O R D E R
SMT. ANITA SHIVAKUMAR. K, MEMBER
The brief facts of the complaint filed with an application for condonation of delay by the complainant are that the complainant approached Op 1 who is carrying on the business of health care services on 2/3/2008 to enquire about the services available there. Op 2 is an employee of Op 1 has attended the complainant and explained that a service which the complainant wanted to avail would cost at Rs.1.2 lakhs it may continue for about three months. Since the said treatment was beyond the budget of the complainant and he was leaving for Delhi shortly, he did not want to avail the said treatment. But Op 2 informed the complainant that complainant can take part of the treatment here and later he can transfer it to Delhi. In the meanwhile OP 2 took the credit card of the complainant on the pretext of giving him a quotation for the EMI scheme and she will the check the credit limit. Believing the words of Op 2 complainant has given his credit card to her. After 5 minutes Op 2 came back with 4 charge slips for the denomination of Rs. 50,000/-, Rs.25,000/-, Rs. 10,000/-, and Rs.10,000/-( total in all Rs.95,000/-) and asked complainant to sign on the charge slips. The complainant was shocked about the behaviour of the Op 2 as he was not consented to withdraw the amount through his credit card. When the complainant requested to cancel the payment since he is not interested to avail it, Op 2 said that the machine was not working. Immediately the complainant called the Op 3 at their customer care service centre to cancel the transaction and stop payment to the Op 1.Due to negligence of Op3 the amount of Rs.95,000/- has transferred to Op 1 thereafter Op 3 informed the complainant that Op 1 has to generate a void slip to effect the cancellation. But Op 1 did not do it though the complainant requested several times. The complainant alleged that Op 1 and Op 2 are dishonestly misappropriated the amount and cheated the complainant. Op 1 and 2 are prolonging the matter and keep on assuring to remit the said amount. Even the police complaint is registered against the Ops to recover that amount. Though there was no fault or negligent on the part of the complainant in payment Op 3 ha s charged Rs.4,353-66 towards the charges, interest, penalty, late fee, over limit charges and Op 3 has blacklisted the complainant’s credit card. When Op 3 has demanded the charges on credit, the complainant has issued the legal notice dated 9/11/2010 to the Ops claiming to pay Rs.10, 00,000/- as compensation along with interest at the rate of 18% from 2/3/2008. The notice was duly served to Ops, has neither replied to it nor fulfills the claim of the complainant. Due to the dishonest and illegal practice of Op’s negligent and did not stop the transaction despite request, the complainant suffered loss, mental agony, hardship, approached this forum seeking the direction to pay Rs.10,00,000/- with interest at the rate of 18% p.a from 2/3/2008 and direction to remove the name of the complainant from blacklist by OP 3 and cost.
2. Notice sent to OP’s, who have appeared through their advocates. Op 1 contended that there is no necessity of Op2 since she is an employee of Op1 and she is no more working with Op 1 at present. Op 1 is answerable to the allegation made against Op 2 also. Op 1 has denied the allegation of the complainant, contended that the allegations made against Op 1 and 2 are false and frivolous in their version. Op1 has submitted that the complainant himself willingly handed over the credit card to pay the amount of Rs.95,000/-. After his request of withdrawal, Op 1 took time to get approval from the management and remit the amount to the account of the complainant. Therefore, there is no deficiency on the part of the Op 1 and 2, prays for dismissal of the complaint. Op 3 appeared through his counsel and contended that he has entered into tie-bond relationship with merchant establishment to accept and honour the transactions. Once the credit card swiped, the automated process configured in the machine retrieving its supportive database, scrutinizes the request by itself and once the request is approved, a charge bill is generated and transaction stands completed. The same has happened with complainant’s credit card transaction for Rs.95,000/-It has been debited from the complainant’s credit card account. Subsequently, the complainant orally instructed the Op bank to stop the payment had paid on 2/3/2008. Since, Op3 has no authority to stop the payment unless, it receives a void slip or credit voucher from the Op 1 to this effect. The complainant failed to produce the same to the op 3 to revert the amount though it is intimated through letter dated 25/03/2008. The complainant is due approximately for Rs.17,000/- prior to the transaction had with Op 1. It is accrued from 2007 till April 2011 and it is became Rs.51,500/-. The reason for blacklist of his name in CIBIL is due is not repaid by the complainant, continuous default in paying the credit, neither Op 1 nor Op 3 are responsible for it. Hence, there is no deficiency on the part of the Op 3, prays to dismiss the complaint against Op 3.
3. In the course of enquiry into the complaint the complainant and Op’s have filed their affidavit evidences reproducing what they have stated in their respective complaint and versions. The complainant along with the complaint has produced the copy of credit card statement to prove the Op 1 has received the amount, copy of letter written by Op 3 to the complainant dated 25/3/2008, copy of FIR, copy of email correspondence with OP 3, bank statement to show the late charges, over limit charges, service tax, copy of the legal notice sent to Op 1 and 3 claiming Rs.10 lakhs compensation with 18% interest for deficiency in service, copies of postal acknowledgements. Counsel for op1 has produced the copy of pay-in-slip, copy of reply statement before Police sub Inspector, reply letter to the legal notice. Op 3 has also produced some documents and statements of account pertaining to the complainant. Counsels for both parties argued, Op 3 filed written arguments and perused the records.
