PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)              The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, he is holding saving bank account with opponent no.1.  The opponent issued credit card no.4090 31111 0000 2447 in favour of the complainant.  The complainant received credit card statement dated 20/07/2012 on 26/07/2012.  The transaction for amount Rs.23990/- was not done by the complainant. Therefore, he raised the grievance with opponent no.1 vide e-mail dated 28/07/2012.  He also sent e-mail to opponent no.2.  On 31/07/2012 opponent no.2 informed the complainant that, disputed transaction was a “Card absent transaction done under secure environment of Verified by VISA” and they have no right for charge back.  The complainant was directed to take up the issue with the merchant establishment.  In spite of several correspondences the opponent did not take back the charges.   The complainant also lodged police complaint for this fraudulent transaction. As there was no compliance, the complainant has filed this complaint.

2)      Opponents appeared and filed written statement.  It is submitted that, opponent no.2 is at Bangalore therefore this forum has no territorial jurisdiction.  The matter involves fraudulent transaction which needs proper investigation and recording of detail evidence.  Therefore, it is necessary to approach the Civil Court.  The password was known only to the complainant.  Other person cannot operate credit card without knowing the password.  All the information demanded by the complainant was submitted.  There is no negligence on the part of opponent.  The opponents have not violated Rules and Regulation.  There is no deficiency on the part of opponents.  Therefore, the complainant is not entitled for the relief as prayed and the complaint is liable to be dismissed with cost. 

3)      After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- There is no dispute that, the complainant was holding Credit Card issued by the O.P.No.1. It is not the case of the complainant about loss of the Credit Card. According to the opponents, credit card can not be used unless password is entered.  It is alleged by the complainant that the amount was withdrawn fraudulently. At this juncture, we would like to rely upon the judgment of Hon’ble National Commission reported in I (2015) CPJ 254 (NC) in Revision Petition No.3973 of 2014, in the case of Raghabendra Nath Sen & Another –Versus- Punjab National Bank, decided on 17th December, 2014. In para 5 of the judgment, the Hon’ble National Commission has laid down as under :   

Para 5:    It can hardly be disputed that no withdrawal from an ATM can be made unless the ATM card / debit card issued to the account holder is inserted in the ATM machine followed by use of the ATM Pin provided to the customer. The ATM pin is known only to the customer and therefore, it is not possible for a third person to withdraw any cash through the ATM even if he is able to clone the ATM/debit card issued to the customer. In fact the case before us, this is not the case of the complainant that he had lost the ATM card issued to him by the bank. The said card was duly used at the ATM machine for making the transaction in question. The ATM pin obviously, must have been used since no transaction at ATM machine is possible without use of the PIN. Therefore, we cannot accept the contention of the complainant that the amount of Rs.5,000/- from his account was withdrawn by a third person and not by him. Even if the said amount was withdrawn by a third person, he would have done it using the ATM card provided to him by the complainant and the ATM pin disclosed by him.

Identical facts are before us. The card was with the complainant. The card was used for the transaction. As laid down by the Hob’ble National Commission, the credit card can not be used unless password is entered.  The password was known only to the complainant. Therefore, in view of the above said law laid down by the Hon’ble National Commission, the complaint of the complainant can not be accepted.

5) The complaint is based on the fraud. In case of fraud and cheating, it is necessary to prove the fraud and cheating first before arriving to any conclusion. For this purpose, we would like to rely upon the judgment of Hon’ble National Commission in the case of N.Shivaji Rao –Versus- M/s. Daman Motor Company & Others, reported in 1993- (001)-CTJ-(0107)-NCDRC. In this judgment, the Hon’ble National Commission has held as under :           

It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant-complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency in service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery thereunder cannot be effectively utilized for determining complicated questions of fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.  

We would also like to place reliance on the judgment of Hon’ble National Commission in case of Lala Samachar Newspaper –Versus- General Manager, Telecom Department, reported in 1998-(006)-CTJ- (0336)-NCDRC and judgment in the case of Reliance Industries Limited –Versus- United India Insurance Company Limited reported in 1997- (005)-CTJ-(0688)-NCDRC. In these judgments, the Hon’ble National Commission has held that in case of complicated questions requiring detailed investigation, direction should be given to seek relief in appropriate court. In the instant complaint before us, the complainant has alleged that the amount was withdrawn by fraud. Police complaint was also lodged. There is nothing on record to show the progress of police investigation. As laid down by the Hon’ble National Commission, in case of fraud, detailed investigation is necessary and therefore it is necessary to give direction to the complainant to approach the appropriate court. Therefore, we think it just to give liberty to the complainant to approach the appropriate court. Hence, we proceed to pass the following order.     

          ORDER

1) Complaint stands dismissed.

2) The complainant is at liberty to approach the appropriate court.

3) Parties are left to bear their own costs.                               

Pronounced on 30^th  August, 2016