Tamil Nadu
South Chennai
CC/23/2021
Ms. Tanya Dhadwal - Complainant(s)
Versus
M/s HDFC Bank Limited HDFC House Rep by Manger. - Opp.Party(s)
M.Vidya
18 Apr 2023
ORDER
Date of Complaint Filed : 09.12.2020
Date of Reservation : 28.03.2023
Date of Order : 18.04.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.23/2021
TUESDAY,THE18thDAY OF APRIL 2023
Ms.Tanya Dhadwal,
No.23 C, Ground Floor,
Vignesh Apartments,
45th Street, Nanganallur,
Chenni 600 061. …Complainant.
..Vs..
1. M/s. HDFC Bank Limited,
Rep by its Manager,
HDFC House,
HT Parekh Marg,
166, Backbay Reclamation,
Churchgate,
Mumbai 400 021.
2. M/s. HDFC Bank Limited,
Rep by its Branch Manager,
Cards Division,
8, Lattice Bridge Road,
Thiruvanmiyur,
Chennai 600 041.
3. M/s. HDFC Bank Limited,
Rep by its Branch Manager,
Ceebrose Building,
110, Nelson Manikam Road,
Aminjikarai,
Chennai.
4. M/s. HDFC Bank Limited,
Rep by its Manager,
Local shopping Centre,
Masjid Moth,
Greater Kailash-2,
New Delhi 110 048. .. Opposite Parties.
* * * * *
Counsel for the Complainant : M/s. M.Vidya & N.Jayachander,Advs
Counsel for Opposite Parties : Mr.T.K.M.Sai Krishnan &
Mrs.N.Premalatha, Advs.,
On perusal of records and upon hearing the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, this Commission delivered the following:
ORDER
Pronounced by the President Tmt. B. Jijaa, M.L.,
(i) The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties to pay a sum of Rs.1,93,660.93- together with interest at 24% per annum from 16.11.2020 till date of repayment and to pay a sum of Rs.7,00,000/- towards loss on account of deficiency in service and negligence committed by the Opposite Parties and to pay a sum of Rs.7,00,000/- towards loss on account of mental agony and loss of reputation along with litigation expenses.
I. The averments of Complaint in brief are as follows:-
1. The Complainant submitted that she has been a customer of Opposite Parties, holding Regalia Master Credit Card No.5522605001862998 for more than 10 years. The Complainant has been paying the dues regularly under the credit card as per the statement issued by the Opposite Parties on all transactions done by her. The 1st Opposite Party is registered office of HDFC Bank Limited, the 2nd Opposite Party is the credit card division of the said bank where the Complainant holds the said credit card and 3rd Opposite Party is where the Complainant maintains her Savings Bank Account No.002710501017284.
2. The Complainant submitted that from 02.12.2019 to 20.12.2019. She was on a holiday to Morocco and since her phone did not have international roaming, the Complainant was able to only use internet based facilities on her phone, that too, where there was free WI FI.
Whilst so, on 8.12.2019, late evening, the Complainant was shocked and surprised to see the Opposite Parties email dated the same day in the morning 8.12.2019 from the Opposite Parties Risk Intelligence and Control Unit calling upon the Complainant to confirm if the transaction on her credit card for INR 131,675.67 as approved by Opposite Party at the Merchant, Orange EshopEcom at Casblanca, MA on 8.12.2019 was done by her suspecting fraud.
3. As soon as the Complainant saw the email, the Complainant sent replies including on 8.12.2019, 9.12.2019, 10.12.2019 and 11.12.2019 denying that she has not done the transaction and informing Opposite Party that she was travelling and that her phone could not be reached due the reasons stated above and to forthwith do the needful to secure her card. She also provided Opposite Parties with a local number and requested the Opposite Party to call her. The Complainant further informed to the Opposite Parties that the last two transactions that she had made on the said card was for Moroccan Dirhams 2475 at Le Grant Al Cazar on 4.12.2019 and for Dirhams 1813 at Kasbah Rose on 7.12.2019. In this regard, the Complainant has also lodged a police complaint on 9.12.2019 with the Morocco police and forwarded the ackn9owledged copy to Opposite Party vide the said email. This was followed by a written personal complaint on 27.12.2019 as soon as the Complainant returned to Chennai.
