FINAL ORDER/JUDGMENT
Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case:
This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that The complainant is an account holder of OP No.1 bank vide SB account no.35720256137. He used to enjoy the service of OP no.1 as a customer since long and in the month of April/May 2018 on number of occasion, numerous unknown people made telephone call through unknown numbers to the complainant and claimed themselves to be the employee of OP no.1 bank and also asked him to deposit some important documents e.g. Aadhaar Card, PAN Card etc. to the bank and also told the complainant failing which his account should be closed, being confused & perplexed the complainant rushed towards the office of OP No.1 & made contact with the OP No.1 who advised him to meet with some persons who made telephone call to the complainant and the complainant further submit before the forum that he is a less educated person and he can only sign his name, by taking advantage of the situation &also his innocence the aforementioned persons took the photocopy of his Aadhaar & PAN Cards etc. and also compelled him to sign over some documents which were written in English language, without explaining him anything and subsequently the aforementioned persons told the complainant that a credit card will be delivered later on at his residential address, but when he expressed his unwillingness to receive the credit card then the aforementioned persons misguided him by stating that every bank account holder must have to accept credit card as per provision of Digital India scheme of Govt. of India. There after being confused, the complainant had been compelled to accept their proposal and few months after the complainant received the credit card through postal service and also receive a letter along with secret PIN Number on the letter head of ÓP No.1’. It is to be noted herein that since receiving the PIN Number of the complainant neither open the PIN Number as per neither process nor used the said credit card anywhere and on consecutive phases the OP No.2 on number of occasion sent various letter in a scaled envelop to the complainant but as he is an inexperienced person and also as he never used the said credit card, so he did not open those envelops and/or perused those letters and the complainant again received two letters from OP No.2 & on that moment with the help of a near relative he came to know through the said two letters dt.02/10/2018 that though he never used the said card in anywhere and in anytime, but on 02/06/2018 some unknown person/persons on two times by using the said credit card mis-appropriate and/ or receipted the amount of Rs.16,400/- (Rupees sixteen thousand four ;hundred) only from savings Bank account of the complainant. More so the complainant with the help of his said near relative confirmed about the subject matter of the previous letters send by the OP No.1 authority and also after updating his Bank pass book it was affirmed that he was cheated seriously.
Later on through a letter dt.04/10/18 the complainant made some specific request to the OP no.1. In this regard the complainant further state that some dishonest person/persons forcefully & by creating confusion compelled the complainant to receive the credit card and therefore out of greed & to gain their personal interest and also keeping the complainant in dark committed forgery & cheating upon him. It is very much pertinent to mention here that till today the complainant never use the said credit card in any place and in anytime, though the OP No.1 deducted Rs. 3095/- (Rupees three thousand ninety five) only from complainant’s account, for which the complainant faced financial loss. Apart from the OP No.2 illegally demanded Rs.18,805/- only by sending bill and the complainant through a letter dt.02/11/18 requested the OP No.1 authority for necessary remedy against the cheating and fraud acts & deeds committed upon him after inquiry and investigation and also to refund his Rs.3095/- only which was deducted by the OP No-1 but there were no fruitful result.
Complainant filed the complaint petition praying direction upon the opposite parties to take necessary steps to return the deducted amount of Rs.3095/- only to the complainant along with interest and to take proper action to stop and/or prevent all the fraudulent activities related with credit card Op No.2 and to take immediate and necessary measurement to stop unwanted, harrassive and threatening phone calls which are coming from the OPs to the complainant and to pay a sum of Rs. 1,00,000/- for harassment, loss, mental torture agony & pain.
