PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed to roll back the amount of Rs.21,920/- towards the charges of Rs.14,385/- dtd.19/06/2009 for Ezeego and Rs.7,535/- dtd.19/06/2009 for Cox& Kings together with interest @ 21% p.a. and penalties on same.  It is also prayed that the Opposite Party be directed to pay compensation of Rs.50,000/- and cost of Rs.30,000/- for mental torture, loss of work and health problems caused by the actions of the Opposite Party.   

 2)        According to the Complainant, he was having credit card issued by the Opposite Party since 1999 as being the member of the said facility.  The monthly average transaction of the said credit card was in the range of Rs.8,000/- for the period Jan.- May, 2009.  It is alleged that the Complainant received his account statement dtd.22/06/2009 for Rs.30,343/-.  The Complainant checked statement of his account of such high expenses and he was surprised to see that there were illegal charges of Rs.14,385/-, dtd.19/06/2009 for Ezeego 1 and for Rs.7535/-, dtd.19/06/2009 for Cox & Kings.  According to the Complainant he had an user id with Ezeego one and routinely booked air tickets with Ezeego 1 but always for travel for himself or his family.  It is alleged that all these transactions were listed under his account id and there were no transactions on 19/06/2009.  The copy of the relevant bank statement showing the illegal transaction referred above is filed as Exh.‘A’.  According to the Complainant, he had never any transactions with Cox & Kings.  According to the Complainant, he immediately contacted the Opposite Party for charge back the amounts of aforesaid transactions by saying that he had not made those transactions nor he approved them.  It is alleged that the Opposite Party asked the Complainant to pay undisputed amount which he immediately paid by cheque, dtd.08/07/2009 of Rs.8,473/-.  His credit card was immediately blocked as advised by the Opposite Party. 

 3)        It is the case of the Complainant that he also complained to the merchants and the Opposite Party by e-mail dtd.12/07/09.  The copy of which is at Exh.‘B’.  In response to the complaint the Opposite Party sent the Complainant, photostate copy of the transaction slip and requested him to verify and confirm validity of charges.  The copy of the said document dtd.06/08/09 is marked as Exh.‘C’.  Then the Complainant contacted the Opposite Party on 10/08/09 and informed that the transactions referred above were not done by him or authorized by him.  The Opposite Party however, asked the Complainant for the payment of the aforesaid illegal charges. The Complainant handed over an application dtd.10/11/09 to the representative of the Opposite Party which is marked as Exh.‘D’. According to the Complainant, the Opposite Party instead of acting in the interest of the customer (Complainant) took shelter of clause 14 of card member rules attributing assumed laps of security from his site.  The copy of the letter of Opposite Party dtd.24/11/09 is marked as Exh.‘E’.  It is alleged by the Complainant that in view of the aforesaid facts the Complainant had taken adequate care in exercise of its rights as card holder.  The Opposite Party failed to take any action to verify and confirm security breach at its end or elsewhere.  The Opposite Party by letter dtd.08/12/09 informed the Complainant of initiation of investigation at their end and promised to revert on completion of the same.  The Complainant thereafter again fax the last communication. The copy of which is marked as Exh.‘F’. 

 4)        According to the Complainant, the Opposite Party without following the procedure regarding the grievance of the Complainant and cooperating with him has unfairly continued to show the disputed amounts as due from the Complainant and also levied interest and penalties on the said amounts in subsequent account statement.  The latest statement dtd.22/03/2010 filed at Exh.‘G’ shows that Rs.32,207.74 paise are due against the Complainant.  The Complainant has alleged that the Opposite Party has conducted unfair trade practice under Sec.2(1)(r) of the Consumer Protection Act, 1986 by misleading him to believe that his banking operation are safe but without the knowledge of the Complainant approved and allowed illegal transactions.  It is alleged that there is deficiency in services on the part of Opposite Party, as Opposite Party has not refunded his money which were deducted illegally from the account of the Complainant.  It is alleged that the actions of the Opposite Party caused severe mental stress to the Complainant.  It is therefore, prayed that the reliefs claimed in para 1 of this order may be granted against the Opposite Party.

