Punjab

Ludhiana

CC/19/496

Amir Singh - Complainant(s)

Versus

RBL Bank - Opp.Party(s)

Ashwani K. Nayyar Adv.

21 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:496 dated 24.10.2019.                                                         Date of decision: 21.08.2023.

 

Amir Singh son of Sh. Swaran Singh, resident of House No.101, Street No.4, Kailash Nagar, Janta Colony, Ludhiana.                                                                                                                                        ..…Complainant

                                                Versus

1. The Manager, RBL Bank, SCO 18-19C, Ground Floor, Canal Colony, Green Park Avenue, Pakhowal Road, Ludhiana.
2. The Chief Manager, RBL Bank, Corporate Office: 841, Tower-2/B, 6^th Floor, One Indiabulls Centre, Senapati Bapat Marg, Lower Parel, Mumbai.        
3. The Manager, Bajaj Finserv, 1^st and 2^nd Floor, SCF        35-G, BRS Nagar, Opposite Police Station, Orient Cinema Road, Ludhiana.    
4. The Director, One Assist Consumer Solutions Pvt. Ltd., Acme Plaza, Andheri-Kurla Road, Opposite Big Cinemas, Vijay Nagar Colony, J.B. Nagar, Andheri (E), Mumbai.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Ashwani K. Nayyar, Advocate.

For OP1 and OP2          :         Sh. Harpreet Singh, Advocate.

For OP3                         :         Sh. Sumit Jain, Advocate.

For OP4                         :         Exparte.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant availed credit card services from opposite party No.1 to 3, who issued two credit cards bearing No.5369077352563771 and 5256118804628543 by alluring the complainant to get insured the credit cards from opposite party No.4, who insured the credit cards for a sum of Rs.1 Lakh vide policy No.1004943430 and the complainant had also paid the requisite charges for the same. The complainant further stated that unfortunately, he became the victim of online fraud on 18.07.2019 for a sum of Rs.49,898/- by the culprits for different transactions of Rs.4901.95, Rs.19,999/-, Rs.19,999/- and Rs.4,999/- from his credit card No. 5256118804628543, upon which he moved an application to Commissioner of Police, Ludhiana bearing CR No.1608556 on 19.07.2019 and also informed opposite party No.1 and 2 on their customer care No.02262327777 and informed opposite party No.4 on their customer care No.18001233330. The complainant immediately lodged his claim for insurance with opposite parties on 19.07.2019 and the opposite parties assured that his claim will be settled very soon but they did not informed the complainant about any development of his claim and ultimately on 30.08.2019 the opposite parties told that the claim has been rejected by them. The complainant further stated that opposite party No.3 raised a demand of Rs.38,111.89 from him and asked to deposit the same till 06.09.2019. The complainant requested the opposite parties to adjust the said amount in his insurance claim but they did not cooperate with the complainant. Thereafter, the complainant sent a legal notice dated 02.09.2019 posted on 03.09.2019 to the opposite parties but no response was received from the opposite parties. The complainant suffered great mental pain, agony and harassment on account of act and conduct of the opposite parties for which the complainant is entitled for compensation. In the end, the complainant prayed for issuing direction to the opposite parties to approve his insurance claim and to pay the insurance amount after deducting Rs.45,942.84 from his insurance policy and also to pay compensation of Rs.2,00,000/-.

2.                Upon notice, none appeared on behalf of opposite party No.4 despite service and as such, opposite party No.4 was proceeded against exparte vide order dated 29.01.2020.

