS

11. POINT NO.1:-   Despite of service of notice, OP not appeared before the commission to contest the matter and they have been placed ex-parte.

12. On the date of complainant evidence, complainant has  not appeared before this Commission and remained absent and not chosen to lead evidence  and  failed to lead any evidence by  way of affidavit. Hence, on 25.07.2024, the evidence of complainant is taken as not filed.  

13. The onus to prove that there was deficiency in service of the OP lies on complainant, but complainant failed to lead evidence under section 38(6) of C.P.Act, 2019. It is statement of fact that the complainant has not filed affidavit evidence and therefore his allegations regarding deficiency of service remains as unsubstantiated.

14. The complainant has failed to lead any evidence by way of affidavit to prove their allegations against OP on record. Mere pleading in complaint that OP has caused deficiency of service and on perusal of records before the Commission submitted by complainant, we failed to find any material which shows that OP caused deficiency of service. The question of fact as the complaint which needs to be proved  by leading evidence is more important with documentary evidence. During the trial of a complaint evidence by way of affidavit describing every point of case is essential.

15. In the above complaint, even after sufficient opportunity is granted to the complainant to prove his case, but on the date of complainant evidence the complainant was not appeared present before this commission, remained absent and failed to lead any evidence by way of affidavit and the evidence of the complainant is taken as not filed and hence the matter is posted for arguments.

16. As per section 38(6) of C.P.Act, 2019, every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record providing that where an application is made for hearing or examination of parties in person or through video conferencing, the District Commission may on sufficient  cause being shown and after recording its reasons in writing, allow the same and according to section 38(a) for the purpose of this section the commission shall have the same powers as vested in civil court under Civil Procedure Code 1908(50 of1908) while trying the suit in respect of the following matters.

1. Summary and enforcing the attendance of any witness or any defendant or witness and examining the witness an oath.
2. Discovering and production of any documents or other material object as evidence.
3. Receiving  of evidence as affidavit.
4. Requisitioning of the report  of concerned analysis.
5. Any other matter which may be prescribed.

17. During the trial of the complaint evidence by way of affidavit describing every point of the case only allegations in writing  made by the complainant could not be treated as complainant evidence by affidavit and the  pleading of complaint is not treated as evidence. As per C.P. Act, 2019 under section 38(3)(c) when the complainant fails to appear  on the date of hearing before the District commission may decide  the complaint on its merits.

18. After sufficient time was granted to the complainant to lead evidence by way of affidavit and since the complainant and counsel remained absent on the date of evidence, the commission comes to the conclusion that the case of deficiency of service alleged is not proved by the complainant. Hence, the complaint is hereby dismissed. Accordingly, we answer the Point No.1 in Negative.

19. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint filed by the Complainant is  hereby dismissed. No costs.
2.  Furnish free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 05^th August 2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SAVITHA AIRANI)            

           MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit: Nil

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SAVITHA AIRANI)            

           MEMBER                                  MEMBER