4. The Complainant submitted that the Opposite Party assured to look into the matter, blocked the said card permanently and further issued a new card to the Complainant. However, Complainant was shocked and surprised when she received a statement dated 5.1.2020 from Opposite Party including the fraud transaction to the value of Rs.1,30,998.93 and calling upon the Complainant to pay the due in respect of the said fraud as well. The Complainant immediately called Opposite Parties phone banking services as also sent several emails including email dated 25.1.2020 clearly stating that the said transaction was not done by her as Opposite Parties have suspected and that she was not liable to pay the said amount. However, Opposite Party refused to look into the issue and to make matters worse, the Complainant starting receiving and continue to receive repeated calls and messages harassing Complainant to pay for the fraud transaction.
5. The Complainant submitted that after nearly 8 months, suddenly, the Opposite Party sent email dated 14.8.2020 clearly admitting that the Opposite Parties bank representative had tried contacting the Complainant after the transaction was INCURRED" and not prior. The Complainant was further shocked that first time, Opposite Party have now alleged that OTP was delivered to the Complainant's registered mobile number which is impossible. The Complainant does not have ISD roaming facility on her mobile number 9884155031 and she did not have mobile network during her entire stay in Morocco including on the date of the transaction i.e., on 8.12.2019 and the said fact can be verified from her service provider Vodafone.
6. It is pertinent to point out that the Complainant's other bonafide transactions in Morocco in the said credit card was approved without any verification of one time password or follow up mail. It is obvious that the Opposite Parties apprehended the fraud transaction as is borne out of the follow up mail sent by the Opposite Party the very same day, that being the case, the Opposite Parties ought not to have approved the fraud transaction. Thus the Opposite Party have committed deficiency of service.
7. In this regard, the Complainant sent notice through counsel dated 26.8.2020 calling upon the Opposite Party to compensate the Complainant for deficiency of service and to refrain from demanding the amount of Rs.1,30,998,93/- together with interest, penal interest or, any amount associated with the fraud transaction, for which the Opposite Party sent a false and frivolous reply dated 9.10.2020. Whileso, the Opposite Parties had complained to the Complainant's father that the Complainant was missing, that she was not reachable on her phone and that she has disappeared and sought for details of the credit card. Due to this, the Complainant's parents live in constant fear of safety of their daughter.
8. In this regard, the Complainant lodged police complaint on 29.10.2020 against the Opposite Parties vide email and forwarded a copy of the same to the Opposite Parties. At this juncture, the Opposite Parties had, unilaterally on 1.11.2020 proceeded to withhold a sum of Rs.1,93,660.93 from her savings bank account No. 00271050101284. The Opposite Parties have committed deficiency of service. Hence the Complaint.
II. Written version of Opposite Parties in brief is as follows:
9. The Opposite Parties bank submitted that they had issued Credit card No. 5522 6050 0186 2998 to the Complainant and the said the said credit card facility was extensively used by the Complainant for her personal convenience. The Complainant failed to pay legitimate dues on schedule dates as per the terms and conditions of the card member agreement citing that, transaction dated 08.12.2019 to the tune of Rs. 1,30,998.93 was not made by her. It is pertinent to note here that, the said transaction was approved by the Opposite Parties bank after the usage of the credit card at the Merchandise by the Complainant in Casablanca which is the largest city of Morocco. The Complainant herself had filed documents in the present complaint that, she was in Morocco during the transaction date. Moreover the Complainant had agreed to pay the overdue charges on account of default on the schedule date of payment. In such event, the Complainant is now liable to pay a sum of Rs.15,069.95p as on 07.04.2021 in the said credit card after setting of the lien amount in accordance with the Contract Act Section 171.
