IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/37/2019.
Date of Filing: Date of Admission: Date of Disposal:
11.03.19 01.04.19 07.04.22
Complainant: Sangita Sarkar
W/o Goutam Kr. Sarkar
Kadbeltala, Jiaganj
PO&PS-Jiaganj, Pin-742123
Dist-Murshidabad
-Vs-
Opposite Party: 1.Branch Manager,
State Bank of India
Jiaganj Branch,
PO&PS-Jiaganj
Dist-Murshidabad
Pin-742123
2. Manager/Proprietor
Chargeback Team,
SBI Card, 10th Floor,
Tower C, DLF Infinity, DLF Phase 2,
Gurgaon, Hariyana
Pin-122002
Agent/Advocate for the Complainant : None.
Agent/Advocate for the Opposite Party No.1 : Satinath Chandra
Agent/Advocate for the Opposite Party No.2 : Amritendu Narayan Roy.
Present: Sri Ajay Kumar Das…………………………..........President.
Sri. Subir Sinha Roy………………………………….Member.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Sri Ajay Kumar Das, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Sangita Sarkar (here in after referred to as the Complainant) filed the case against The Branch Manager, State Bank of India, Jiaganj Branch & Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant made a transaction on 12.08.18 of Rs.2,965/- from a credit card ending with 5426. The said transaction was made at New Laxmi Narayan Bastralaya, a textile shop situated in Jiaganj.
The Complainant upon checking her credit card ending with 5426’s transaction details at the end of the month, noticed that the above mentioned transaction was of Rs. 2,965/- being debited twice from her card when she transacted it only once.
New Laxmi Narayan Bastralaya stated to her that even single money was not credited in his account from the Complainant and he stated that after drawing out his statement.
Thereafter the Complainant contacted the SBI’s Customer Care as soon as she came to know what happened. The Customer Care Executive on the other end noted everything down but the Complainant did not get any help from that end. She prays for relief as per prayer of the Complaint.
OP No.2, the Manager/Proprietor, Chargeback Team is contesting the complaint by filing written version denying all the materials allegations in the complaint stating inter alia that the Complainant is not maintainable and is liable to be dismissed as no cause of action arose in favor of the Complainant and against the answering OPs and New Laxmi Narayan Bastralaya has not even made party in the instant complaint.
It is specifically submitted by the OP No.2 that OP No.2 had repeatedly contacted the Complainant through various communication, channels asking the Complainant to submit various information and documents required to initiate investigation. It was in fact the Complainant failed to furnish the required information and documents.
OP No.1, State Bank of India, Jiaganj Branch is also contesting the complaint by filing written version denying the materials allegations in the complaint and stated inter alia that the complaint is barred by the law of limitations, the complaint case is barred by jurisdiction and the complaint case is bad for defect of parties.
It is stated by the OP No.1 that there is no allegations against the OP No.1. The relation in between the Complainant and the Opposite Party is Banker and Subscriber. As the Banker, there is no negligence or deficiency in service and so far as the allegations relating to credit card is concerned. The Complainant is not at all a consumer under the OP No.1. The OP No.1 has not issued credit card to the Complainant. The OP No.1 prayed for expunging its name from the complaint.
On the basis of the complaint and the written versions the following points are framed for proper adjudication of the case :
Points for decision
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
-
4. Has the OP any deficiency in service, as alleged?
5. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1
Point No.1 is taken up for consideration. Ld. Advocate of the OP No.2 submitted before this Commission that they tried to solve the problem of the Complainant but the Complainant did not produce the required documents and as such the OP No.2 was forced to close the dispute as Complainant liability. He further submitted that OP No.2, in collaboration with OP No.1 issued the SBI Card. On perusing the copy of SBI Card ( which was endorsed ‘seen’ by the Ld. Advocate for the OP No.2) we find that logo of SBI has been used.
Ld. Advocate for the OP No.1 has submitted before this Commission that they have stated in the written version cum evidence that the OP No.1 did not issue the credit card to the Complainant.
From section 2(7) of the Consumer Protection Act, 1919 we find that the expression “buys any goods’’ and ‘’hires or avails any services’’ includes offline or online transactions through electronic means or by teleshopping or direct selling or multi level marketing.
