IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
C.C.No. 137/2019
PRESENT
SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT
SMT. S.SANDHYA RANI. BSC, LL.B, MEMBER
SRI. STANLY HAROLD, B.A.LL.B, MEMBER
ORDER DATED: 31-03-2023.
BETWEEN
R.Girish,
S/o Radhakrishna Pillai,
43 years, Ayirathu Vila,
Chaithinamkulam,
Chandanathope (P.O.), Kollam. : Complainant
(By Adv.Babukuttan Pillai)
AND
- M/s.Assisi Atonment Hospital,
Perumpuzha (P.O.)
- Manager,
South Indian Bank, Perumpuzha (P.O)
(By Adv.V.Hariprasad)
- Manager,
HDFC Bank, Kollam Branch. : Opposite Parties
ORDER
Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant is an employee of Kerala State Electricity Board(KSEB). His family usually visits M/s Assisi Attornment Hospital, Perumpuzha as and when required. Complainant on 27.05.2019 along with his wife and mother visited the Assisi Attornment Hospital, with regard to broadly uneasiness to wife and mother. After examination the Orthopedic Surgeon Dr.Chandramouleeswaran referred to take an X-ray of complainant’s wife with regard to Lumbar spine which amounts to Rs.400/- vide bill No.1920/1100 dated 27.05.2019. Thereafter complainant’s mother was advised to institute medicine by the same doctor, videpharmacy bill No.1920/011138 dated 27.05.2019. The complainant is an account holder in HDFC Bank, Kollam bearing A/c No.02032100000211. The complainant often prefers credit card for making payment for transactions. The hospital bill altogether amounts to a total of Rs.1163/-. But unfortunately the hospital authorities had installed a swiping machine of the South Indian Bank, Perumpuzha and deducted Rs.1174/-through this procedure. Along with the said amount, the hospital authority deducted an amount of Rs.11/- as service charge. After making the payment and perusing the debit slip issued from the swiping machine of South Indian Bank, the complainant made an enquiry about the deduction of excess amount. They had given information that it was due to the direction of the South Indian Bank. Thereafter aggrieved by the act of the bank, the complainant sent a registered notice to the Manager, South Indian Bank, Perumpuzha on 28.05.2019. But the bank has not responded to the said notice. The illegal recovery of service charge of Rs.11/- in excess is against the existing law and prevailing rules. The act of the opposite parties in levying illegal service charge of Rs.11/- comes under the purview of unfair trade practice followed by the bank. In the circumstances complainant is entitled to get the compensation and costs from the opposite parties. The act of the opposite party amounts to clear case of unfair trade practice. Hence the complaint.
1st and 2nd opposite parties filed detailed version resisting the averments in the complaint. The contention of the 1st opposite party is that the complainant has filed the complaint without verifying the facts and exercising reasonable due diligence. The averments in the complaint is only known to the complainant and he has to prove the same with strict proof. It is true that the POS terminal installed by the South Indian Bank, Perumpuzha Branch is in service at the hospital and is being used by the patients and others for the payment of hospital bills. As per the terms and conditions, the said bank is levying 0.4% MDR for each transaction from the customer. The 1st opposite party had levied an amount of Rs.11/- from the complainant for the payment of hospital bills made through the POS facility only as per the direction of the said bank for which the 1st opposite party is not liable. Levying service charge for the facility provided by
the 2nd opposite party is beyond the authority of the 1st opposite party for which the 1st opposite party has no liability. The 1st opposite party further contends that the above number case has been instituted without cause of action and with the malafide intention to harass the 1st opposite party and hence the complaint is only to be dismissed.
The 2nd opposite party resisted the averments in the complaint and contended that the complaint itself is not maintainable either under law or on facts and further contends that complainant is not a consumer as defined in the Act. It is also contended that averments contained in paragraphs 1 to 5 of the complaint are strictly within the exclusive knowledge of the complainant and thus the burden is heavily upon him to prove and establish the same. The 1st opposite party is a Merchant Establishment who has availed a swiping machine facility of 2nd opposite party bank for their purpose of collection of hospital bills and other charges due from their patient, by swiping the customer’s debit/credit card from within the premises of the hospital. The POS terminal is provided at mutually agreed transaction commission payable by Merchant establishment to the POS terminal provider bank and it is not levied from the card holder. The bank has never levied any charge or collected any amount from the card holders in any form for using the POS machine. The bank has never instructed any of our POS Merchant Establishment to charge or collect any extra amount from the cardholders in any form for using the POS machine. In POS transactions, POS terminal provider bank will not be aware of the underlying transaction(bill/invoices) between the Merchant Establishment and the card holder. The card holder swipes the card after confirming the POS transaction amount shown in the terminal. Regarding the entire POS transactions of a day, the net settlement happens between the merchant establishment and POS terminal provider bank. The 2nd opposite party has no means, whatsoever, to know the amounts due/bills/underlying transactions involved between the 1st opposite party and the complainant. In this regard there is no relationship between the bank and the customers who are using the POS machine. The 2nd opposite party admits the receipt of the notice and further contended that reply notice has been sentstating that bank is not charging any amount from the cardholders and the amount being stated to have been collected as claimed by the applicant is not by the 2nd opposite party bank. It is also contended by the 2nd opposite party that if the complainant is actually aggrieved in any respect, he may contact the hospital authorities itself so as to redress his grievances if any. Without doing so, now the 2nd opposite party has been unnecessarily arrayed as a party without any bonafides which has much harassment and also financial burden to the bank which the applicant is liable to make good. The 2nd opposite party further contended that there is no cause of action against the 2nd opposite party and also no unfair trade practice or deficiency in service on the part of the 2nd opposite party whatsoever in the instant case as alleged by the complainant. The 2nd opposite party is not liable to pay any amounts or the costs of the complainant as claimed in the complaint. The 2nd opposite party has been unnecessarily dragged into this litigation. The 2nd opposite party has suffered much expenses and the same is liable to be recovered from the complainant and prays to dismiss the complaint.