10. The Complainant claims that, international roaming facility in her mobile and she was able to use the mobile only for internet facilities, wherever free Wi-Fi was available. But on the contrary, the Complainant in her mail dated 08.12.2019, 9:58 pm addressed to the Opposite Parties had never stated anything as mentioned above, which is only an afterthought. Therefore it is abundantly clear that, the Complainant had failed to prove beyond reasonabledoubt by filing appropriate documents before this Hon'ble Commission that, she has not used her registered mobile number in Morocco.
11. Infact it was the Opposite Parties bank, who wrote the first communication mail to the Complainant about the transaction dated 08.12.2019 and all the mails were appropriately replied by the Opposite Parties. It is pertinent to note here that the Complainant herself has admitted the fact that, the said credit card has been extensively used by her in Morocco. In such event the Complainant cannot make a wild allegation that, she has not made the transaction dated 08.12.2021. It is pertinent note that, the said transaction has incurred on a secured environment by providing secured credit card details to the merchant which is known only to the Complainant. After the Complainant lodged the complaint with the Opposite Parties bank with respect to the transaction dated 08.12.2019, a extensive investigation was conducted by the Opposite Parties bank and it has been resolved that, the Complainant has used the credit card in a secured environment as mentioned above. Even assuming fraud has taken place, the same can be only be attributed to the negligence of the Complainant and not by any deficiency of service by the Opposite Parties bank.
12. The legal notice dated 26.08.2020 addressed to the Opposite Parties bank was appropriately replied by the counsel of the Opposite Parties bank by the notice dated 09.10.2020.
13. Since the Complainant failed to pay the legitimate dues on schedule dates, the Opposite Parties bank had exercised their Right under section 171 of Contract Act to protect the interest of the public money which is handled by the Opposite Parties bank. The Banker's right to lien and set off was exercised by the Opposite Party bank after issuing appropriate Communication to the Complainant.
14. Under Section 39 of the Consumer Protection Act 2019, the term Compensation means equivalence and the award of compensation by the forum has to be based on well recognized principles governing the quantification of loss or injury Suffered to assess compensation and not arbitrarily and also it has to be established whether the loss alleged was direct result of negligence or whether it is remote. In the present case, as stated above, the Complainant had failed to place any incriminating evidence before this Hon'ble Commission against the Opposite Parties bank for deficiency of service, Moreover by any stretch of imagination, the Opposite Parties bank cannot be blamed for any deficiency of service or unfair trade practice as alleged by the Complainant for negligence. Therefore prayed to dismiss the complaint.
III. The Complainant has filed her proof affidavit, in support of her claim in the complaint and has filed 21 documents which are marked as Ex.A1 to A21. The Opposite Parties have submitted their proof affidavit, Ex.B-1 to B-3 were marked on their side. Written Arguments on both side filed.
IV. Points for Consideration
1. Whether there is deficiency in service on the part of the Opposite Parties?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
POINT NO. 1:-
15. The undisputed facts that the Complainant had availed Regalia Master Credit card No. 5522 6050 0186 2998 from the Opposite Parties and had been using the said credit card. The dispute arose on the unauthorised transaction which took place on 8.12.2019 to the value of Rs.1,30,998.93 by using the said credit card when the Complainant was at Morocco.
16. The contention of the Complainant is that she was regular in payment of credit card dues to the Opposite Parties. On 8.12.2019, when she was on a holiday to Morocco, she had received a mail from the Opposite Parties "risk
intelligence uncontrol unit" calling upon the Complainant to confirm the transaction on her credit card for Rs. 1,30,998.93 as approved by the Opposite Party. As soon as the Complainant saw the email she had sent reply mails on 8.12.2019, 9.12.2019, 10.12.2019 and 11.12.2019 denying the said transactions. She had also lodged a police complaint on 9.12.2019 with Morocco Police, and her written personal complaint on 27.12.2019 to the Opposite Parties. As soon as she came to Chennai. The Complainant was shocked to receive the statement dated 5.1.2020 from the Opposite Parties, which contained the fraudulent transaction to the value of Rs.1,30,998.93.
