Delhi

New Delhi

CC/639/2014

Rajiv Kumar - Complainant(s)

Versus

M/S. Thomas Cook (India) Ltd. - Opp.Party(s)

27 Apr 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.639/2014

IN THE MATTER OF:

 

RAJIV KUMAR

R/O HOUSE NO.13, PLOT A-52,

iCISA COMPLEX, SECTOR 62

NOIDA, UTTAR PRADESH                                             ....COMPLAINANT

 

                                      VERSUS

 

1. THOMAS COOK ( INDIA) LIMITED

C-35, CONNAUGHT PLACE

NEW DELHI-110001

 

2. MASTER CARD

11th FLOOR, TOWER-D

GLOBAL BUSINESS PARK, MEHRAULI-

GURGAON ROAD,

GURGAON, HARYANA-122002....OPPOSITE PARTY

 

Quorum:

 

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

 

                                                                                                                                      Date of Institution: 26.08.2014                                                                                                                                                                          Date of Order      : 27.04.2023  

 

 

ORDER

 

Shekhar Chandra, Member:

The present complaint has been filed under Section 12 of Consumer Protection Act 1986, (in short CP Act) against the Opposite Party (in short OP) alleging deficiency of services.

 

1.       The complainant availed the service of the opposite party no.1 and took Thomas Cook Borderless Pre-paid card bearing no. 5231 6600 0059 7980 for using, during his stay in Rome, Italy.

2.       The opposite party no. 1 is a company registered under the Companies Act, 1956 and having branch office at New Delhi. The opposite party no. 1 provides various services in respect of travelling to different parts of the country and outside the country including lodging, sightseeing and also provides Borderless pre-paid card (of OP no.2) to draw required currency in the country of such visit for which service charges is deducted on each transaction. The opposite party no.2 is a foreign company also registered in India with Registrar of Companies and having its registered office at Gurgaon, Haryana. The opposite party no.2 issues Borderless pre-paid card to consumers through many agents including the opposite party no.1.

3.       The office of the Controller and Auditor General of India (CAG) has been appointing as official auditors for auditing the account of World Food Programme having head office at Rome, Italy. The CAG had accordingly constituted a team of Auditors to carry out the audit of World Food Programme which includes the complainant. The office of the comptroller and Auditor General of India engaged opposite party no.1 as service provider to facilitate visit of its officers to foreign countries.

 

4.       It is stated by the complainant that the complainant applied to the opposite party no.1, for issue of Borderless Pre-paid Card for which the complainant had deposited Rs.3,41,282/- equivalent to 4000 Euros (An European currency) with the opposite party no.1. The OP no.1  issued Borderless Pre-paid Card bearing number 5231 6600 0059 7980 on 14.02.2014 after loading the amount as paid by the complainant and delivered in the office of the complainant at Delhi.

5.       The complainant went to Rome on 15.02.2014 and stayed in Hotel Alexis, Via Geeta, 27, 00185 Rome, Italy from 16.02.2014 to 23.03.2014. On 18.02.2014 at 10am (Local time) approximately, someone pick-pocked the wallet of complainant while he was at terminal metro station in Rome. The complainant immediately came back to his Hotel within 20 -30 minutes and tried to find out the status of pre-paid card on line and found unauthorized pending transactions. The complainant immediately called OP no.2  on its Card Services helpline number 800 789 525 at Italy, given in the Broachers of Thomas Cook Borderless Pre-paid  card (Multi currency master card) to block the card immediately to stop any misuse of the card.

6.       Since the complainant was having some problem in understanding the European accent, the complainant took help of the receptionist of the hotel, where the complaint stayed in Italy, to assist him to talk to the card service executive (CSE) of Help line number of Master card.

7.       The complainant by calling the help line number of the card service of OP no.2, reported the loss of card immediately after complainant noticed the loss of card. The complainant, during his conversation with the Card Service Executive asked to block the card first to stop the misuse of the card. The Card Service Executive took 6 minutes 10 seconds from the first call to get connected to confirm the identity of the complainant and informed a withdrawal of 342  USD only from ATM. Card Service Executive informed at 7 minutes 39th seconds that the card has been blocked and repeatedly confirmed the fact during the conversation.