5)        The Opposite Party contested the claim made in the complaint by filing written statement.  It is denied that there is deficiency of services and unfair trade practices on the part of the Opposite Party.  According to the Opposite Party, the complaint is not maintainable on account of non joinder of necessary parties such as, Ezeego One Travel and Cox & Kings with whom the credit card transaction incurred by the Complainant has been claimed as disputed. It is contended that the concerned transactions accrues due to concern credit usage, which is still with the Complainant.  It is the case of the Opposite Party that Complainant disputed those transaction with the concerned merchant establishment, who came with supporting documents and proved the valid transactions and accordingly Opposite Party has made payment to concern merchant establishment and in return Complainant is bound to make payment of those transactions to the Opposite Party as per credit card usage rules. If Complainant is not satisfied with proof of successful transaction made with credit card which was in possession of Complainant provided by concerned merchant establishment as party to present complaint in order to ascertain true facts of the case and in absence of same complaint deserves to be dismissed on account of non joinder of necessary parties.

 6)        The Opposite Party admitted that credit card ending no.4127 was issued to the Complainant on 17/05/1999. Copy of credit card with MID duly signed by the Complainant is filed as Exh.‘1’. It is denied that the Opposite Party allowed illegal charges of Rs.14,385/- and Rs.7,535/-. It is contended that the Complainant is required to prove the same.  According to the Opposite Party, monthly statement sent by Opposite Party Bank to the Complainant carries various details such as, usage incurred by the Complainant, financial or other charges if levied and payment received from account holder.  The contents of monthly statement of Dec., 2008 till filing of written statement are self explanatory which are as Exh.‘2’ colly.  

 7)        It is contended that the Opposite Party Bank is just a facilitator between the merchant and customer for the transaction and is settling the payment on behalf of the customer with the merchant and customer would makes the payment to the Opposite Party.  It is submitted that the records of the Opposite Party chose that the credit card bearing No.5546232906464127 issued to the Complainant was utilized for the transactions in question on internet/online transactions.  The said transactions had been incurred through secured internet site by the Complainant which needs to be operated by specific procedure by the customer.  The Opposite Party in para 7 of the written statement has explained in detailed the said procedure for operating secured internet site by the customer.  It is submitted that the records of the bank shows that the Complainant is registered for Verified by Visa (VBV) on 18/06/2009 which means that Complainant had created password for performing secured online performance through his card account. At the time of registering for VBV/Master Code the customers will be asked to input (1) Expiry date (2) Date of birth (3) CVV (the three digit number mentioned on the back of credit card).   It is submitted that these details are known only to the card member unless otherwise shared.  It is further submitted that post entering the above details the customer would be asked to enter the (1) Password (2) Confirm Password (3) Personal Message. This personal assurance message will be displayed every time the member transact on a 3D secure merchant site.  According to the Opposite Party the merchant site is an authentic site if the same personal assurance message is displayed.

 8)        It is alleged that the Complainant had registered for VBV (Verified by Visa).  On 18/06/2009 and the transaction were incurred on 19/06/2009.  It is submitted that the merchants were also VBV and as those were secured internet transaction and as the transaction amounts were settled with the merchant by the Opposite Party Bank was not refunded by them to the Opposite Party Bank and as such, it is the responsibility of the Complainant to make the payment towards the said transactions as those were valid settled transactions.  