17. The Opposite Parties contended that they had issued the Credit Card No. 5522 6050 0186 2998 to the Complainant and after extensively using the credit card for her personal convenience, the Complainant failed to pay legitimate use on the scheduled dates. The Complainant herself has admitted that she had used the credit card extensively in Morrocco. In event the Complainant cannot deny the transactions dated 08.12.2019 which she has incurred in a secured environment by providing secured credit card Such details to the merchant which is known only to the Complainant. On the complaint made by the Complainant, the Opposite Parties had conducted extensive investigation in respect of the transaction dated 8.12.2019 and it has been resolved that the Complainant had used the credit card in a secured environment. Further submitted that even assuming fraud has taken place the same can be attributed to the negligence of the Complainant.
18. The contention of the Opposite Parties, that the disputed transaction that has taken place on 8.12.2019 was made by the Complainant in a secured environment could not be accepted as the Opposite Parties' bank on 8.12.2019 had sent an email to the Opposite Parties to confirm the transaction that took place on 8.12.2019 for the sum of Rs.1,31,675.67- showing the transaction status as approved, which email is sent by the Opposite Parties suspecting the said transaction. Immediately the Opposite Parties had even blocked the credit card as per Ex.A7. Thereafter the Opposite Parties after a period of 8 months had sent a mail dated 14.8.2020, Ex.A12 stating that the disputed transaction has happened in a secured environment and that the Opposite Parties have sent OTP (One Time Password) for the transaction to the registered mobile of the Complainant on 8.12.2019. It is pertinent to note that the Opposite Parties on one hand had stated that they have tried to establish to contact the Complainant on 8.12.2019 to verify the particulars of the disputed transactions and that their attempts to contact the Complainant did not meet with success and on the other hand after a period of 8 months has come out with a new plea of having sent OTP to the registered mobile of the Complainant on 8.12.2019 to the disputed transactions, which is contradictory to their own earlier statement.
19. Now the point to be considered is whether the Opposite Parties' bank can be held liable for the unauthorised transaction that has taken place. The Complainant has placed reliance on the order dated 13.3.2020 passed by the Hon'ble National Commission, New Delhi in F.A.No.112/2015, the Chairman, Punjab National Bank -VS- Leader Valves Limited, wherein it is observed that whether the bank is responsible for an unauthorised transfer occasioned by an act of Malfeasance on the part of the functionaries of the bank or by an act of malfeasance by any other persons (except the Complainant/Account holder), if the answer is in affirmative, if the account is maintained by the bank, the bank itself is responsible for safety and security, any systemic failure whether by malfeasance on the part of the functionaries or by any other person (except the consumer/Account Holder) its responsibility and not of the consumer, which case is applicable to the Complainant as the bank is responsible for the unauthorised transfer that has occurred by the act of some other persons not by the act of the Complainant.
20. The Complainant had also relied upon the order of the Hon'ble National Commission, New Delhi reported in 2021 (III) CPJ 38, HDFC Bank Limited - VS- Jesna Jose, wherein it was held that bank was liable for the unauthorised transactions and the bank cannot rely upon the arbitrary terms and conditions to wriggle out of its liability towards customers, which is also applicable to the present case.
21. Further the Opposite Parties had withheld a sum of Rs.193.660.93 from her Savings bank account No.00271050101284 of the Complainant and proceeded to adjust the amount, towards the unauthorised transaction, which the Complainant is not liable to pay.
22. On discussions made above, and in the facts and circumstances of the case, this Commission is of the considered view that the Opposite Parties' bank though had suspected some unauthorised transfer on 8.12.2019, and having tried to contact the Complainant in vain, and after sending an email on the same day to confirm the disputed transactions ought to have prevented the unauthorised transfer. As per the above order passed by the Hon'ble National Commission, New Delhi, this Commission is of the view that the Opposite Parties' bank is responsible for the unauthorised transfer that occasioned on 8.12.2019. Therefore by withholding a sum of Rs.1,93,660.93 from the savings account of the Complainant for the unauthorized transaction, which transaction not done by the Complainant, the bank has committed deficiency of service. Accordingly Point No.1 is answered in favour of the Complainant.