In the light of the above pleadings the points that arise for consideration are:-
- Whether the act of opposite parties in levying excess amount of Rs.11/- is justifiable or not?
- Whether there is any deficiency in service and unfair trade practice on the part of opposite parties in levying excess amount of Rs.11/-?
- Whether the complainant is entitled to get any compensation?
- Reliefs and Costs?
Evidence on the side of the complainant consists of oral evidence of PW1 and Exts.A1 to A6 documents. Evidence on the side of the opposite party consists of the oral evidence of DW1 and DW2 and Exts.D1 to D3 documents. 2nd and 3rd opposite parties have not adduced any oral or documentary evidence. Complainant and 1st opposite party filed notes of argument. Heard the counsel for the complainant and 1st opposite party.
Point No.1 &2
For avoiding repetition of discussion of materials these 3 points are considered together. There is no dispute with regard to the fact that the complainant’s wife and mother sought treatment in M/s Assisi Attornment Hospital on 27.05.2019 for the ailment of complainant’s wife and mother. Thereafter the doctor in Orthopedic Department Mr.Chandramouleeswaran suggested examination of X-ray of complainant’s wife’s Lumbar spine which amounts to Rs.400/-. Complainant’s mother was also advised by the same doctor to institute medicine. According to the complainant he is operating an A/c in HDFC bearing A/c No. 02032100000211 as a part of the digital transaction, the complainant used to make payment using the credit card issued by HDFC, Kollam. However the total amount of the bill amounts to Rs.1163/- but using the swiping machine installed by the South Indian Bank the Perumbuzha hospital deducted Rs.1,174/-. Thus the hospital authority deducted an excess amount of Rs.11/- as service charge.
The complainant’s case is that, in ordinary case the common people does not fight for simple losses. According to the complainant an amount of Rs.11/- has been illegally charged by the M/s Assisi Attornment Hospital, Perumpuzha by using POS machine installed by the 2nd opposite party bank. Thereafter on enquiry the 1st opposite party informed that the service charge is levied as per the direction of 2nd opposite party . Thereafter complainant initiated a registered letter to the 2nd opposite party requesting to re credit the amount illegally collected. The bank was not amenable for the same and they insisted to approach the disputed organization (hospital). It is evident from the available materials including the depositions of the complainant which establish the negligence and unfair trade practice of the bank with a strict proof of evidence. The manager of the 2nd opposite party bank informed the complainant to approach hospital authority and threatened the complainant to face legal action for issuing such letters. So according to 1st opposite party as per the direction of Government of India and RBI to make the bank transaction amount transparent and quick. The 2nd opposite party advised the 1st opposite party to install POS machine in the premises of the hospital. As per the terms and conditions agreed and signed by both, the 2nd opposite party installed the POS machine at the hospital and same was in the service for the payment of the hospital bills which is evident from Ext.D1 agreement and D2 letter. However as per the terms and conditions of D1 and D2 the 2nd opposite party levying 0.4% MDR for each transaction from the customer and same is very specifically stated in the standard and the sanctioned head of Ext.D2 letter.
As per clause 5.1.6 of D1 agreement, the merchant establishment shall not dispute, compromise or otherwise deal with any claim made without the prior written consent of the bank and the sole discretion is to the bank to defend the claim made and clauses 5.3.1 and 5.3.2 also states that the merchant institution shall not make any cash refund of the card holder and make refund to the card holder only through the bank as per the process communicated by it. However with regard to this contention the 1st opposite party cannot evade from the liability of charging excess service charge to the complainant. It is very pertinent to note that the complainant had availed the service of the 1st opposite party where the 1st opposite party has levied the excess amount as service charge. It is clearly mentioned in the agreement between 1st and 2nd opposite parties in Section 5.5.3 ‘not to levy any service charges or fee on the card holders for the use of the card’.
