By Sri. MOHANDASAN.K, PRESIDENT

Case of the complainant is as follows: -

1.         The complainant has got account with the first opposite party and his account number is 67113481383. Two years back the first opposite party called the complainant and informed that a credit card is available in his favor which is without any expense. Accordingly, the complainant approached the first opposite party and thereby received credit card with No. 4377487816893388. He used the said credit card only once. On 20/02/2023 the complainant  received a call from mobile No. 6371320766 and   informed that he  had availed the credit card two years back and thereafter did not update his KYC and so he is liable to pay a fine  amount of Rs.4,425/-.  At that time the complainant said to him that the opposite party had informed that there is no any type of service charge on credit card and on that assurance, he received the credit card and so the complainant expressed his unwillingness to remit the fine amount and requested to cancel the credit card. Then the response was that they are prepared to cancel the credit card and the fine on response to a message from their end.  Accordingly, the complainant accepted the message and immediately their on an amount of 50,000/-i.e 25000/- each withdrawn from his account. He informed the same and then it was advised to verify the bank account. Then the complainant approached the bank and the bank officials stated that no amount has been withdrawn from his bank account and thereby the complainant revealed the message received by him to the bank officials and then they called the customer care of credit card and on their verification, it was found Rs. 50,000/- as withdrawn from his account. Immediately the complainant requested to block the account and there by the credit card was blocked. Thereafter the complainant could realize that the card is issued by SBI cards and payments services limited, the second opposite party. The complainant submitted all the records including pan card, Aadhar card for the credit card before the first opposite party. The first opposite party did not provide credit card terms and conditions to the complainant even the details of the authority who is issuing the same. Though the   first opposite party had assured no service charge will be collected, the opposite party collected service charge also.  The complainant submits that a complainant like layman are not aware of the technical issues involved in the credit card transaction.  The first opposite party did not duly inform the terms of credit card to the complainant.  The complainant is striving to overcome the financial difficulties. The loss of fifty thousand rupees caused much hardship to the complainant. The sole reason for the loss of Rs.50, 000/- is non-furnishing of information by the first opposite party about the credit card. The complainant submitted that he availed credit card believing it is belonged to the state bank of India. Only on talking with the first opposite party after loss of money he was informed that the credit card is issued by the second opposite party and it belongs to the second opposite party. Hence the opposite parties are responsible for the loss caused to the complainant and they are liable to reimburse the complainant along with compensation and cost.

2.         On admission of the complaint notice was issued to the opposite parties and on receipt of notice both opposite parties entered appearance and filed version.  Both opposite parties denied the entire averments and allegations in the complaint.

3.         The first opposite party admitted that the complainant is having an SB account with the first opposite party vide account No. 67113481383. But the complaint is not maintainable before this Commission for lack of jurisdiction.

4.         The opposite party denied the averment that the first opposite party had informed the complainant about two years back that the bank had received a credit card in the name of complainant and the same was handed over to him etc. 

5.         The first opposite party submitted that they are a body corporate constituted under State Bank of India Act 1955 and they do not issue credit cards and hence the complaint filed by the complainant with respect the usage of credit card is not maintainable against the first opposite party.  It is submitted that SBI cards and payment services limited who issued the credit card to the complainant is a separate registered company constituted as per companies act. Hence if at all any deficiency in service with respect to the credit card then only the second opposite party company can be held liable and not be state bank of India.

6.         The first opposite party had not issued any sort of intimation to the complainant on 20/02/2023 from mobile phone number 6371320766 requesting to update KYC of the complainant and intimating that he is charged Rs.4,425 on his credit card. If at all any message is received, would be one which is issued from fraudsters. The bank as well as RBI have been informing customers of bank through SMS and public media not to share any details and never share any ID password to any third party and never click any link shared with him by any third party and that such negligent act results in frauds. The customers are also being informed that the bank will never ask such details.