4. On the above materials, following points for determination arise.
1. Whether the complainant proves that the Ops have caused delay
in not refunding the amount paid?
2. To what relief the complainant is entitled to?
Point No.1: In the negative
Point No.2: See the Final order
REASONS
5. Answer on Point No.1: As we have gone through the contention of both parties, there was transaction between the Op1 and the complainant regarding availing the service on health care treatment. There was dispute regarding whether the credit card was swiped by obtaining the consent of the complainant or without the consent. When the complainant himself visited to Op1 establishment to avail the service. According to submission made by the complainant he was not convinced and agreed to it when the treatment is of Rs.1.2 lakhs. In the meanwhile Op 2 obtained the credit card from the complainant to check the credit balance and swiped it 4 times. The complainant also submitted that he has refused to sign on the charge slip produced on the payment. Op1 contended that he only given his credit card after he expressed his interest for the treatment. Subsequently he changed his mind and requested to cancel it. Once it has swiped, the amount has been credited to Op1 account and debited from the account of complainant.
7. Op1 stated in his version that it is a limited company the cancellation of transaction and refunding the amount takes time to obtain approval from the head office. Due to the procedures to cancel the transaction took little more time, otherwise, Op 1 would have refund his money as early as possible. There is no intentional delay in it.
8. Here we can observe when there is chance of swiping whoever have possession of a credit card, complainant should be conscious or cautious to act accordingly. Handing over of credit card to others is only indicated that he was interested earlier, later he decided to not go with it, requested to refund. The point whether Op 1 obtained his consent or without consent Op 1 withdrew money does not arise. In case of credit card swiping is enough to withdraw the money, it doesn’t matter whether he signed on the charge slip or not. But only point is that almost two months time taken to refund is justifiable? Op1 reverted his money on 29/4/2008 which means he took 57 days to revert his amount to his account. May be he refused to join the treatment in the beginning but when the payment made through credit card, it takes time to revert it. But Op 1 took almost two months which is more to take approval and revert. Since it is limited company, in our view 15 days is sufficient to get over all procedures. When the complainant shows disinterest towards the treatment and also protested about the withdrawal of amount, Op 1could have revert it within 15 days because, he has crossed his credit limit and all other burdens levied by the bank should be borne by the complainant as what has happened in this case. Op 1 is held liable to pay and compensate for that.
9. OP 3 having credited his amount to Op 1, also reverted to complainant as per the instructions of Op 1. Even in letter addressed to complainant dated 27/5/2008 Op 3 have arranged to reverse the amount Rs.1,200/-, Rs.556.95 and Rs.1000/- plus taxes towards the late payment charges, finance charges and over limit fees in the month of Mach,2008 to May,2008 statements. No where in the complaint, complainant denied that Op 3 has not waived and reversed the charges as mentioned in the letter dated 27/5/2008. Therefore, Op 3 proved that he has reversed the above charges to the account of the complainant through the statement of A/c dated 18/06/2008. But as per the statement of accounts starting from 18/12/2007 to 18/2/2008, the complainant owed Rs.39,190.81 on his card account. Subsequently with repeated reminders, out of Rs.39,190.81 the complainant paid Rs.20,000/- and Rs.2,000/- on 20/3/2008 and 12/3/2008 respectively. Rs.22,000/- was not enough to the the total outstanding. He was failed to pay even required minimum due amount stated on the statement of accounts. Therefore, Op 3 constrained to invalidate the usage of card on 18/7/2008 which was informed to the complainant. Op 3 has also replied to the legal notice issued by the complainant on 15/11/2010 and advised complainant to pay the outstanding amount of Rs.45,629/- as on dated 9/11/2010 ,otherwise the bank charges goes on accruing on the outstanding amount until final conclusion of the credit card account. As according to 18/4/2011 the loaded balance owed by the complainant is sum of Rs.51,500/- towards his card. Therefore, the complainant is default in repayment, is caused his name is in the list of defaulter and blacklisted, not due to acts of Op’s.
10. Since Op 3 did all efforts to release him from the over financial burden, though he has no role to act without the instruction of merchant i.e Op 1. Op 1 has reverted his money on 29/4/2008 till then Op 3 has reversed the charges which Op 1 is liable to pay. Therefore, Op 1 refunded his money within two months is not a burden to the complainant since Op 3 reversed the other charges imposed by him on the credit for the said amount. In our view, the complainant is not innocent person who has visited the health care treatment of Rs.1.2 lakhs, he must be alert about to handle the credit card and the card holder must be responsible for the withdrawals either the card used by himself or used by others without his consent. It is implied with the card holder that he consented for the transactions. Hence, the transaction made according to interest of the complainant and delay in refunding by Op 1 is little unjustifiable but the charges of Op 3 for the period is not levied charges on the credit of complainant. The complainant has failed to prove that there is deficiency in service on the part of the Ops, is not entitle to claim the compensation. Because, the outstanding due in the account from 18/12/2007 to 18/2/2008 was Rs. 39,190.81 i.e prior to the transaction between the Op1 and it is accrued from long period became huge due. Therefore, we answer point no.1 in negative and pass the following order.
O R D E R
Complaint is dismissed.
Parties to bear their own cost.