3.                Upon notice, opposite party No.1 and 2 appeared and filed joint written statement and by taking preliminary objections/submissions, assailed the complaint on the ground of maintainability of the complaint, opposite party No.1 and 2 are not proper party nor necessary party, lack of cause of action etc. Opposite party No.1 and 2 stated that the complainant claimed relief towards approval of his insurance claim but they are merely facilitator and do not have any capacity to grant the relief claimed under this complaint. The complainant himself admitted that he became the victim of online fraud at the hands of cyber swindlers and not by any act of opposite party No.1 and 2 which is sheer violation of use of credit card facility availed by complainant which clearly states not to share any OTP etc. as banker never asks for the same to be shared with third party. The complainant himself is the guilty of sharing his card details with others. Opposite party No.1 and 2 further stated that as per Clause 15.4 and Clause 15.5 of the Card Membership Agreement, which the complainant agreed to, stated the responsibility  of maintaining confidentiality of OTP was on complainant and liability of any transaction made with such OTP was on complainant. The clause 15.4 and 15.5 are reproduced as under:-

“15.4. The Card member will be responsible for keeping the OTP confidential. The Card member shall not reveal the OTP to any other party and shall take all necessary steps to prevent discourse or discovery of the OTP and/or password/s to/by any other party. The Card member is responsible for ensuring the security of the OTP as well as mobile phone or device on which the OTP are received, and for keeping these protected from unauthorized use.

15.5.  The Card member shall be liable for all the transactions made using the OTP.”

Opposite party No.1 and 2 further stated that they are committed to their customers and owning to same, they had replied to the complainant dated 18.07.2019 in which it was clearly mentioned after through investigation that transactions were done by using an OTP. These transactions can take place only if customer shares

          * Credit Card Number

          * Expiry Date

          * CVV

          * One Time Password (OTP)

Sent on registered mobile and E-mail of cardholder, which the complainant himself shared out of his free will and consent as it was not asked by the opposite parties and even the information was available with the cardholder only and as such, the opposite parties were unable to take and forward request of the complainant. The complainant has kept no vigil despite the several messages that any Bank never ask for OTP, PIN password, CVC no. etc. as the same are confidential information and the customers are informed to keep all the information intact and not to share with anybody.

                   On merits, opposite party No.1 and 2 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 and 2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                Opposite party No.3 filed separate written statement and assailed the complaint on the ground of maintainability; suppression of material facts; the complainant has not approached the Commission with clean hands; the complainant has no cause of action to file the present complaint etc. Opposite party No.3 stated that it provided five loans to the complainant, which have been closed and nothing is due against the complainant as he had paid the EMI’s without any default. The credit card issued by RBL Bank is under the scheme of co-branding with opposite party as a facility to its customers and as such, the complainant was issued credit card by opposite party No.1 and RBL Bank. Opposite party No.3 has no role to play in the transactions done by the credit card holder or the services of the credit card. Opposite party No.3 further stated that the complainant has alleged 4 different transactions of Rs.49,898/- done online through his credit card. All the online card transactions are secured through One Time Password (OTP) and without sharing the OTP no one can do any transaction. Opposite party No.3 always sends precautionary message to all its customers mentioning about not to share the OTP. In this case the complainant himself shared the OTP to third person and as such, it is the complainant who is responsible for his negligent and careless attitude and now he cannot blame the opposite party. Moreover, OTP/s were only sent to the registered number of the complainant which was/were known only to the complainant and the complainant himself has authenticated said transaction on real time basis. Therefore, the complainant is solely liable for effecting the online transaction. Opposite party No.3 further averred that it has no link or concern with the transactions done by the complainant and it has no role in the services of credit card issued by opposite party No.1 and 2. The credit card issued to the complainant was only a co-brand with RBL Bank in which RBL Bank issues credit card to the customers of opposite party No.3. RBL Bank and opposite party No.1 and 2 are only responsible for the transactions and services provided to the credit card holder. 

                   On merits, opposite party No.3 reiterated the crux of averments made in the preliminary objections. Opposite party No.3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1  and Ex. C2 are the copies of credit card No. 5369077352563771 and 5256118804628543 respectively,  Ex. C3 is the copy of account summary of the complainant, Ex. C4 to Ex. C6 are the copies of text messages, Ex. C7 is the copy of public complaint made by the complainant with Commissionerate, Ludhiana, Ex. C8 is the copy of  complaint made by the complainant with Police Commissioner, Ludhiana, Ex. C9 is the copy of receipt of courier, Ex. C10 is the copy of letter sent by RBL bank to the complainant, Ex. C11, Ex. C17 are the copies of text message, Ex. R12 is the copy of legal notice dated 02.09.2019, Ex. C13 to Ex. C16 are the postal receipts and closed the evidence.