7.         The first opposite party submitted that in this complaint ignoring the messages and directions issued by bank and RBI the complainant had responded to the message sent by some fraudsters and the said act had resulted in the debit of amount from his credit card. Hence the conclusion which can be possible is that the complainant has been defrauded to the tune of Rs. 50,000/- only on account of his negligent act. The fault is with the complainant who had acted upon the instruction given by some fraudsters and shared secret credentials relating to the card obtained by him from the second opposite party.  The allegation in the complaint that he came to know that the credit card is issued by the second opposite party when he made enquires at the branch after the above incident is only a false statement.   Since the card is not issued by the first opposite party, the allegation to the effect that the details pertaining to the card was not explained to him by the opposite party are without any merits or substance.  The complainant herein has not made any complaint to the bank but at the same time a cybercrime was instituted by him hence there is no latches on the part of the opposite party. The submission of the opposite party is that they are un necessary party in the matter and the complainant has to approach the second opposite party for the relief.   The opposite party cited the order of the National Consumer Dispute’s Redressal Commission in the matter of Revision petition No. 3750/2010 dated 15/06/2020.

8.         The second opposite party filed detailed version denying the entire liability of the opposite party. According to the second opposite party, as per the complaint itself that fraud has taken place on his credit card and there is no deficiency of service or unfair trade practice and accordingly the Commission have no jurisdiction to entertain the complaint for the fraud taken place on the credit card and so, to be dismissed in limine.  It is further submitted that the complainant has lodged a police complaint which is pending before cyber-crime and so also the commission have no jurisdiction to entertain a complaint like this one. The opposite party quoted the decisions in the matter of State Consumer Disputes Redressal Commission The Axis Bank Limited v/s   Sh. Pal Singh dated 16/11/2010, The National Consumer Dispute Redressal Commission in the matter of Punjab National Bank Vs. Lft colonel Jagdeep RP 2013, State bank of India Vs. K.K Bhalla and the State commission State Consumer Disputes’ Redressal Commission ICICI bank Vs. Sandheap Sharda 2014.   The contention  of the opposite party is that  the complainant has admitted receipt of OTP details in  his registered mobile number and only providing / authorizing / entering of the OTP the transaction  will get completed if not the same cannot be operational  and automatically the validity  of the OTP get expired and the transaction will not be completed as it is clear negligence of the card holder / complainant, further the OTP recited on the mobile number of complainant one time transaction  which will be valid for certain minutes knowing well the complainant  provided the OTP to the  called upon that  transaction has taken place. It is submitted the same is upheld in the decision of state bank of India Vs. K.K. Bhalla case. The opposite party also mentioned that the complainant / card holder who is the master of the card and in the possession of the card and also the four-digit secret pin / password are in personal custody of the complainant and the (OTP) One Time Password will be sent to the registered mobile number vide SMS before any transaction if he /she does not want to carry out the transaction is at liberty to cancel the same. The submission of the opposite party is that the complainant / card holder should be careful while holding, handing the card / transaction on card and they are the master of the card and wherein they should not entertain any sorts of fake call seeking card details without second thought and as usual every bank sends alert message with regard to the fake and fraud calls by third parties to be aware they informed that “we do not call the customers seeking any clarification on the call”.

9.         The opposite party submitted that there is fraud taken place in the matter and the complainant approached the police and a complaint is registered and so the Commission have no jurisdiction to entertain the complaint i.e., pending investigation on the basis of fraud and OTP based negligence. The opposite party also quoted the definition of unfair trade practice as well as deficiency in service as defined under the Consumer Protection Act.  Hence the submission of the second opposite party is that when the fraud is alleged, police investigation is pending and disclosure of OTP details results negligence on the side of complainant and thereby the complainant is disentitled to approach the Consumer Commission for the redressal of grievance.

10.       The complainant and the first opposite party filed affidavit and documents. The second opposite party did not file affidavit. Hence opposite party No.2 set exparte. The documents on the side of complainant marked as Ext. A1 to A5. Ext. A1 is copy of postal envelop issued from SBI cards and payments services private limited Gurgaon, 122002.  Ext. A2 is photo of cancelled credit card. Ext. A3 is account statement from 10/01/2022 to 06/02/2022. Ext. A4 is copy of account statement between 06/02/2022 to 25/06/2023. Ext. A5 is copy of statement revealing disputed transaction dated 20/02/2023. No documents for opposite party No.1.

11.       Heard complainant and first opposite party, perused affidavit and documents. The following points arise for consideration: -

1. Whether the complaint is maintainable?
2. Whether there is any relation in between the opposite parties?
3. Whether there is lack of care on the side of complainant?
4. Whether there is deficiency in service on the part of opposite parties?
5. Whether there is unfair trade practice on the part of the opposite parties?
6. Relief and cost?

