Date of filing:     19.01.2021

                                                                                                                   Date of disposal: 08.12.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                  THIRU.P.MURUGAN. M.Com.,ICWA(Inter), B.L.,                                  .....MEMBER-II

                

CC. No.18/2021

THIS THURSDAY, THE 08th DAY OF DECEMBER 2022

 

Mr.G.Elangovan, S/o.R.Gopalakrishnan,

Plot No.1183, T.N.H.B,

Avadi, Chennai 600 054.                                                                 .........Complainant. 

                                                                          //Vs//

1.The Authorised Signatory, 

   M/s.Bajaj Finserve Limited,

   Credit Card Division, Raheja Tower,

   Mount Road, Chennai 600 002.

 

2.The Authorised Signatory,

   Bajaj Finserv,  4th Floor, Corporate Office,

   Off Pune-Ahmednagar Road,

   Viman Nagar, Pune -411014, Maharastra, India                 ......Opposite parties.

 

 Counsel for the complainant                               :   M/s.L.Ravichandran, Advocate.

Counsel for the  opposite parties                         :   Mr.M.Arunachalam, Advocate.

 

This complaint is coming before us on various dates and finally on 24.11.2022 in the presence of M/s.L.Ravichandran, Advocate counsel for the complainant and Mr.M.Arunachalam, Advocate counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to the credit card transaction of the complainant along with a prayer to direct the opposite parties to repay the illegal debit transaction and illegal collection of Rs.40,000/- and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he was a retired Senior Citizen, operating a Credit Card Account bearing No.2030 4001 2425 9526.  On verifying his credit card statement that a transaction of purchase dated on 30.06.2019 in Flip cart worth about Rs.65,000/- was made without his knowledge.  Likewise a purchase was made on 30.07.2019 worth about Rs.50,000/- done by misusing his credit card in both the transactions.  The complainant have not been sent by any SMS alert or OTP verification for those fake transactions.  Hence the complainant requested the opposite parties concerned to block his credit card on 05.08.2019 and to initiate proper enquiry about the illegal and fraudulent transactions.    The complainant also lodged a Police complaint on 06.08.2019 at Avadi, for which they issued a CSR vide No.1336/2019 dated 06.08.2019. It was submitted that in the meantime, the opposite parties Bajaj Finserve Limited Credit Card division illegally in a manner engaged one Mr.Muralidharan who impersonated himself as the Deputy Commission of Police, Ambattur Police division stated that a court warrant was pending and instructed the complainant to remit a sum of Rs.40,000/- with Bajaj Finserve Limited, Mudichoor Branch or otherwise to surrender before the Local Station.  The complainant believed the words and remit the amount of Rs.40,000/- at Mudichoor Branch, Bajaj Finserve Limited that is with the opposite parties branch on the basis of the impersonated person’s phone call which amounts to commission of fraud and cheating against the complainant. It was further stated that when he was not involved in any purchase transaction, how he was bounded with a finance agreement No.403ECFEW858456 for the fraudulent purchase transaction of consumer durables on 30.07.2019 and the opposite partiessent a  legal notice dated 09.11.2019 vide No.8174/Nov/2019 and Lan No.403ECREW858456. Also when the complainant was not involved in the fake transaction he bounded for the finance agreement No.403ECFEQ514707 dated 31.05.2019 amounts to Rs.60,000/-.  During, the relevant time the complainant’s Credit Card was with him and the complainant was not verified by any SMS alerts and OTP verification about the fraudulent transactions. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to repay the illegal debit transaction and illegal collection of Rs.40,000/- and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties.

