Date of filing:  15.06.2020                                           Date of Disposal: 30.05.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 30^th DAY OF MAY, 2023

CONSUMER COMPLAINT NO. 393/2020

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mrs. Piyali Pal,

W/o. Saikat Pal,

Aged About 42 Years,

R/at: Flat-D 0326,

Brigade Golden Triangle,

Hoskut Village, Bidarahalli Hobli,

Bangalore, Karnataka-560049.

- V/s -

1) M/s. IndusInd Bank,

Cards Services,

961/962, Solitaire Corporate Park,

167, Guru Hargovindji Marg,

Andheri-Ghatkopar Link Road,

Chakala Andheri (East),

Represented by its Manager.

(Rep. by Sri. S.M.Anees Ahamed, Advocate)

2) M/s. Amazon India Limited,

Brigade Gateway, 8^th Floor, 26/1,

Dr. Rajkumar, Malleshwaram(W),

Represented by its Manager.

(Rep. by Sri. Vamshi Krishna, Advocate)

//JUDGEMENT//

BY SRI. RAJU K.S, MEMBER

01.    The complainant has filed this complaint under Section-12(1)(a) of the Consumer Protection Act, 1986 seeking for a direction to opposite parties for fair bank and trade practice and grant compensation of Rs.50,000/- with interest at the rate of 24% per annum and such other reliefs.

02.    The case of the complainant is that, the complainant booked the items under order No. 402-7895874-9666706 for an amount of Rs.5,198/- and order No.402-2376779-0590749 for an amount of Rs.1,899/-.  Out of two orders one order for Rs.5,198/- product was delivered with missing parts to the complainant on 15.05.2020.  With regard to the another order for Rs.1,899/- the product has not delivered.  On 16.05.2020 one person claiming the opposite party No.2 representative called the complainant via mobile phone No.07699737147 and informed that, he is sorry for delay and inconvenience and he would refund the above amount immediately over the call itself.  For that, he asked to fill the form and to send a message via mobile phone No.8250056460.  As per the instructions the complainant submits the filled form.  Thereafter the complainant received a message from opposite party No.1 on 16.05.2020 around 11.48 AM as she noticed being in call with the caller there was simultaneous transactions of amount Rs.9,999/-, Rs.9,999/- Rs.2/- and Rs.6,500/-, total amount of Rs.26,500/-.  For these 4 transactions the complainant had not initiated or did not share any login credential or CVV, OTP. 

03.    Thereafter the complainant tried to reach opposite party No.1 – customer service to stop payments and block the card instantly.  But unfortunately the complainant did not reach opposite party No.1.  On 16.05.2020 the complainant registered a complaint and reported the same before the Cyber Crime Police Station, Bangalore.  The Cyber Crime Police has raised FIR in this regard.  Thereafter the opposite party No.1 representative called the complainant via mobile phone No.9594319996.  Immediately the complainant requested to stop the fraudulent transaction payments.  But the opposite party No.1 did not initiated any steps towards stoppage of fraudulent transactions.  Further the opposite party No.2 has breached the trust of complainant and leaked the product issue related information and their careless act and system breach the complainant suffered loss.  In-spite of report of the fraudulent transaction immediately the opposite party No.1 has failed to stop payments.  Thereby the opposite party No.1 & 2 are liable to the complainant under unfair trade practice. 

04.    The opposite party No.1 & 2 not acted after immediately report of the phishing activities by the complainant.  The opposite party No.2 cheat the complainant in the name of refund process and opposite party No.1 non- cooperation for informing bank fraud.  Thereby both opposite party No.1 & 2 are liable under deficiency of service and to compensate the complainant as prayed for.

05.    The opposite party No.1 has filed his version by denying the allegation made in the complaint.  Further the opposite party No.1 stated that, the complainant holding the credit card account No.4412855920839017 with the opposite party No.1 Bank under the name of IndusInd Bank, Platinum Aura Credit Card from December-2018.  Further the complainant has used her credit card to the following payments with opposite party No.2 to purchase some products. 

Among them one product was not delivered to the complainant and she raised her concern over under deficiency of service in social websites like face-book and twitter.  Subsequently the complainant had received call from the person who claimed himself as representative of opposite party No.2 and instructed to fill the form and submit to resolve the issue of non-delivery of the product.  As per instructions the complainant submitted the form via mobile phone No.8250056460.  The complainant without making any check or verifying the credentials filled the form which used by that unknown person and made 04 fraudulent transactions for a total sum of Rs.26,500/-, which has deducted from her credit card.  On 16.05.2020 the fraud management team contacted the complainant and noticed with regard to the suspicious transactions.  Based on complainant consent and for security reasons immediately deactivated the credit card for further misuse.  As per FIR the complainant admitted she clicked on the link and post which transactions incurred on the card account.  But the complainant now claims that, the said transactions are not initiated by herself or she did not shared any OTP or CVV out of the above fraudulent transitions.  The opposite party No.1 – Bank partially credited the amount of Rs.17,239/- and for the rest of the amount Rs.9,261/-, the opposite party No.1-Bank is  cannot be held liable.  The above fraudulent transactions are happened due to the negligence of the complainant and not on the part of the opposite party No.1 and the Bank cannot be held liable under deficiency of service.  Even the Banking Ombudsman was also closed the complainant’s complaint on 11.09.2020 in this regard.  Hence, it is sought for dismissal of the complaint.