Defense Case:- The opposite party Nos.2contests the case by filing written version denying inter-alia all the material allegations leveled against him and states that the said transactions in dispute are online transactions and it is pertinent to note here that all the online transactions are 3D secured transactions and any online transactions cannot be completed without obtaining one time password or OTP sent to the registered mobile number of the card holder and the card holder has to disclose his/her mobile number in the application form and that number is being noted as Registered Mobile Number of the card holder and any information regarding the card including the OTP generated at the time of making online transactions is being sent to the said registered mobile number and it is pertinent to note here that the card holder is being specifically and categorically told not to share their card details or OTP with any third person for safety and security of the card and OTP was delivered in the said registered mobile number of the complainant and using the said OTP all the transactions were made and it is quite clear the complainant was well aware of all the transactions and since the said transactions were OTP based the same could not be carried away without the consent and knowledge of the complainant and the complainant to avoid his legal liabilities towards the said transactions has made the said complaint concealing material facts and circumstances of the said matter and the transactions details alongwith I.P addresses has been described in the written version and the complainant had availed a credit card vide card no.0004726427756113734 basis receipt of duly filled application form received in the month of May 2018 and during the time of application the complainant had opted for the simply save card for an annual fee of Rs.499 and in application form the complainant had opted for the auto debit option and auto sweep option for the payment of the outstanding amount and through which payments were received are described in the written version. So it is clear that the complainant had full knowledge of the said transaction. So the complainant case is liable to be dismissed.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2(1)(d) of the Consumer Protection Act,1986.The point is thus answered in the affirmative.
Issue no.2:
Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
Allegation lies upon the O.Ps that the petitioner was forced to receive SBI credit card by the persons of O.P 1. But he has never used the same nor has he opened the envelope containing the PIN. Complainant’s specific case is that he has never used the said credit card anywhere. His further case is that on consecutive phases he received several sealed envelopes but as he never used the said card he did not feel to open those envelopes. He was astonished to found that an amount of Rs. 16400/ was misappropriated on two consecutive occasions through the said card which he has neither used nor even opened the sealed envelope bearing the PIN. He was astonished to see that an amount of Rs. 3095/ was deducted from his account without giving any intimation to him. This matter was also intimated to the local police station.
His further allegation is that O.P 2 repeatedly demanded Rs.18805/ by sending bills for which the petitioner lodged complaint to O.P 1 which gives rise to the present complaint for the reliefs mentioned therein.
This case is heard ex parte against O.P 1. O.P 2 challenges the petition of complaint which, according to it, has been filed before the commission which is devoid of jurisdiction to entertain such complaint. Specific case of O,P 2 is that while receiving the card in dispute the petitioner has definitely disclosed his mobile number and according to this O.P 2 the complainant made some transactions with the present card using the OTP in some transactions and as such he was quite aware about all the transactions where submission of OTP is must . This O.P has made details of some transactions in its written version and has lodged complaint that the petitioner was quite aware having full knowledge of some transactions. As such, the complainant has concealed some material facts and thus has prayed for dismissal of the complaint.
The only question to be decided in view of the above perspectives whether there was any transactions details of which have been given in the written version of O.P 2. The O.P 1 has not dared to contest the case which could give some light in the matter. The petitioner has claimed himself to be a less educated person and his can only sign his name. His signatures in the petition of complaint also appear to be in consonance with his statements. His statement about the taking of the photocopy of his aadhar and PAN cards by some persons compelling him to sign over some documents which were written in English language without explaining him anything has not been controverted by uttering any single word in the written version of the O.P 2. The complainant has deposited the original un opened PIN along with the credit card in original with lock and key for keeping in safe custody vide order no. 23 dated 1/4/22 which were opened on 1/2/2023 vide order no. 31 which were lying under the safe custody under this commission . This commission has taken into consideration the original credit card and unopened envelope containing the PIN of the credit card. A perusal of both the documents referred to herein above gives opportunity to this commission that both the documents have never been used for any purpose which gives a go by to the written version of O.P 2.
In this connection this commission is fortified with the observation in Lucknow Development Act vs M.K.Gupta ( 1994) 1 SCC 243 wherein it has been observed that this present Act attempts to remove the helplessness of the consumer which he faces against powerful business, described as, “ a network of rackets “ or a society in which, “ producers have secured power” to “ rob the rest “and the might of public bodies which are degenerating into store houses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in curse of time succeed in checking the rot.”
In view of above taking advantage of less literary person ( the petitioner) both the O.Ps have done some acts upon him which do not appears to be entertainable which favors the complainant and as such decided against both the O.Ps.
Both the issues are thus disposed of.
Hence,
ordered
that the complaint case no. 80 of 2019 be and the same is decreed on contest against O.P 2 and decreed ex parte against O,P 1.
Both the O.Ps do take necessary stapes to return the deducted amount of Rs. 3095/ jointly and both the O.ps do pay jointly the compensation of Rs. 30000/ for harassment ,mental agony within 45 days from date failing which the complainant shall be at liberty to take recourse to law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