Crux of the defence put forth by the opposite parties:-

The opposite parties filed version disputing the complaint allegations contending interalia that the complaint was defective, baseless and devoid of merits for the reason that the complainant had made Bajaj Finserv as party to the complaint. It was further submitted that there was no such company in the name of Bajaj Finserv and moreover BAJAJ FINSERV was a trade/brand name which is being used by Bajaj Finance Limited. The Bajaj Finserv Limited was the holding company of Bajaj Finance Limited.  The complainant has not made Bajaj Finance Limited as party to the complaint hence the complaint is to be dismissed.  It was submitted that the complainant had taken loan from them vide credit card and as such the relation between the complainant and the opposite party is that of debtor and creditor and not that of consumer and service provider and hence this commission has no jurisdiction to entertain the complaint.  Adjudication of complaint filed by the complainant is complex in nature, involves a detailed oral evidence/investigation which does not come under the purview of consumer commission as the proceeding before the Consumer Commission was summary in nature. Whoever makes online transaction, OTP will be sent to their registered mobile number for security purpose and only when the same was entered and validated the transaction would be completed.  The complainant had averred that without his knowledge a purchase dated 30.06.2019 in Flip Cart for Rs.65,000/- was made and again another purchase on 30.07.2019 for Rs.50,000/- was made by misusing his card. The complainant sent a legal notice dated 05.08.2020 and the same was duly replied by the 2nd opposite party on 21.08.2020 wherein the 2nd opposite party had informed the complainant that the Online Loans have been availed by the complainant only and the said authentication was an OTP based transaction, wherein a SMS was duly sent to the complainant’s registered mobile number i.e.9789917693 with an alert stating ’DO NOT SHARE YOUR OTP WITH ANYONE’.  Hence without the knowledge of the complainant online purchase using the card would not have happened and therefore the complainant was liable for his own act.  The complainant availed an EMI Network Card from opposite party in the month of July 2016 and had issued the card towards the purchase of the product i.e. two mobile phones from the E-Commerce Website i.e. “FLIPKART INTERNET PRIVATE LIMITED”.  Before approving and releasing the loan amount the opposite party for confirmation of the contract had sent a caution message to the complainant on his mobile number, which is registered with the opposite party, requiring the complainant not to share the OTP with anyone.  However, the complainant in real time basis authenticated the online transaction, considering the credentials of the complainant, the loan was availed vide LAN: 403ECCFEW858456, 403ECFEQ514707 in the name of the complainant.  Since the complainant was a defaulter towards the payment of the said dues, as per terms, in case of default and no payment of the EMI’s the opposite party has the right to initiate the legal actions against the defaulter. The said purchases were made after proper authentication and the same has been made only after receiving the consent and authentication of the complainant. Thus they sought for the complaint to be dismissed.

The complainant had filed proof affidavit and documents Ex.A1 to Ex.A15 were marked on their side.  On the side of opposite parties proof affidavit was filed and documents Ex.B1 to Ex.B4 were submitted on their side. 

Points for consideration:-

Whether the alleged bogus transaction with respect to the credit card transactions of the complainant amounts to deficiency in service committed on the part of opposite parties?

If so to what relief the complainant is entitled?

Point No.1:-

On the side of the complainant the following documents were filed in support of the complaint allegations;

Representation letter issued by the complainant to the opposite party dated 05.08.2019 was marked as Ex.A1;

Copy of CSR dated 06.082019 was marked as Ex.A2;

Legal notice issued by the 2nd opposite party to the complainant dated 12.09.2019 was marked as Ex.A3;

Legal notice issued by the 2nd opposite party to the complainant dated 09.11.2019 was marked as Ex.A4;

Legal notice issued by the 2nd opposite party to the complainant dated 09.11.2019 was marked as Ex.A5;

Payment receipt issued by the 1st opposite party dated 17.09.2019 was marked as Ex.A6;

Legal notice issued by the complainant to the opposite parties dated 05.08.2020 was marked as Ex.A7;

Reply letter given by the opposite parties to the complainant dated 21.08.2020 was marked as Ex.A8;

Payment receipt issued by the 1st opposite party to the complainant was marked as Ex.A9;

Police Complaint given by Avadi TNHB Residence Consumer Protection Association dated 17.08.2020 was marked as Ex.A10;

Payment Receipt from the 1st opposite party to the complainant was marked as Ex.A11;

Statement of Loan Account No.403ECFEW858456 of the complainant was marked as Ex.A12;

Statement of Loan Account No.403ECFEW353840 of the complainant was marked as Ex.A13;

Letter of settlement for loan account No. 403ECFEW353840 by the opposite party dated 27.02.2020 was marked as Ex.A14; 

Complaint against the opposite parties to the Commissioner of Police, Vepery, Chennai by the complainant dated 29.02.2020 was marked as Ex.A15;

On the side of the opposite parties the following documents were filed in support of their contention;

Copy of power of Attorney was marked as Ex.B1;

Copy of reply to the legal notice dated 05.08.2020 was marked as Ex.B2;

Copy of statement of Account No. 403ECFEW858456 was marked as Ex.B3;

Copy of statement of Account No. 403ECFEQ514707 was marked as Ex.B4;

The learned counsel appearing for the complainant argued that for the alleged illegal transactions no OTP or SMS was received by the complainant and that the Credit Card of the complainant was misused by some third parties with the active connivance of the Bank officials and a sum of Rs.81,097/- has been illegally recovered from the complainant.  Though a police complaint was given the same was not processed.  Thus it is submitted by him that the opposite parties had committed deficiency in service in the purchase of I Phone out of the Credit Card of the complainant illegally and he sought for the compliant to be allowed as prayed for. 