12.       Points 1 and 2

            The opposite parties contended that the complaint before Consumer Dispute Redressal Commission is not maintainable since there is allegation of fraud in this complaint and police investigation is pending.

13.       It can be seen in the light of a decision rendered by Delhi State consumer Redressal Commission in the matter of HDFC Bank limited and another Vs Sudheesh Kumar and another. I (2022) CPJ 33(DEL) that the pendency of trial in criminal courts will not barred consumer courts from adjudicating a complaint. It is also held that despite there being allegations of fraud, forgery, cheating or conspiracy the consumer Fora are not dissuaded from entertaining complaints. The above referred decision rendered by the Apex court in the matter of JJ merchant and others Vs. Srinath Chaturvedi, CCI chambers co-operative housing society limited Vs. development credit bank limited and Trans Mediterranean airways Vs. universal exports and another. So, this Commission finds that the commission has got jurisdiction to entertain the complaint even though a criminal complaint is pending and also allegation of fraud is as part of the issue.

14. The first opposite party has got a contention that they have no any sort of relation with the second opposite party and they are two separate entities.  But the case of complainant is that the complainant was called from the office of the first opposite party and informed that a credit card is available in his favor and thereby he approached the first opposite party and as per the instruction of the first opposite party the complainant furnished the details to the first opposite party for availing credit card. The first opposite party did not specifically deny the submission of the complainant. The contention of the first opposite party is that the second opposite party is a separate entity and the credit card is issued by second opposite party and so the first opposite party have no any sort of responsibility towards the complainant.

15.       On the other side, the complainant side submitted that credit cards in India , SBI card is a joint venture between state bank of India , the country’s oldest and largest bank , and GE capital.    It can be seen that the complainant is an account holder of the first opposite party and the first opposite party introduced the credit card to the complainant and thereby the complainant availed the credit card of the second opposite party, which according to the complainant he came to know only after the disputed transaction. So, we find that the opposite parties are interconnected though they are separate entities are equally responsible to the customers.   The first opposite party provided service on behalf of the second opposite party and thereby received request for credit card from the complainant.  

16.       It is also relevant to mention that the opposite party cited a decision rendered by the Hon’ble National Consumer Disputes Redressal Commission in the matter of revision petition No 3750/2010. The opposite party have a contention there is no privity of contract in between the complainant and the second opposite party. But as far as Consumer Protection Act is concerned, hence, a beneficiary is also is entitled to proceed against the service provider. Hence lack of privity of contract do not debar the complainant from proceeding against the second opposite party.  In this complaint, the complainant is the account holder of the first opposite party and also a holder of credit card of the second opposite party.  The complainant availed credit card of the second opposite party through the first opposite party and so he is entitled to proceed against the opposite parties and the Consumer Disputes Redressal Commission has got jurisdiction to entertain the present complaint, we answer the first and second points accordingly.    

17.       Point No.3

            The case of the complainant is that he received a telephonic call from a particular mobile number and informed him that for the last two years he has not updated his KYC and thereby he is liable to pay a fine of Rs.4, 425/-.Then the complainant responded that the opposite party had assured that they will never collect any service charge and thereby he accepted the offer for credit card and so he is not ready to pay the fine as demanded.  Then the response from the caller was that the complainant should respond to his message and then they will waive the fine. The complainant responded accordingly but he noted loss of Rs.50, 000/- from his account as Rs.25, 000/- each. Then the complainant immediately approached the first opposite party and the first response from the bank was that no amount has been withdrawn from the account of complainant. Then the complainant shown the message received in his mobile phone and then the first opposite party called the customer care of the credit card and then it was confirmed loss of 50,000/- rupees. Immediately   his credit card was blocked. From the above narration it can be seen that the complainant was responded to a call which he thought from the first opposite party and responded there and thus the complainant lost huge amount of Rs.50, 000/- from his account. The specific contention of the complainant is that he immediately rushed to the first opposite party and reported the issue of loss of money from his credit account. So it can be seen that the complainant have no role in the fraud took place with his credit card account. The complainant never disclosed any credentials of credit card i.e OTP or CVV.    The complainant has got a case that the first opposite party while inducing for availing credit card no terms and conditions were duly informed.