8.       Further, at 8 minutes 05 seconds from the ( first) call get connected, Card Service Executive intimated about the three pending transactions of 342 USD (amounting to 1026 USD). On further query of " How much amount has already been withdrawn from complainant’s account" at 9 minutes 09 seconds, Card Service Executive informed that the withdrawn amount was "1026 USD". The withdrawal (fraudulent) of the amount  of 1026 USD was repeatedly confirmed by the Card Service Executive. The Card Service Executive of OP NO.2 also informed the complainant that these three pending transactions may take upto one week for final transfer and the amount shall be reverted to the account of the complainant. It was also confirmed by the Card Service Executive that the said card has been blocked and before such blocking only 1026 USD has been transacted but the same is pending for final confirmation.

9.       After about 30 minutes of the first call the complainant again sought the assistance of the receptionist of the Hotel and called to the Italy help line number of card services of OP no.2 to find out the current status of the pre-paid card. Another official of the card services of OP no.2 informed the complainant that besides the aforesaid three transactions, various transactions have been made. It was very surprising for the complainant that most of the transactions were done, even after pre-paid card was blocked by Card Services official. The complainant was also surprised to understand that how did thief procure the PIN of the card.

10.     The complainant submits that para 4.7 of the terms and condition of the agreement says as "You (the cardholder) must call Card Services immediately without undue delay, if you lose the card, believe it could be misused. We (Thomas cook) will supend the card to prevent further use". Further as per para 4.9 " We (Thomas cook) may suspend the card, with or without notice, if we (Thomas cook) the card has been or is likely to be misused.... if we (Thomas cook) suspect any illegal use of the card".

11.     In the instant case, it is alleged by the complainant that the Card Service Executive took 6 minutes 10 second from the first call get connected and reported about only one transaction of 342 USD was done whereas the complainant had in his first sentence itself reported about the loss of the card. If the service executive of the OP no.2 would have promptly responded to the distress call of the complainant even the first fraudulent transaction could have been prevented. But in the instant case, due to the inefficient service and negligence on the part of OP no.2 and in violation of para 4.7 and 4.9 of the terms and conditions of the opposite parties, the complainant suffered a substantial loss of USD 4,815.69.

 

12.     The complainant also lodged a police complaint of the theft in Rome on the same day. The complainant made a formal complaint to the OP no.1 vide his e-mail dated 25.02.2014 requesting the OP no.1 to redress his grievances.

 

13.     The complainant through his senior from the office of Comptroller and Auditor General of India, made a written claim vide e-mail dated 25.02.2014 to OP no.1 for refund of the amount lost in such transaction. In the letter it was requested to investigate the matter particularly how thief could procure the PIN of the pre-paid card and also requested the OP no.1 to investigate the matter for satisfactory resolution. The OP no.1 replied vide letter dated 26.02.2014 contradictory the findings. According to the complainant, the contradictions are as mentioned below:

Firstly, the OP no.1 said that all transactions were made between 10:24AM and 10:48AM on 18.02.2014 whereas the transactions details  downloaded from the complainant’s (users) online account shows that the transaction timing were from 9:30:57 to 16:46:33 on 18.02.2014.

Secondly, the OP no.1  gave time of reporting the loss of car at 9:00 PM on 18.02.2014, which is totally wrong. It was also mentioned by the OP no.1 that the card was suspended/ blocked at 9:00PM on 18.02.2014. In another letter of OP no.1 dated 08th April 2014, the timing of suspension of card was mentioned as 10:53 AM (18.02.2014). Further in another communication of OP no.1 dated 18 April 2014, the timing of report of loss of card was mentioned as 11:55AM.

Third, the OP no.1 reported that all the transactions were done at the ATM of BNL D' Italia Bank but in the statement downloaded from the  online account showed that MPS ATMs were also used to draw the money.

Fourthly, the OP mentioned that the transactions were made on card on 18th Feb 2014 from 10:24 AM to 10:48 AM, whereas in the letter of OP dated 8th April 2014 the transactions were done between 10:24 AM to 10:46 AM.

14.     Thus the complainant submits that it is apparent from the facts of the case that the OP no.1 in collusion with the OP no.2, is trying to conceal and suprress the material facts from the complainant and giving all sorts of contradictory findings to mislead the complainant so as to avoid liability.

15.     The complainant further submits that in response to the claim of complainant dated 25.02.2014, the OP no.1 got the matter investigated through Mr. Vicki Bowd, Fraud dispute Analyst/ Fraud & Risk and rejected the claim of the complainant on the basis of wild assumption that PIN must have been kept together with the pre-paid card which resulted into such loss.