On the other hand the crux of the oral arguments adduced by the learned counsel appearing for the opposite parties is that the complaint itself is not maintainable for reasons like there is only banking relationship with the complainant and they were mere financiers and could not be held liable as they were not rendering service to the complainant.   Further it is argued that OTP and SMS have been sent to the complainant and only after verifications the transaction had occurred. If at all the transactions had occurred by hackers or by any third party, then only the complainant who is responsible for the same they could not be held as there is no part on them in the alleged fraudulent transactions.

We heard the oral arguments of both parties. Though a preliminary objection as to maintainability of complaint was taken, this commission is of the view that though the opposite parties are Financiers, they render service by way of issuing Credit Card to the complainant and thus the same could be accounted for under the category of ’service‘.  Hence the complaint is maintainable under the Consumer Protection Act,2019.

On merits it is seen that vide Ex.A1 the complainant had informed the opposite parties to block the card on 05.08.2019 alleging that his card was misused without his knowledge.  Further a Police complaint was also given on 06.08.2019 with regard to the alleged bogus transaction.  In the said documents it is clearly mentioned that using the complainant’s Credit Card on 30.06.2019 and 30.07.2019 products were purchased.  When the complainant doubts the transactions on 30.06.2019 to be bogus or fake, he ought to have immediately approached the opposite parties complaining the same.  However he waited for more than one month to give complaint to the opposite parties as well as to the police.  In the mean time another disputed transaction also took place on 30.07.2019.  This creates a doubt over the allegations raised by the complainant.  Further it is seen that by the alleged transactions products like l-phone had been purchased by way of loan and a valid loan agreement has been executed.  Though the complainant refuted the contentions of the opposite parties that he did not receive any SMS or OTP for the alleged transactions this commission could not believe the same. It is also to be taken into account that the police complaint given by the complainant was not processed.  In such circumstances on the available materials and pleadings this commission could not come to a conclusion that the alleged transactions were bogus/fraudulent and that the opposite party had any committed deficiency in service.  If at all the complainant intends to prove the alleged transfers occurred only due to the neglect or active participation of the official of the opposite parties he could approach the appropriate Civil Forum by way of sufficient evidence.  Thus we answer the point accordingly.

Point No.2:-

As we have held above that the complainant failed to prove that the opposite parties had committed any deficiency in service to the complainant, he is not entitled any compensation from the opposite parties.  Thus we answer the point accordingly.  

In the result, the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18th  day of December 2022.

 

  Sd/-                                                                                                                Sd/-

MEMBER-II                                                                                                  PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 Representation letter issued by the complainant to the opposite party. Xerox

Ex.A2 06.08.2019 Copy of CSR. Xerox

Ex.A3 12.09.2019 Legal notice issued by the 2nd opposite party to the complainant. Xerox

Ex.A4 09.11.2019 Legal notice issued by the 2nd opposite party to the complainant. Xerox

Ex.A5 09.11.2019 Legal notice issued by the 2nd opposite party to the complainant. Xerox

Ex.A6 17.09.2019 Payment receipt issued by the 1st opposite party. Xerox

Ex.A7

05.08.2020 Legal notice issued by the complainant to the opposite parties. Xerox

Ex.A8 21.08.2020 Reply letter given by the opposite parties to the complainant. Xerox

Ex.A9 ............. Payment receipt issued by the 1st opposite party to the complainant Xerox

Ex.A10

17.08.2020 Police Complaint given by Avadi TNHB Residence Consumer Protection Association Xerox

Ex.A11 ............. Payment Receipt from the 1st opposite party to the complainant Xerox

Ex.A12 ............... Statement of Loan Account No.403ECFEW858456 of the complainant Xerox

Ex.A13 Statement of Loan Account No.403ECFEW353840 of the complainant Xerox

Ex.A14 27.02.2020 Letter of settlement for loan account No. 403ECFEW353840 by the opposite party. Xerox

Ex.A15 29.02.2020 Complaint against the opposite parties to the Commissioner of Police, Vepery, Chennai by the complainant. Xerox

 

List of documents filed by the pposite parties:-

 

Ex.B1 ................. Power of Atorney. Xerox

Ex.B2 20.08.2020 Copy of reply to the legal notice dated 05.08.2020 Xerox

Ex.B3 .............. Copy of statement of Account No. 403ECFEW858456 Xerox

Ex.B4 ............... Copy of statement of Account No. 403ECFEQ514707 Xerox

 

 

 

  Sd/-                                                                                                                    Sd/-

MEMBER-II                                                                                                    PRESIDENT