 18.      The Reserve Bank of India has issued sufficient guidelines to the banking institutions in the matter of liability of customers in unauthorized electronic banking transactions. The notification dated 06/07/2017 of the Reserve bank of India has categorically stated the burden of proof is lie on the bank in the case of unauthorized electronic banking transactions. In this complaint the opposite parties never taken any initiative to discharge the liability to prove the customers’ liability in the matter of unauthorized electronic banking transaction. On the other hand the complainant categorically denied the allegation of disclosure of credential information regarding the transactions.    So there is no reason to find that there was any lack of care on the side of complainant in the transaction of credit card account, we find the third point accordingly.

19.       Points 4 and 5

            The complainant herein is a layman maintaining an account with the first opposite party and the first opposite party informed the complainant that credit card is available in favor of the complainant without any expense and thereby he approached the first opposite party and the first opposite party processed a credit card in favor of the complainant. The complainant submitted that all the transactions took place from the premises of the first opposite party and through the employees of the first opposite party regarding the issuance of credit card.   The complainant contended that only when he approached the first opposite party with an issue of fraudulent transaction, the first opposite party informed the complainant the credit card is owned by second opposite party. The first opposite party did not inform the complainant how to use the credit card, the terms and conditions of the card and who will issue the card etc. He approached the first opposite party on information that credit card is available in his favor without any expense. The Commission do not find any reason to discard the contention of the complainant regarding the process of issuance of credit card to the complainant. The documents produced by the parties do not reveal that the opposite party had informed entire terms and conditions of credit card.  It is the right of a consumer to be informed about the quality, quantity , potency , purity, standard and price of goods, products or services as the case may be so as to protect the consumer against unfair trade practices as provided in Consumer Protection Act 2019 section 2(9) (ii). In this complaint the complainant specifically contended that the opposite parties did not inform the terms and conditions of the credit card service. Moreover he submitted that there was an assurance that no service charges will be recovered from the complainant as part of credit card service. But the complainant produced document Ext. A4 to show that the opposite parties recovered service charge from the complainant on account of credit card service. The opposite parties did not deny that they collected service charges from the complainant towards credit card. 

20.       The opposite parties contended that the complainant is very well aware of the terms and conditions of credit card and also the fact the credit card is issued by the second opposite party.  It is further submitted that the customer is the credit card holder who duty is bound to take utmost care in dealing credit cards. He is the custodian and owner of the credit card and so he is bound to keep credentials relating to the transaction. If any lack is on the side of card holder there is no liability to the opposite party.  The submission of the opposite party is that sharing of password and payment credentials disentitle the card holder to claim any right against the opposite parties.

21.       It can be seen that the Reserve Bank of India is highly cautious on fraudulent transaction through the credit cards. So, the Reserve Bank of India issued appropriate circulars directing the financial institutions and the public to take abundant care in online transactions regarding credit card issue. The reserve bank had issued specific circular stating there is zero liability for the customer credit card holder when the fraudulent transaction is duly reported to the bank in time. The card holder is liable only when there is lack of care from the side of card holder. At the same time the lack of care from the side of card holder is to be established by the bank itself. If the bank fails to establish lack of care on the side of credit card holder, then the bank is liable to indemnify the loss of credit card holder.

22.       In this complaint the opposite parties failed to establish there was lack of care from the side of credit card holder in handling confidential details of credit card transactions. Moreover, the opposite parties failed to establish that the complainant was duly informed about the terms and conditions of credit card transactions. There is no reason to doubt in the matter that the complainant approached the first opposite party bank on a telephonic call to avail the credit card. So the first opposite party bank is primarily responsible to provide information regarding terms and conditions of the credit card. Hence, we find there is deficiency in service and unfair trade practice on the side of both the opposite parties.

23.       Point No.6

            The complainant prayed for compensation of Rs.1, 00,000/-and also to pay the Rs.50, 000/- lost from the account of the complainant.  It is an admitted fact the complainant lost an amount of Rs. 50,000/- from the account of complainant. But the opposite party submitted that the loss was caused due to lack of care from the side of complainant itself. But we find that the responsibility to prove the lack of care on the side of complainant is with the opposite parties and the opposite parties failed to prove the same. Hence the opposite parties are liable to pay Rs.50, 000/- to the complainant, the lost amount of the complainant. It is also relevant to not that though the first opposite party has got a contention they are separate entities and there is no liability for the first opposite party on account of deficiency in the service of the second opposite party but the fact and evidence reveals otherwise. There is close nexus between the opposite parties and there is a fact that the credit card is a joint venture of opposite parties. Moreover the complainant is a customer of the first opposite party and so thereby the first opposite party is highly responsible to provide entire security to the hard earned money of complainant like common man.  The first opposite party is responsible to provide technical assistance and cyber security to the complainant.