16.     The complainant immediately vide his e-mail dated 01.04.2014, contested the report of Vicki Bowd and sought clarification as to why time of reporting of loss of card was missing and  apparent contradictions between the timing of transactions recorded in documents downloaded by complainant through online account and those reported in the documents of opposite parties. It was reported by the complainant that according to the documents of the OP, first four transactions were unsuccessful whereas the remaining successful transactions were made nearly 6 hours after the last unsuccessful transaction. In response, the OP no.1 has replied vide letter dated 08.04.2014 revealing the time of call for reporting of loss of card. In letter dated 08.04.2014, the OP no.1 mentioned (in table) that the card was suspended at 10:53 AM and hence the last transaction ( at 11:42 AM) of 250 Euros could not be completed. This is an absolute prevarification of truth. In fact, the transaction could not be completed because the daily withdrawal limit of USD 5000 was exceeded and not because the card was suspended or blocked as stated by OP no.1.

17.     The complainant through his senior received letter of OP no.1 dated 18.04.2014 along with investigation report conducted by Vicky Bowd and details of the transactions with time stamp.

18.     Being dissatisfied of the shoddy investigation and contradictory statements provided by the OPs, the complainant again wrote letter vide email dated 19.04.2014 to the OP no.1 requesting them to provide voice call data and time, date and duration of the two calls made by the complainant to report theft of the card and request to suspend the card immediately. In response to request, the OP no.1 provided, two voice calls data vide his endorsement letter dated 02.05.2014 in a CD having 2 files i.e. "Call 1" and Call 2", to complainant but did not provide the actual time of the calls. The complainant has also noted down the relevant part of voice recording between him and helpline executive in English on paper which are part of this complaint proceedings.

19.     The complainant submits that the OP no. 2 has since theft of the card been negligent in blocking/ suspending the card immediately. To cover up their negligence and inefficiency, the OP no. 1 and OP no. 2 deliberately suppressed the facts and tried to mislead the complainant by providing false and contradictory information about the timing of transactions and the time of reporting of loss of the card by the complainant. The investigation made by the opposite parties had also been shoddy and completely unreliable. The opposite parties are absolutely liable to pay USD 4,815.69 (Rs.2,99,014) to the complainant which was lost by the complainant on account of extremely slow and negligent response in suspending the card. The acts of the opposite parties have caused immense mental agony and harassment in foreign land to the complainant for which the opposite parties are liable to pay Rs.10 Lacs to the complainant. The OPs are also liable for deficiency of service for which the OPs are liable to pay Rs.5 Lacs to the complainant. The opposite parties are also liable to pay Rs.1,00,000/- as cost of litigation to the complainant. The OP no. 1 and OP no. 2, being principal and agent, are therefore jointly and severally liable to pay sum of  Rs. 18,99,014/- to the complainant.

20.     The complainant submits that the cause of action arose on 14.02.2014 when the OP has issued Borderless Pre-paid Card to the complainant. The cause of action further arose on 18.02.2014 when the card was reported as stolen and request for suspension of card was made. The cause of action further arose on 25.02.2014 when the claim was made for refund of amount. The cause of action also arose on 04.03.2014 when the claim of the complainant was rejected by OP. The cause of actions still subsists and continuing.

21.     Thus, the present complaint has been filed by the complainant with the prayers that the OPs be directed to pay to the complainant  Rs. 2,99,014/- towards the sum lost by the complainant. He has also prayed for a compensation of Rs. 10,00,000/-  for causing mental agony and harassment to the complainant in the foreign land. A sum of Rs. 5,00,000/- for deficiency of service and Rs. 1,00,000/- towards litigation expenses has been claimed by the complainant.

22.     On receipt of notice from the Commission, the opposite party No. 1 has filed the reply and submits that the present complaint is wholly frivolous, vexatious, without any cause of action and/ or any actionable cause and is not maintainable. The complainant has made false and baseless claims and allegations, without any basis and cogent reasons. The allegations made in the present complaint are clearly fabricated, motivated, un-substantiated, misconceived and unsustainable in law and the patently false allegations made and the purported demand contained therein are clearly actuated by ulterior motives and with the intent of illegal profiteering after enjoying tour in accordance with the terms and conditions mentioned in the Itinerary. The present complaint is a gross abuse of the process of law.

23. It is further submitted by the OP No. 1 that the complainant has failed to disclose any fact to support any allegation of deficiency in service on the part of the opposite party; the entire complaint is devoid of any merit and a gross abuse of the law and based on impermissible conjectures, inferences and surmises and is completely devoid any cause of action against the opposite party, either wholly or partly.