 9)        It is contended that the Complainant had approached the bank on 02/07/09 and disputed the aforesaid two transaction amount.  For the safety and security of the card the Opposite Party Bank had blocked the credit card on the same movement.  It is contended that as per the annexure filed by the Complainant alongwith the complaint the merchant Ezeego had replied to the Complainant stating that in case the transaction is not genuine, then the merchant will give credit of the disputed amount within 7 working days and the Complainant was advised to contact the bank to check for credit.  It is submitted that as per the bank statements on 22/07/09 a credit of Rs.540/- has been received from the merchant Ezeego.  It is submitted that thus, the Complainant had transacted at Ezeego Travels on 19/06/09 for Rs.14,385/- and subsequently cancelled the booking and merchant had given credit  for Rs.540/- on 10/07/09 post deducting the applicable charges.  The Opposite Party has contended that it is essential to take clarification from the merchant Ezeego and the transaction disputed by the Complainant and the reason for refund/credit of Rs.540/- to the Complainant’s card account.  The Opposite Party reiterated that it is just a facilitator between the customer and the merchant to transact between them and any dispute or clarification on the transaction can be explained only by the merchant and customer.  It is further contended that as per the process of the Opposite Party, Dispute Declaration Form (DDF) was collected from the Complainant towards the transaction disputed by him and the dispute was taken on with the merchant through card association. The merchant had confirmed and authenticated the transaction and provided supporting documents, which is the evidence that the card issued to the Complainant was utilized for the disputed transactions.  It is thus, denied that the Opposite Party did not assist the Complainant in investigating the matter.  According to the Opposite Party if the transactions are alleged to be forged, why the Complainant had not approached the police authorities for investigation and assistance. It is contended that the Complainant failed to involve the merchants to whom the transactions were undertaken as parties in the present complaint for clarification.  It is submitted that the authenticity of the transactions should be verified only with the merchants.  It is contended that the disputed transactions were valid and successful as per the Opposite Party records and as per the confirmation received from the merchant.  It is contended that the Complainant failed to clear outstanding dues despite repeated request from the Opposite Party and is shifting the blame on the Opposite Party Bank with reason best known to the Complainant.  It is also submitted that transactions incurred would have been done due to the negligence of the Complainant for which the Opposite Party is not liable but is entitled to recover the concerned transactions amount from the Complainant as per applicable rules.  It is contended that the issues involved in this case are complicated and cannot be decided by summarily and requires detailed evidence and trial of the parties including merchant, hence, the same may be referred to the Court of the competent jurisdiction and complaint may be dismissed.  According to the Opposite Party the Complainant is liable to pay Rs.37,245.16 as on 12/08/2010.  It is submitted that there is no deficiency in service and unfair trade practice indulged by the Opposite Party, the complaint deserves to be dismissed on merits.  

 10)      The Complainant filed his affidavit at the time of filing of complaint, thereafter filed rejoinder to the written statement of the Opposite Party and also filed affidavit in evidence.  The power of attorney of the Opposite Party Britto filed his affidavit and confirmed the contents of the written statement.  Both the parties filed their written arguments.  We heard Smt. Rashmi Manne and Mr. Gaurant Nalawala, Advocates for the Complainant and Smt. Pradnya Lade, the Ld.Advocate for the Opposite Party.  

 11)      While considering the rival contentions of both the parties it is necessary to be seen that the Opposite Party is the facilitator between the customer and the merchant to transact between them.  The contention raised by the Opposite Party that any dispute or clarification on that transaction can be explained only by the merchant and the customer in our view is just and proper.  In the present case the Complainant has not filed the complaint against Ezeego One Travels and Cox & Kings Pvt. Ltd. with whom the credit card transactions incurred on the basis of the credit card facility available to the Complainant.  The contention therefore, raised by the Opposite Party that the complaint is not maintainable on account of non joinder of necessary parties can be accepted.  In the present case the Complainant without joining the merchants is unnecessary expecting to give clarification of the disputed transaction by the Opposite Party.  In our view it is necessary to take clarification from the merchants regarding the transactions disputed by the Complainant in the present complaint & for that they were required to be made as Opposite Parties.  The Complainant has not disputed the procedure laid down in para 7 of the written statement by the Opposite Party for the use of credit card facility to the customer.  In our view, the contention of the Opposite Party that the credit card holder/customer is required to give information for allowing the transaction by giving post entering details such as, 1) Password 2) Confirm Password 3) Personal Message, and the customer has to take into consideration that the merchant site and authentic site only if the same personal assurance message is displayed.  In our view therefore, the disputed transactions as being secured internet transactions the Opposite Party was not having other alternative but to settle the same with merchant as per the direction of the Complainant.  The contention raised by the Opposite Party that the authenticity of the transaction should be verified only with merchants is also just and proper.  However, the Complainant did not joined the merchants of whose transactions amounting to Rs.14,385/- and Rs.7,535/- have been disputed, we therefore, hold that on this count the complaint deserves to be dismissed, as well as for non joinder of necessary parties.                                                         