In the instant case, the Complainant consumes services of SBI Cards having logo of SBI. It is also alleged that the amount of money that was debited for the swipe of SBI card made by the Complainant was required to be credited in the A/C of New Laxmi Narayan Bastralaya which is maintained with the OP No.1 i.e. State Bank of India, Jiaganj Branch. Though OP No.2 issued the credit card having logo of SBI but considering the facts and circumstances of the case and keeping in mind the submissions of Opposite Parties and the Complainant, we are of the view that the OP No.2 issued the Credit card following the direct or implied instructions of SBI.
In view of the matter discussed above, we are of the view that the Complainant is the consumer under the provision of the C.P. Act, 1986.
The point No.1 is thus disposed of.
Point No.2
On perusal of the record we find that the Complainant made a transaction on 12.08.2018 from a credit card ending with 5426 and the said transaction was made at ‘New Laxmi Narayan Bastralaya’, a textile shop situated in Jiaganj.
The cause of action of this case arose on 12.08.2018 and thereafter the case was filed 01.04.2019.
Section 69 of the Consumer Protection lays down that the District Commission or the State Commission or the National Commission shall not admit a case unless it is filed within two years from the date on which the cause of action has arisen.
In the instant case, the Complaint was filed within two years from the date on which the cause of action has arisen.
I also peruse the section 34 of the act regarding jurisdiction of District Commission.
The cause of action arose within the jurisdiction of this District Commission. The OP No.1 carries on its business within the jurisdiction of this District Commission. The Complainant resides within the jurisdiction of this District Commission.
Here we find that the Complainant was filed following the provisions of section 69 and 34 of the act.
Such being the position, the point no. 2 is decided in favor of the Complainant.
Point No.3
Ld. Advocate for the OP No.2 submits that it is alleged that Rs.2,965/- was deducted twice for the swipe of SBI credit card made by the Complainant, but the said amount was not credited in the A/C of New Laxmi Narayan Bastralaya and as such said New Laxmi Narayan Bastralaya is a necessary party but it is not done so. So the case is bad for defect of parties.
From the statement of credit card No.xxxx xxxx xxxx xx95, we find that on 12.08.18, Rs. 2,965/- was deducted twice for the payment to the New Laxmi Narayan Bastralaya. It is alleged that the said amount was not credited in the A/C of New Laxmi Narayan Bastralaya.
According to section 106 of the evidence act, when any fact is specially within knowledge of any person, the burden of proving that fact is upon him.
Under such circumstances, it is the duty of OP No.2 to prove the transaction as the fact of transaction ought to be within the special knowledge of OP No.2.
Moreover, from the order No.9 dated 27.11.19, we find that OP No.2 was directed to produce documents in respect of credit of Rs.2,965/- twice on 12.08.19 from the credit card of the Complainant being No. 5426. But that order was not complied with.
Under such circumstances, it may be presumed under section 114 of the evidence act, that the document if produced, would be unfavourable to the OP No.2.
On the contrary, the Complainant has filed this statement of Account No. 36568488198 of New Laxmi Narayan Bastralaya where from it is found that nothing was credited to the said account of New Laxmi Narayan Bastralaya on 12.08.19 for the swipe of credit card made by the Complainant.
In view of the matters discussed above we are of the view that the submission advanced by the Ld. Advocate for the OP is baseless.
The point no. 3 is thus decided in favour of the complainant.
Point Nos. 4&5
The Complainant is personally present. She herself takes part in the argument.
She submits that OP No.2, Chargeback Team can issue credit card in the name of any person if that person maintains an account with the SBI Bank. This fact is admitted by the Ld. Advocate for OP No.2.
The Complainant submits before this court that SBI controls the credit card. This fact is also admitted by the Ld. Advocate of OP No.2.
The Complainant submits before this court that on 12.08.18 he purchased cloths of Rs. 2,965/- and for that purpose she swipe her credit card and Rs. 2,965/- was debited from her card twice but it was not credited in the account of Laxmi Narayan Bastralaya. She further submits that Rs.2,965/- and Rs. 2,965/- was debited from her credit card twice though she swipe once.
Ld. Advocate for the OP No.2 submits that no money will be deducted twice in one swipe. So the submission made by the Complainant is baseless.