24. It is admitted by the OP 1 that the complainant had purchased the pre-paid travel card bearing number 5231 6600 0059 7980 on 14.02.2014 and had deposited an amount of 4000 Euros. The terms and conditions for the usage of the said pre-paid card were also provided to the complainant. It is further submitted that the complainant called a toll free and informed that the wallet of the complainant was pick-pocketed by someone, which contained the said pre-paid travel card and the complainant on this basis requested that the said card be blocked. The complainant was required to give the necessary information for blocking the card; the card was blocked. There were no transactions done on the card from the time he first called the toll free number till the card was blocked. It s submitted that the fraudulent transactions on the card occurred prior to the call received from the complaint.
25. It is stated by the OP 1 that the complainant after loss of card called the toll free assistance number at 10:50am local time on 18.02.2014. Upon calling the Customer Service Executive, the complainant was required to give the necessary information as required for blocking of Card, the card was blocked. It is submitted that the fraudulent transactions of the card occurred prior to the call received from the complainant. It is submitted that no transaction took place during the period when the complainant was on call with toll free assistance number. The said fraudulent transaction were held between 10:24 AM local time and 10:46 AM local time. The OP 1 further states that the Customer Service Executive informed the complainant about three pending transactions of 342 USD, as falsely alleged. It is also denied by the OP 1 that card service executive informed that the amount withdrawn from the Card was USD 1026. The OP 1 reiterates that the complainant called toll-free number and after confirming the necessary information as required for blocking of card, the card was blocked. There were no transaction done on the card from the time he first called the toll number till the time the card blocked. It is submitted that the Customer Service Executive informed the complainant over phone that there are 10 successful transactions done i.e. Rs.250 Euro, 250 Euro, 250 Euro, 500 Euro, 1000 Euro, 250 Euro, 250 Euro, 250 Euro, 250 Euro and 250 Euro i.e. Total 3500 Euro The complainant was further informed by the Customer Service Executive that 3 other transactions of 2000 Euro, 1500 Euro and 1000 Euro were declined since the same were exceeding the account balance. The complainant was further informed that the final remaining balance in the card was 483 Euro and 10 Cents. It is denied by the OP 1 that the Customer Service Executive informed the complainant that three pending transactions may take upto one week for final transfer and the amount shall be reverted to the account of the complainant. The OP 1 denies that Card Service Executive had informed that before blocking, an amount of USD 1026 only had been transacted but the same is pending for final confirmation as alleged or for the reasons alleged or at all.
26. A separate reply has been filed by the Opposite party No. 2. In its reply the OP No. 2 states that it has already filed an Application for deletion of its name from the array of parties as the Opposite party No. 2 is neither proper nor necessary party for effective and complete adjudication of and/ or settlement of issue involved in the present complaint.It is alleged that the complaint in its entirety is based on baseless, tenuous and uncorroborated assertions, averments, allegation and contentions, none of which singly or in combination constitutes cause of action for the purposes of the captioned complaint. It is further stated that there is no privity of contract between the opposite party No. 2 and the complainant, therefore, any grievance with respect to alleged deficiency in service cannot be made against the Opposite party No. 2. The opposite party No. 2 has needlessly been dragged into this quagmire. In the present case, opposite party no.1 as a business strategy had entered into an agreement with the complainant to issue a "card" defined as "Thomas Cook Borderless Prepaid Card" in the "Terms and Conditions" of the Thomas Cook Borderless Prepaid Card. As evident from the aforesaid " Terms and Conditions" the card services included  "any services including call centre services, provided by opposite party 1 or their third party service provider in connection with the card. In view thereof, the opposite party No. 2 cannot be held liable for any alleged acts or omissions on the part of opposite party no.1. The complainant is thus, liable to be dismissed for misjoinder of parties. It is further submitted by the OP 2 that the present complaint is not sustainable qua the opposite party No. 2 as the complainant does not fall within the ambit of the term "consumer" as defined under section 2 (1)(d) of the Consumer Protection Act, 1986.

 