24.       In this complaint the opposite party produced a decision rendered by National Consumer Disputes Redressal Commission in the matter of revision petition No. 3750/2010. The commission have gone through the cited decision and found that the decision is applicable to that particular complaint only. In the above cited decision, the District consumer Forum and State consumer Commission  had directed the state bank of India to publish in the newspapers, its position, inter alia, in respect of the use of its logo by SBI cards and payments services private limited.  It is very important to note that the issue was brought before the District Commission by the director of consumer affairs and fair business practices, government of west Bengal, against State Bank of India and SBI cards and payments services private limited seeking compensation for deficiency of service on their part for rendering services to several credit card holders.  The District Commission and thereafter the state Consumer Disputes Redressal Commissions found the matter in favor of the complainant. But in the revision petition the National Commission found that  the Consumer Dispute Redressal Commission have no power to pass an order against state bank of India directing to publish in the newspapers, its position inter alia , in respect of the  use of its logo by SBI cards and payments services  private limited .

25.       In this complainant the complainant did not seek any direction against the first opposite party to publish or to take any steps to identify the separate entity of the first and second opposite parties.

26.       But it is vital to note that the complainant did not approach directly the second opposite party but approached through the first opposite party, State Bank of India. The complainant submitted all the relevant information to the first opposite party and the first opposite party processed the request of the complainant for a credit card. It is relevant   to mention that the first opposite party is not a general service center to the public but a service center meant to provide service to its customers.  The complainant here is an account holder / customer of the first opposite party and thus the first opposite party is with all the personal details   to avail a credit card for the complainant. There is every chance to call the complainant by the first opposite party and to induce to avail a credit card of the second opposite party. So we do not accept the contentions of the first opposite party that there is no any relation between the opposite parties and they are not liable for the defective service of the second opposite party. The commission finds both the opposite parties are responsible to compensate the loss of complainant. The complainant immediately on notice of the loss of amount contacted the first opposite party and admittedly the police department.  But there was no proper action or relief to the complainant hence, the complainant suffered a lot of inconvenience and hardship due to the unfair and defective practice and service from the part of opposite parties. The claim of complainant for a compensation of Rs.1, 00,000/- is not an excess amount considering the nature of attitude and service rendered by the opposite parties. Hence we allow rupees 1, 00,000/- as compensation towards the inconvenience, hardship and mental agony suffered by the complainant.  The complainant also entitled cost of Rs.5, 000/- from the opposite parties.

27. In the light of above facts and circumstances   we allow this complaint as follows:-

1. The opposite parties are directed   to pay an amount of Rs.50, 000/- (Rupees fifty thousand only) to the complainant on account of loss sustained to the complainant from his credit card account.
2. The opposite parties are directed to pay Rs.1, 00,000/- (Rupees one lakh only) to the complainant on account of defective service and thereby caused inconvenience and hardship to the complainant.
3. The opposite parties are directed to pay Rs.5, 000/- (Rupees five thousand only) as cost of the proceedings.

The opposite parties shall comply this order within one month from the date of receipt of copy this order, failing which the complainant is entitled interest at the rate of 9 % per annum for the above said entire amount from the date of order to till date of payment.

            Dated this 27^th day of February, 2024.

MOHANDASAN K., PRESIDENT

    PREETHI SIVARAMAN C., MEMBER

         MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1to A5

Ext.A1: Copy of postal envelop issued from SBI cards and payments services private

               limited Gurgaon, 122002.

Ext.A2: Photo of cancelled credit card

Ext A3: Account statement from 10/01/2022 to 06/02/2022.

Ext A4: Copy of account statement between 06/02/2022 to 25/06/2023.

Ext A5: Copy of statement revealing disputed transaction dated 20/02/2023.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Nil

MOHANDASAN K., PRESIDENT

        PREETHI SIVARAMAN C., MEMBER

       MOHAMED ISMAYIL C.V., MEMBER