6.                On the other hand, the counsel for opposite parties No.1 and 2 submitted documents Ex. R1  copy of letter written by RBL Bank to the complainant, Ex. R2, Ex. R3 is the copy of transaction details, Ex. R4 is the copy of power of attorney and closed the evidence.

                   Ms. Shivani Garg, Advocate counsel for opposite party No.3 tendered her affidavit Ex. RA3 and closed the evidence of opposite party No.3.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties.         

8.                The complainant, holder of two credit cards Ex. C1 and Ex. C2 respectively issued by opposite party No.1 and 2 and co-branded by opposite party No.3. The complainant obtained an insurance cover of Rs.1,00,000/- through opposite party No.4. At the time of issuance of credit cards, “Do’s and Don’ts” with regard to usage of credit cards were duly conveyed to the complainant and these were also stipulated in the Card Membership Agreement. It was the responsibility of the complainant to maintain confidentiality of OTP (One Time Password) and he was not to share the credit card number, expiry date, CVV and OTP at the time of executing financial transactions. In case of  any default, the liability lies upon the complainant. Clause 15.4 and 15.5 of the Card Membership Agreement reads as under:-

“15.4. The Card member will be responsible for keeping the OTP confidential. The Card member shall not reveal the OTP to any other party and shall take all necessary steps to prevent discourse or discovery of the OTP and/or password/s to/by any other party. The Card member is responsible for ensuring the security of the OTP as well as mobile phone or device on which the OTP are received, and for keeping these protected from unauthorized use.

15.5.  The Card member shall be liable for all the transactions made using the OTP.”

9.                According to the complainant himself, he became victim of online fraud on 18.07.2019 and lost a total sum of Rs.49,898/-  in four different transactions emanated from his credit card number ending with 8543 (5256118804628543) Ex. C2. The complainant has attached 9 OTP messages with regard to the aforesaid transactions on three pages Ex. C4 to Ex. C6 and perusal of these messages shows that the complainant has shared the OTP at the time of those transactions. The complainant has also submitted a complaint before Commissioner of Police, Ludhiana with regard to alleged fraudulent transactions. The complainant lodged insurance claim with the opposite parties. Thereafter, the complainant received a notice/bill of Rs.45,942.84 on account of online transactions done by him. By way of filing the present complaint, the complainant is praying for directions to be issued to the opposite parties for payment of amount of insurance to him after deducting Rs.45,942.84 from the so settled insurance claim.

10.              Perusal of the complaint shows that no insurance company has been made party. Opposite party No.4 is just a facilitator who might have acted as intermediatory between the complainant and the insurance company. Scrutiny of account summary Ex. C3 shows that on 19.06.2018, the complainant paid a premium of Rs.600/- (known as R Shield Insurance Premium). The complainant was aware of the fact that opposite party No.4 has not issued the policy/product but for the reason best known to the complainant, insurance company against whom he is primarily seeking relief, was not made a party to the present complaint. Impleading the said insurance company as party was essential for the effective and fair adjudication of the matter in controversy and in the absence thereof, the subject matter of the complainant cannot be adjudicated. Even otherwise, the initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.

11.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

12.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.    

 

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:21.08.2023.

Gobind Ram.

 

 

 

Amir Singh Vs The Manager, RBL Bank                       CC/19/496

Present:       Sh. Ashwani K. Nayyar, Advocate for complainants.

                   Sh. Harpreet Singh, Advocate for OP1 and OP2.

                   Sh. Sumit Jain, Advocate for OP3.

                   OP4 exparte.

         

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:21.08.2023.

Gobind Ram.