27. It is further submitted that opposite party 1 is not  an agent of the opposite party No. 2. The opposite party No. 2 as a liaison office of MasterCard International Inc. under the Indian laws cannot enter into any kind of agreement with either opposite party no.1 or the complainant. Neither the opposite party No. 2 nor MasterCard issue payment cards, i.e. debit, credit or pre-paid cards, to card holders nor do they contract with the merchants to accept those cards. The credit/ debit cards, as the case may be, are issued by the banks or financial institutions to its customer and not by the opposite party No. 2 or MasterCard. The terms governing the use of a card are established between the bank or financial institution, and its customer, i.e. the card. Neither the Opposite party No. 2 nor MasterCard is a party to the agreement between the card issuer and the card holder. It is submitted that MasterCard is a payment network underlying the cards. The payment cards are issued by the financial institutions or banks and the payment network only follows the instructions of the issuing/ accepting banks. It is further argued that the complaint does not disclose any cause of action in favour of the complainant and against the opposite party No. 2 and therefore, the same is not maintainable and is liable to be dismissed. It is submitted that the complaint does not even disclose any 'defect' or 'deficiency in service' or 'unfair trade practice' as contemplated under section 2(1) (g) and (r) of the Act so as to bring the present complaint within the ambit of the provisions of the Act.
28. We have heard the parties and gone through the records. As per the version of the complainant, while travelling in Metro, someone pick pocketed wallet of the complainant on 18^th February, 2014 at about 9.30 AM local time of Italy. Realising this, the complainant immediately rushed back to his Hotel  and checked his online account of the pre-paid master card on Laptop and found some pending transactions. The complainant immediately rushed to the receiption of the Hotel and called Customer Service Executive of the OP No.2 to block the card. The Customer Service Executive reported  that only 1026 UD $ has been shown as pending transation before the card was blocked. When the complainant again called the Customer Care Executive after about 30 minutes of the first call, he was informed that thief has withdrawn toal of 3,250 Euro out of  4000 Euro in the pre-paid account. The complainant argues that when in the first attempt the card was blocked by the opposite parties, when only 1026 US$ was shown to be pending/withdrawn, how the money has been withdrawn after 30 minutes.  He, therefore, argues, that there is deficiency on the part of the opposite parties as the Customer Service Executive had failed to block the card in the first call. The call records as provided by the OP No. 2 through OP No. 1 include two calls – second call made after 30 minutes of the first call. The Customer Service Executive in the first call, blocked the card after 7 minutes 39 seconds of talking as per the documents placed on record. It is further argued that the fact of blocking the card and only 1026 US $ were pending/withdrawn was confirmed repeatedly by Customer Service Executive during the total conversation time of 22 minutes 15 second but when the complainant again made the second call after about 30 minutes of the first call, it was reported that several transations were carreid out and total of 3,250 Euro  i.e. 4815 US $ was withdrawn by the thief.
29. It is further submitted by the complainant that Card Service Executive took 6 minutes 10 seconds to report about only one transation of 342 USD was done whereas complainant had in his first sentence itself reported about the loss of the card. If the Customer Service Executive of the OP would have promptly responded to distress call even the first fraudulent transation could have been prevented.
30. As regard the investigation on the loss of card and Ivestigation Report of the OPs , the complainant argues that the ivestigation report of the OP is full of contradiction. The OP No. 1 in its letter dated 26.02.2014 reported the time of theft of card at 9 PM on 18.02.2014. In anothr letter dated 08.04.2014, the time of reporting of theft has been mentioned as 10.53 AM and the time of reporting of theft of card has been shown as 11.55 AM. Thus, the OP No. 1 in the investigation carried out by OP No. 2 has shown three different time of theft of card in three different letters which shows the false ivestigation by the OP.
31. It is further argued by the complainant that OPs are liable to be prosecuted for making false statement on oath. The OP No. 1 and OP No. 2  both are denying the Customer Service Executive (call centre) is being run by them.  This statement of the OPs is contrarary to their evidence placed on record of this complaint case.
32. This argument of the complainant has been refuted by the OP Nos.1 and 2 on the ground that different time zones were recorded while making the complaint/distress call, therefore, the complaint is wrong to argue that there is any dificiency on the part of the OPs.
33. After perusing the records, particularly the call messages filed by the complainant, we do not believe the story of the OPs.  The OPs have just tried to wash off their hands from taking any responsibility. We are not satisfied with the answers of the OPs. In fact the OP Nos. 1 and 2  are throwing the blame on each other.
34. Therefore, this Commission is of the view that there is deficiency on the part of OP Nos. 1 and 2 and they are liable to compensate the complainant. The Opposite Parties jointly and severally are held to be liable to compensate the complainant for the loss of Rs. 2,99,014 towards the sum lost by him with interest @ 9% per annum from the date of loss till realisation, within six weeks from the date of receipt of this order. Further the Oppositye parties are directed  to compensate the complainant by paying a sum of Rs. 1,00,000/- for causing mental agony and harassment in the foreign land. Rs. 50,000/- is granted to the complainant towards litigation expenses.  The complaint case is accordingly disposed of.

A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission.

File be consigned to the record room with a copy of the order.

 

 

                                               [Poonam Chaudhry]

                                                        President

 

 

        [Bariq Ahmad]                                                      [Shekhar Chandra]

                  Member                                                                Member