ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

The complainant has filed this complaint u/Sec. 35 of the C.P Act, 2019 for a compensation of Rs. 10 lakhs along with interest at 18% p.a from the date of filing of this complaint and for other reliefs as the forum deems fit under the circumstances of the case.

The brief facts of the complaint are as under:

2.      The complainant is an account holder with OP Bank he was also given a credit card bearing No.5546232920314944 and has been using the same.  He had been to the holiday trip with his office colleague to a foreign country on 06.09.2018 and returned to India on 10.09.2018.  When he was in foreign country, during vacation, he had changed his SIM of his mobile and was using the SIM of the foreign country. When he returned back to India and replaced with his original SIM he found that, there was several messages from OP and was informed by said messages that, on different dates over the said period a sum of Rs. 5,90,999/- has been used by using his credit card to purchase the materials by doing a fraudulent transaction.

To use the credit card, as a safety protocol issued by RBI, PIN Number is absolutely required and is a mandatory one.  Without using the PIN, the card has been fraudulently misused by misusing the banking system and OP has been negligent to allow such unauthorized transaction.  As per the RBI guidelines, if there is no negligence on the part of the card holder, the liability of the card holder is Zero. 

As soon as he came to know that, his credit card is lost and  involved in fraudulent transactions, he informed the Bank regarding his loss of credit card and requested to block the same and OP blocked the card.  He has raised four complaints/disputes regarding the fraudulent transactions made by using his credit card.  When he persistently followed with the Bank, the Bank was totally unresponsive.  Afterwards, he received two phone calls one from the Investigating officer seeking the copy of the FIR filed by the complainant with the Police.  He afterwards, made a complaint to the Police reporting the incident and also filed a complaint online regarding lost article report.  During November-2018, he received a call from the OP informing that the claim of the complainant is under investigation and unable to contact the merchants in Indonesia to know the use of the said card and informed that they require further 15 days to update the same.  He has brought to the notice of the OP the fraudulent credit card transaction within the time prescribed by the RBI and hence, there is zero liability on him. 

In order to maintain his CIBIL score he paid a sum of Rs. 30,000 on 11.01.2019, Rs. 2 lakh on 14.01.2019, Rs. 23,760/- on 15.02.2019, Rs.25,000/- on 15.03.2019 and Rs.75,000/- on 18.03.2019.  In spite of it, OP has not refunded the amount which according to it, has been carried on in a foreign country by the complainant to the extent of Rs.3,53,760/-.  He also made a claim to the Ombudsman who also dismissed his complaint.  Hence, there is deficiency in service on the part of OP in not crediting the said amount used by the fraudster in using the credit card within the time prescribed by the RBI guidelines and hence, the complaint.

3.      Upon the service of notice, OP No. 1 , 2 and 3 appeared before the Commission through their Advocate and filed the version.

4.      This complaint was filed against the Standard Bank represented by its Manager and also against Arun Kumar, the nodal Officer and one Smt. Jayashree, Investigating Officer and after wards names of OP No.2 and 3 was got deleted from the complaint by amending the complaint and hence, this complaint is proceeded against the Standard Chartered Bank only. 

5.      The brief facts of the written version filed by Opposite Parties:

That the complaint is not maintainable in law or on facts and is filed with misconceived, vexatious, misleading, misrepresented, unsustainable, false and frivolous grounds and it is only an abuse of process of law which is liable to be dismissed by imposing exemplary cost U/Sec. 36 (2) of the C.P Act. The complaint is not a consumer. 

It is contended that, in the year 2017, the complainant obtained a credit card facility by making an application and after completing the formalities, he was issued accredit card ending with No.4944 and was using the same without any difficulty. On 10.09.2018, the complainant made a complaint regarding misuse of the credit card No.4944 through which transaction has taken place with the merchant establishment for Rs.5,90,999-25  on the said dates. 

Based on the said complaint, the said card was blocked and he was issued a new credit card ending with No.1570.    After investigation of the complaint, regarding the misuse of the credit card bearing No.4944 for the period till 10.09.2018, it was found that, the said credit card was physically used and the transaction was initiated at that time.  As per their records, at the time of using the credit cards, SMS alert was also sent to the complainant’s registered Mobile number with the Bank and the complainant has accepted the receipt of the SMS.      The said complaint was also referred to the Association (Master Card) and it was confirmed that the disputed transactions were approved without PIN and they also verified the signature.  The merchants registered outside India will comply with their respective countries authenticating policy and in certain countries PIN may not be applicable for physical transactions. 