12)      It is also pertinent to note that as per the record the Complainant had transacted at Ezeego Travels on 19/06/2009 for Rs.14,385/- and subsequently an amount of Rs.540/- appears to have been deposited by Ezeego Travels on 10/07/09 to the account of the Complainant to the tune of Rs.540/-.  The Complainant in the complaint has not given any explanation as to how the said amount has been deposited to his account by Ezeego Travels.  He had not explained whether he had cancelled the booking and the merchant had given credit of Rs.540/- on the aforesaid date or on which account or reason the said amount had been deposited by merchant Ezeego to the Complainant’s card account.  It also appears that the Opposite Party vide its letter dtd.06/08/2009 sent charge slip copy pertaining to the transaction with Ezeego One Travels dtd.19/06/2009 amount to Rs.14,385/- and informed the Complainant that the said document will enable him to recognize the charges. The copy of the said documents is filed at Exh.‘C’ to the complaint on which the information regarding 1) Request ID 2) Acquirer Reference Data 3) Primary Account Number  4) Issuer Control Number 5) Issuer ICA 6) Transaction Amount 7) Acquirer Response Memo  8) Issuer Response Memo  9) Record Status, is given.  From the said document it appears that  the reply of merchant Ezeego have been received to one Rajendra Nagpal having address Queen Merry Apt., 3, Mahim, Mumbai, Maharashtra – 99, and details of his landline phone and mobile phone numbers are also mentioned.  His e-mail address is also mentioned. It appears from Exh.‘C’ document that the Complainant got knowledge as to how the transaction with Ezeego Travel through the Opposite Party was operated however, it appears that till filing of the present complaint i.e. 20/05/2010 the Complainant did not take any steps to investigate the matter with Rajendra Nagpal whose name and other details were available to him.  The Opposite Party has also placed on record the copy of the transaction with Cox & Kings by producing the same vide application dtd.01/08/2013.  On the said document also the name of Rajendra Nagpal and the details mentioned as above are appearing.  Thus, it is surprising to note that what prevented the Complainant for not contacting Rajendra Nagpal till filing of the complaint as the Complainant ought to have joined him as Opposite Party to the complaint to ascertain the truth regarding disputed transactions.  The complaint is therefore, bad-in-law whose details were made known to him vide documents at Exh.‘C’. It is also pertinent to note that the Complainant in the complaint tried to pose that the aforesaid transactions are nothing but the forgery committed by the use of details of his credit card and the Opposite Party did not take any cognizance of it.  In our view we are unable to understand the reasons if the transactions are alleged to be forged, why the Complainant had not approached the police authorities for investigation and assistance. In the written argument the Complainant has contended that the Opposite Party did not give such advice to approach the police by him and tried to blame the Opposite Party in our view the said excuse tried to be submitted by the Complainant is not at all acceptable.  In our view on the basis of the details regarding the transactions of Ezeego placed on record as per Exh.‘C’ the Complainant ought to have taken criminal action against the alleged Rajendra Nagpal, whose name is appeared in the said documents.  Considering all these facts and the possibility that the details which are known only to the card member (in the present case to the Complainant) might have been shared with someone else by the Complainant also cannot be ruled out. The another possibility that the disputed transactions could have been done due to the negligence of the Complainant also can be said probable.  The contention raised by the Opposite Party for such acts of the Complainant the Opposite Party is not liable and the Opposite Party is entitle to recover the concerned transaction amount from the Complainant also can be said just and proper. We therefore, hold that the Complainant has failed to prove that there is any deficiency on the part of the Opposite Party. The Opposite Party being the facilitator between the customer and merchant and is required to abide by the instruction of the customer as laid down for the use of facility of credit card and in the present case as contended by the Opposite Party the required instructions and conditions were complied and therefore, the Opposite Party has settled the payment on behalf of the Complainant is required to be accepted.  In the result we hold that the Complainant has failed to prove his case on merits as well as for the lacunas referred above and as such, the same is liable to be dismissed.  We therefore, pass the following order –

O R D E R

i.                    Complaint No.173/2010 is dismissed on merits with no order as to cost.

ii.                Certified copies of this order be furnished to the parties.