POINTS: 2 & 3
23. As discussed and decided in Point No.1, against the Opposite Parties, the Opposite Parties 1 to 4 are jointly and severally liable to pay a sum of Rs.1,93.660.93p with interest @ 6% per annum from 16.11.2020 till the date of realisation and to pay a sum of Rs.25,000/- towards compensation for deficiency in service caused to the Complainant along with a sum of Rs. 5000/- towards cost of this litigation. Accordingly these points are answered.
In the result, this complaint is allowed in part. The Opposite Parties 1 to 4 are jointly and severally directed to pay a sum of Rs.1,93,660.93 p (Rupees One Lakh Ninety Three Thousand Six Hundred Sixty and Ninety Three Paise Only) with interest @ 6% per annum from 16.11.2020 till the date of realisation and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards compensation for deficiency in service, mental agony, pain and sufferings caused by the Opposite Parties 1 to 4 along with a sum of Rs. 5000/- (Rupees Five Thousand Only) towards cost of this litigation to the Complainant within 8 weeks from the date of receipt of this order, failing which a sum of Rs.1,93,660.93p shall carry interest at the rate of 12% per annum from the date of this order till the date of realisation.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 18th of April 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 |
| Xerox copy of RegaliaMaster |
Ex.A2 |
| Xerox copy of Screen Short of the web page of the Opposite Party stating features of Master card |
Ex.A3 | 2.12.2019 to 20.12.2019 | Xerox copy of Passport showing Moroccan visa and seal |
Ex.A4 | 08.12.2019 | Xerox copy of Air Ticket to show that the Complainant was in Marrakesh Morocco
|
Ex.A5 | 07.12.2019 & 10.12.2019 | Xerox copy of Hotel Booking conformation to show that Complainant was in Marrakech Morocco |
Ex.A6 | 08.12.2019 | Xerox copy of Email from Opposite Party intimating fraud transaction |
Ex.A7 | 08.12.2019 | Xerox copy of Reply from Complainant denying |
Ex.A8 | 08.12.2019 To 11.12.2019 | Xerox copy of Email corresponding between to the |
Ex.A9 | 09.12.2019 | Xerox copy of the Complainant before Morocco Police. |
Ex.A10 | 05.01.2020 | Xerox copy of reflecting the credit card statement including fraud transaction. |
Ex.A11 | 25.02.2020 | Xerox copy of Email to the Opposite Parties denying the transaction |
Ex.A12 | 05.03.2020 | Xerox copy of email from the Opposite Party alleging the claimant used the card. |
Ex.A13 | 14.08.2020 | Xerox copy of email from the Opposite Parties alleging the Complainant was incurred transaction. |
Ex.A14 | 26.08.2020 | Xerox copy of the Complainant sent legal notice through her counsel. |
Ex.A15 | 09.10.2020 | Xerox copy of reply sent by the Opposite Parties. |
Ex.A16 | 29.10.2020 | Xerox copy of online police complaint given by the Complainant. |
Ex.A17 | 01.11.2020 | Xerox copy of Banking app screen short showing the amount was under lien. |
Ex.A18 | 01.11.2020 | Xerox copy of letter from the Opposite Parties warning to adjust the amount. |
Ex.A19 | 01.11.2020 | Xerox copy of letter sent by the Complainant to request the Opposite Party to send details of protection and insurance police of the Regalia Mater Card. |
Ex.A20 | Upto date | Xerox copy of credit card statement. |
Ex.A21 |
| Xerox copy of Bank Statement showing amount unilaterally adjusted by the bank. |
List of documents filed on the side of the Opposite Parties:-
Ex.B1 |
| Xerox copy of Card Member Agreement issued by the Opposite Party. |
Ex.B2 |
| Xerox copy of Most Important Terms and conditions of the Card Member Agreement. |
Ex.B3 | 25.01.2017 to 05.05.2021 | Xerox copy of Statement of accounts of the said credit card. |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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