06.    The opposite party No.2 has filed their version and stated that, they are providing e-commerce market place as an intermediary.  The opposite party No.2 has not liable to any unauthorized transactions.  As per the agreed terms and conditions towards usage of opposite party No.2 Platform, the opposite party No.2 is not liable as stated by the complainant.  The product has solely packed, sealed and delivered to the complainant independent 3^rd party seller i.e., Perfect Homes and no role assigned to the 2^nd opposite party towards delivery.  If any, complainant with regard to the non-delivery of the product the compliant has to make the complaint to 3^rd party seller only.  With regard to the fraudulent transactions happened with the complainant there is no role to play in this instant and the opposite party No.2 cannot held liable due to this transaction.   Further there is no deficiency of service by the opposite party No.2 and sought for dismissal of the complaint.

07.    The representative of the opposite party No.1 has filed his affidavit in the form of his evidence as RW.2 and got marked EX.R.6 to EX.R.14 and the representative of the opposite party No.2 has filed his affidavit in the form of his evidence as RW.1 and got marked EX.R.1 to EX.R.6.  The complainant not filed any affidavit evidence in this complaint.  The opposite party No.1 & 2 have filed their respective written arguments. 

08.    Based on pleadings and documents the points that would arise for consideration are as under:-

  (1) Whether the complainant has proved deficiency in service on the part of the opposite parties?

  (2) Whether the complainant is entitle for the 

    relief as sought for ?

       (3) What order ?

09.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In negative

Point No.2 :  In negative

Point No.3 :  As per the final order for the following:-

REASONS

10. POINT NO.1 & 2:-  To avoid the repetition of facts of the complaint we have discussed point No.1 & 2 together.  The complainant had filed this complaint for the alleged deficiency of service by the opposite parties.  The complainant specifically alleged that, the opposite party No.2 has not initiated any proceedings with regard to the complaint made by the complainant for order No.402 – 2376779-0590749 for an amount of Rs.1,899/-.  The opposite party No.2 has failed to deliver the product as ordered by the complainant through his E-commerce website.  Further the opposite party No.2 has failed the trust reposed by the complainant with regard to the login credentials and data provided by the complainant with the opposite party No.2.  Further the opposite party No.2 has failed to stop the fraudulent transactions happened with the complainant phone number attached to her Bank.  Further the opposite party No.2 has leaked the product issue information provided by the complainant and escalated the issue with the 3^rd party which amounts to phishing activities with the complainant Bank transactions. 

11.    Further the complainant alleged that the opposite party No.1 has failed and showed gross negligence in check the fraudulent transactions with her debit card account.  The opposite party No.1 has not initiated any proceedings to refund the amount even she complained and reported fraudulent transactions immediately. 

12.    To substantiate the allegations made in the complaint the complainant has not tendered her affidavit evidence and documentary evidence as contemplated under Section 38(6) of Consumer Protection Act, 2019. 

13.    Section 38(9) of Consumer Protection Act, 2019 contemplates that, the District Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, while trying a suit in respect of receiving of evidence on affidavits.   The complainant shall tender her sworn affidavit evidence by entering in to witness box.  Same has not been followed by the complainant in the present complaint.  The complainant had failed to prove the burden casted on her.  In view of the above, the complainant has failed to prove the deficiency of service on the part of the opposite party No.1 & 2 as alleged.  Accordingly, we answer point No.1 & 2 in negative.

14.    POINT NO.3:-     As discussed supra, for the foregoing reasons we proceed to pass the following:-

ORDER

The complaint is dismissed.  No order as to costs.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 30^th Day of May, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

• NIL - 

Documents got marked for complainant side:

– NIL –

Witness examined for the opposite party No.2 side: 

Sri.G.S. Arjun Kumar, Legal counsel of opposite party No.2 (RW-1) has filed affidavit in the form of his evidence in chief. 

Documents marked for the Opposite Party No.2 side:

02) Computer downloaded copy of board resolution – EX.R.2.

03) Computer downloaded copy of tax invoice dt.15.03.2020 – EX.R.3.

04) Computer downloaded copy of RBI directions dt: 24.11.2009 – EX.R.4.

05) Computer downloaded copy of conditions relating to use of amazon – EX.R.5.

Witness examined for the opposite party No.1 side: 

Sri. Gengi Reddy, Branch Manager in M.G. Road Branch of opposite party No.1 (RW-2) has filed affidavit in the form of his evidence in chief. 

Documents marked for the Opposite Party No.1 side:

01)  Letter of authorization dt.21.02.2023 – EX.R.6.

02) Copy of credit card application – EX.R.7.

03) Copy of police complaint – EX.R.8.

04) Copy of email dt.16.05.2020 – EX.R.9.

05) Copy of FIR dt.16.05.2020 – EX.R.10.

06) Copy of complaint to Banking Ombudsman dt.02.07.2020 – EX.R.11.

07) Copy of credit card statement – EX.R.12.

08) Copy of massages – EX.R.13.

09) Copy of the reply dt.03.07.2020 – EX.R.14.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•