According to the complainant, as per Section 1.8 of the agreement “customer” is defined, Section 3.4.1 of the agreement provision clearly states that all rights interest and the title of the POS machine is the bank. It is also pertinent to note that the software programme were also installed by the bank. As per Section 5.5.3 of the Ext.D1 agreement reads that not to levy any service charges or if on the card holders for the use of the card. Ext.D1 agreement also says bank reserves right to charge back any transaction found inconformity with the provisions of the agreement illegal transaction and finally Section 8.8 clearly states the duty of the bank on any information about the illegal transaction. However from these provisions of the D1 agreement it can be safely concluded that the mode of operation and remedy of the POS machine installed by the 2nd opposite party. It is very pertinent to note that the complainant informed about the illegal transaction but the bank neglected the complainant. It is the foremost duty of the 2nd opposite party bank to conduct an enquiry regarding the grievance of the complainant. If it is done through an enquiry, the 2nd opposite party bank can easily credit back the amount to the complainant as envisaged in the provisions of the agreement rather the bank tried to shift the liability on the shoulder of the 1st opposite party. It is evident from the available records and the proof affidavit filed by the 2nd opposite party, they made every attempt to establish they have no relationship with the card holder and are not the customer of the bank. However we cannot accept the contention of 2nd opposite party that the complainant is not a customer of the bank, it is true that there is no direct relationship with the bank when the complainant availed the service of POS machine he become a beneficiary to the bank. The 1st and 2nd opposite party bank is under an obligation to act upon the provisions of the agreement which they failed to do so. It can be evident that due to the lack of an enquiry the illegally collected money cannot be refunded. It is very pertinent to note that the D1 agreement which laid down the principles to be followed up by 1st and 2nd opposite parties it can be evident that provision in not levying any service charge from the card holders. However the South Indian Bank Limited which is a corporate governed by Banking Regulation Act 1949 is under an obligation to resolve any issue which brought out into their notice.
It is an established fact that customers now a days in the country are exploited 1 to 2.5% extra as transaction charges despite an RBI directive stating the bank can penalize such merchants by black listing them. But the banks would not take any steps to that effect. Here in this case the complainant as a consumer who prefer to pay the merchant institution via card were silently being exploited of their hard-earned money every once in a while. Here however in this case the complainant had experienced the similar matter in the 1st opposite party hospital. It is pertinent to note that as per the RBI debit cards swipe of POS terminals have jumped more than 27% in March 2019 compare to corresponding period last year. Here the bank has never provided any solution to the complainant’s grievance with regard to the collection of excess charge by way of service charge. It is sometimes Rs.11/- is so simple. But compared to the number of persons visiting the hospital a day will come to Rs.300 to 400/-. So the total amount collected manner by way of service charge can be assumed in an ordinary prudent manner. So we hold that there is unfair trade practice on the part of 1st and 2nd opposite parties.
On evaluating the entire materials, we hold that this is a clear case of unfair trade practice and it is to be compensated by 1st and 2nd opposite parties. Anyhow complainant has filed this case as a misdeed against society and from the available materials we are of the view that this should be an eye-opener to the society. Even though the amount of loss is meagre. Hence there is deficiency in service and unfair trade practice on the part of 1st and 2nd opposite parties. It is also clear from the materials available on record the 1st and 2nd opposite parties had not set right the problem of the excess service charge by conducting an enquiry. The complainant had sustained mental agony apart from financial loss. In the circumstances the 1st and 2nd opposite parties are directed to pay Rs.11/- levied in excess from the complainant with 9% interest and also to pay reasonable compensation and costs of the proceedings. The point answered accordingly.
Point 3
In the result complaint stands allowed in the following terms:-
- The opposite parties 1 and 2 are directed to pay Rs.11/- levied as excess service charge from the complainant with 9 % interest from 27.05.2019 till realization and to pay Rs.15,000/- as compensation for the mental agony and financial loss caused to the complainant due to the unfair trade practice on the part of the 1st and 2nd opposite parties.
- The opposite parties are also directed to pay Rs.5,000/- as costs of the proceedings.
- The opposite parties are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to realize the amount referred above along with interest @ 9% per annum from the date of the complaint till realization along with costs from opposite parties No.1 to 3 and from their assets jointly and severally.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 31st day of March 2023.
Sd/-
STANLY HAROLD
MEMBER
Sd/-
S.K.SREELA
PRESIDENT
Sd/-
S.SANDHYA RANI
MEMBER
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Satheesan V.
Documents marked for the complainant:-
Ext.A1 : Original bill No.1920/001100 dated 27/05/2019
Ext.A2 : Original bill No.1920/011138 dated 27/05/2019
Ext.A3 : Postal receipt
Ext.A4 : Debit slip
Ext.A5 : Complainant sent a registered notice to the Manager, South Indian Bank,
Perumpuzha on 28.05.2019.
Ext.A6 : postal receipt
Witnesses Examined for the opposite party:-
DW1 : Shiny
DW2 : Sajeeshkumar S.V.
Documents marked for opposite party:-
Ext.D1 : Agreement
Ext.D2 : POS Terminal Sanction against the request
Ext.D3 : Authorization Letter