On perusal of the relevant documents i.e. statement in connection with the credit card No. xxxx xxxx xxxx xx95 that Rs.2,965/- was debited twice. It is immaterial whether the Complainant swipe her credit card once or twice, as it is prominent from the said statement that Rs.2,965/- X 2= Rs. 5,930/- was deducted from the credit card of the Complainant.
Ld. Advocate for the OP No.2 submits that as per statement filed by the Complainant Rs.5,930/- was deducted from her credit card but she has stated in her complaint that Rs.8,895/- was deducted and it is mentioned in column No.4 of the complaint. The Complainant submits before this court on this point that as no money was credited in the account of New Laxmi Narayan Bastralaya, she had to pay Rs.2,965/- and as such she has mentioned amount of Rs.8,895/- i.e. (Rs.2,965/-*3).
Ld. Advocate for the OP No.2 submits that as per statement filed by the Complainant, she made a transaction of Rs.2,965/- on 12.08.18 twice from a credit card ending with 5426. But the Complainant has filed the statement of the credit card number ending with 95.
On this point, the Complainant submits that the credit card ending with 5426 is the Add On card of credit card number ending with 95.
Ld. Advocate for the OP No.2 submits that there is no averment to the effect in the complaint that the credit card ending with 5426 is the Add On card of the credit card ending with 95. So the Complainant fails to prove that the credit card ending with 5426 is the Add On of the credit card ending with 95.
Ld. Advocate for the OP No.2 submits that the credit card ending with 95 is in the name of Goutam Kr. Sarkar. The Complainant is the wife of said Goutam Kr. Sarkar. The Complainant has no authority to use the card of her husband as per the rules of the Bank.
On perusal of the statement in connection with the Credit Card No ending 95 we find that the Credit Card No ending 95 is in the name of Goutam Kr. Sarkar and on Credit Card No ending with 5426 is in the name of Sangita Sarkar who is the wife of Goutam Kr. Sarkar. From the said statement we also find the name of Sangita Sarkar who swipe her card is in the statement of the Credit Card No ending 95. So we find that the credit card ending with 5426 is the Add On of the Credit Card ending with 95.
Ld. Advocate for the OP No.2 submits that it is alleged by the Complainant that her aforesaid amount of money was debited from her credit card twice. But nothing was credited in the account of New Laxmi Narayan Bastralaya.
OP No.2 further submits that New Laxmi Narayan Bastralaya may have many accounts. It may be possible that swipe machine was not tagged with the account number for which the statement has been filed. The Complainant submits that she files the statement of account number of New Laxmi Narayan Bastralaya in which the swipe machine is attached.
As the Complainant proves that Rs.2,965/- X 2= Rs.5,930/- was deducted from her credit card and the said amount was not credited in the given account of New Laxmi Narayan Bastralaya, the burden of proof lies upon the Opposite Parties to show that the debited amount of money of the Complainant was credited in any account of New Laxmi Narayan Bastralaya.
Ld. Advocate for the OP No.2. Chargeback Team submits that he has no scope to refund any amount of money to the Complainant if found due. As Chargeback Team is under the control of SBI, SBI is liable to repay the amount if found due.
On this point, the Complainant submits that both are liable to pay the amount.
Ld. Advocate for the OP No.1 submits that they are not responsible for the refund of money.
The facts and circumstances of this case, the evidence available in the record and the submissions made by the parties clearly suggests that O.P. 2 is directly responsible to make the payment to the complainant, particularly when we find that O.P. 2 issued the credit card to the complainant and her husband.
The point no 3 & 4 are thus decided in favour of the complainant.
Reasons for delay
The Case was filed on 11.03.19 and admitted on 01.04.19. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case is allowed.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/37/2019 be and the same is dismissed on contest against the OP No.1 but allowed on contest against the OP No.2 with litigation cost of Rs.1,000/- ( Rupees one thousand) which is payable by OP No.2 to the Complainant within 60 days from this day.
OP No. 2 is directed to pay Rs. 5,930/- (2,965/- X 2) ( Rupees five thousand nine hundred and thirty) to the Complainant within 60 days from the date of this order in default the OP No.2 is liable to pay interest @ 10% PA to the Complainant from the date of this order till realization.
OP No. 2 is further directed to pay compensation of Rs. 3,000/- ( Rupees three thousand) for deficiency in service and negligence to the Complainant within 60 days from the date of this order.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member Member President.