It is submitted that, at the time of swapping the credit card, at EDC machine, the credit card transaction is validated electronically by the card issuing Bank while the card is swiped at the merchant outlet.   The EDC machine captures the data stored in the credit card and afterwards the same to the card issuing Bank electronically and the card issuing Bank would verify/approve/decline the transaction electronically.  The merchant delivers the goods or service immediately on approval/decline the transaction electronically. The merchant delivers the goods or services immediately on approval of the transaction electronically forced swiping of the card through EDC Machine.  Every card holder is a member and responsible for the security of the card at all times and should take all steps towards ensuring the safety of the card.  As per the terms and conditions, rules and regulation, the card member is liable for all the transaction incurred on the card account until the loss or theft if any is reported to the Banks Card Service Center in India or VISA card global emergency assistance helpline.  Hence, the onus of all the transactions of the card is that of the card holder till the card holder reports the loss of the card to the Bank or till the unauthorized transactions reported to the Bank, in line with the regulatory authorities.  In case of the dispute raised by the complainant with respect to any transaction which the complainant claims to have not authorized the dispute would be referred to the merchant through the card association.  Since the aforesaid transactions were chip based, the request made by the complainant with respect to disputed transaction were declined by the merchant.  OP sent a response on 11.10.2018 and 07.01.2019 to the complainants e-mail ID confirming that the transactions had taken place by using the credit card and the liability of paying the said amount to the complainant.  Accordingly, temporary credits provided earlier was revoked and the debit entries of the disputed transactions were reflected in the statement for the month of November 2018.  They have received the legal notice issued by the complainant which was properly replied.  Even before the banking Ombudsman RBI Bangalore, they made the objection and clarified the matter which the banking Ombudsman accepted and dismissed the prayer of the complainant. 

It has admitted regarding the zero liability of the customer if only unauthorized transaction taken place and the Bank has contributed to the fraud or his negligence or deficiency on the part or the Bank. In this case, the physical card presentation was involved and in view of this, the loss is caused to the complainant due to his negligence and hence, the complainant is not entitled for the zero legality whereas he was liable to pay the entire amount.  And further since the complainant has made the payment towards the disputed transaction and card ending with No.1570 has been canceled on 29.07.21019 and there are no dues from the complainant in respect of the credit card.

All the disputed transaction by the complainant has been done due to his negligence, for which OPPOSITE PARTY cannot be held liable.  After investigation only, they have informed the complainant that the transaction has been done by using the credit and hence there is  no deficiency or negligence or unfair trade practice on their part and by denying each and every Para of the complaint and prayed to dismiss the complaint.

  6.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1)Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1 AND 2 :               In the Negative

                                                For the following.

REASONS

8.     POINT No.1:-

        Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is the holder of credit card ending with last No.4944.

9.     It is the self serving statement of the complaint that he had been to foreign country along with his office colleagues from 06.09.2018 to 10.09.2018 during which time, according to him he changed the SIM to the foreign country by removing the SIM which he was using in India thereby he could not get the messages of transactions.

10.   It is his specific case, that he returned to India on 10.09.2018 and only after changing the SIM, he came to know through several messages wherein, his credit card has been utilized for a sum of Rs.5,90,999-25 for which he raised a complaint with the OP Bank, who promptly blocked the card to avoid further misuse of the said card and issued a new card for the use of the complainant.  According to the OP, they also reversed the disputed amount said to have been transacted by fraudulent means by using the credit card and it is in the version and evidence of the OP that they conducted investigation and found that, the credit card was presented at the time of transaction and hence, those transactions were genuine. 

11.   It is to be noted here that, the complainant did not come with a clear statement that he lost his credit card in the said country. Whereas when the OP insisted for an FIR for taking up investigation then only the complainant made a complaint to the PS and obtained a FIR and submitted to the OP for investigation.  From the complainant’s averments in the complaint, he has lost his credit card.   It is also possible that, the complainant might have used the credit card to purchase the materials and now might has come with the story of losing the credit card. He should have been more careful in dealing with credit card and secure it of the same.  It is the duty of the credit card holder to keep it safe and report the same immediately if it is lost or misused.

12.   As per the evidence, on 09.09.2018 and on 10.09.2018 the said card has been lost and misused.  He has only after returning to India inserted the SIM and came to know the messages sent by the OP and came to know the use of the credit card and even at that time also, he has not stated anything before the OP that, he has lost the credit card.  Absolutely, no negligence or deficiency in service or unfair trade practice can be attributed to the OP whereas the negligence is on the part of complainant in not keeping the credit card under safety measures.  As observed by us above, the credit card might have been issued by him to purchase the articles through the said merchants and to have a gain unrighteously has also might have filed this complaint to get the amount re-credited to his account on the guise that the said credit card has been misused by some others. In view of this, we are of the opinion that, the complainant has failed to prove the deficiency, negligence or unfair trade practice on the part of OP and hence, we answer Point No.1 and 2 in the Negative.  Hence, we pass the following:-  

ORDER

1. Complaint is dismissed with cost.
2. Complainant is directed to pay a sum of Rs. 25,000/- towards the litigation expenses to the OP within 30 days.
3. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 26^th DAY OF AUGUST 2022)

MEMBER                 MEMBER                 PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

Copies of Documents produced on behalf of Opposite Party/s

MEMBER                 MEMBER                PRESIDENT

RHR*