ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE
(BEFORE :- PRESIDENT :- Smt. Pranali Sawant )
MEMBER :- Smt. Sujata Patankar )
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Complaint No. : APDF/73/2010
Date of filing :- 08/06/2010
Date of decision :- 15/12/ 2011
Mr. Ashok B. Nawal, .. )
R/at : ‘Supriya Classic’, F.No.701,801, .. )
S.No.112/1/3, Mahalunge Rd., Baner, .. )
Pune – 411 045. .. )… COMPLAINANT
: versus:
The Citi Bank, .. )
2413, Kumar Capital, .. )
East Street, Camp, .. )
Pune. .. )… OPPONENT
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For Complainant : Advocate Shri. Ghogale
For Opponent : ex-parte
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Per : Smt. Sujata Patankar, Member
//JUDGMENT//
The facts of the present case briefly stated are as follows :-
The Complainant was a credit card holder of the Opponent Bank, bearing Card number 4385879125982003, 5203860153104006 & 4564070083537012. He further contended that whenever the Complainant has made any transaction on Credit Card, he has made payments before due date all the times. It is the case of the Complainant that in the month of November 2006 the Complainant observed certain debits in his Credit Card Account which were objectionable. The disputed debits are as follows :-
Sr.No. |
Reflected in Statement |
Amount (Rs.) |
Merchant Name |
1. |
Oct.06 |
45.37 |
Suraksha Credit Shield Premium |
2 |
Oct.06 |
140.30 |
Suraksha Personal Accident Premium |
3 |
Oct.06 |
64.90 |
Suraksha Credit Shield Premium |
4 |
Oct.06 |
140.30 |
Suraksha Personal Accident Premium |
5 |
Oct.06 |
59.63 |
Suraksha Credit Shield Premium |
6 |
Oct.06 |
117.85 |
Suraksha Personal Accident Premium |
7 |
Aug.06 |
7448.00 |
Air Deccan |
8 |
Aug.06 |
5500.00 |
Campanion Ticket Charge |
9 |
Oct.06 |
2025.00 |
INDIGO |
10 |
Oct.06 |
3350.00 |
Sahara Airlines Ltd. |
11 |
Oct.06 |
3850.00 |
Sahara Airlines Ltd. |
12 |
Oct.06 |
2175.00 |
INDIGO |
13 |
Oct.06 |
3350.00 |
Sahara Airlines Ltd. |
14 |
Nov.06 |
5050.80 |
|
15 |
Nov.06 |
3515.00 |
INDIGO |
17 |
Oct.06 |
6700.00 |
Sahara Airlines Ltd. |
18 |
Jan.07 |
5350.00 |
Kingfisher Airlines |
[2] The Complainant called upon Citibank Service Centre. Vide letter dtd.20/11/2006 Respondent Bank asked the Complainant to send his complaint in duly signed declaration form in the format prescribed by the Respondent Bank. Therefore, the Complainant sent discrepancies with a duly signed declaration form in the format prescribed by Respondent Bank and also faxed the same on 25/11/2009 on toll free number. It is also further stated that out of the above entries, the entries bearing No. 1 to 6 are about the Suraksha Credit Shield Premium and Suraksha Personal Accident Premium. The Complainant has further stated that the Complainant was in bonafide belief that the said policy was availed to him without his permeation and approval. Out of said disputed entries bearing Nos. 7 & 8 are about AIR tickets booked by the Complainant under the Opponent Banks Fly for Sure offer. By this offer the Bank has offered 2 free Air tickets if the Credit card is used for Rs.75,000/-. The Complainant booked Air tickets under this offer. However without sticking to its offer Opponent Bank debited the ticket amount in his credit card account. The disputed amount is credited in the Complainant’s credit card account in the month of April 2008. However amount of late fees, interest charges @42% p.a., service charges, taxes levied/charged upon the said disputed entries is not removed from his credit card debits. It is also further contended that out of above said disputed entries, entries bearing No. 9 to 17 are not transacted by the Complainant. Further it is the contention of the Complainant that the Complainant has sent declaration stating disputed entries on 25/11/2006. The Complainant sent to the Opponent number of letters/emails requesting to re-credit the wrong debits alongwith interest and service tax charged thereon. The Opponent Bank vide letter dtd.18/1/2007confirmed that transaction in respect of disputed entries No. 9 & 12 are made by one Vijay Kale and Vijay Patole and asked Complainant to fill and sign declaration form & forward the same to the Opponent Bank. It is further contended that the above said declaration form was already sent to Bank on 25/11/2006. The Complainant immediately on 21/1/2007 responded to Opponent Bank that these transactions have not been done by him and therefore has requested to Opponent Bank and lodge the criminal complaint against the persons who have misappropriated his card fraudulently. It is also alleged by the Complainant that the Opponent Bank has not given any explanation about the entries bearing No. 10,11,13 to 17 inspite of repeated requests of the Complainant. The Complainant has further stated that the disputed entries are firstly reflected in Complainant’s statement of October 2006 and November 2006. He immediately lodged complaint with the Opponent Bank on 25/11/2006 in the prescribed form of declaration. However without taking any action against said fraudulent persons and assisting to the Complainant Opponent Bank continuously charged interest @42% alongwith service tax @12.36% on disputed entries. It is the contention of the Complainant that by neglecting and avoiding Complainant’s grievance Opponent Bank is continuously charging continuous interest alongwith penalty against the Complainant on disputed, fraudulent entries. On 19/7/2007, the Opponent Bank issued a letter giving false explanation to the disputed entries. Opponent Bank falsely alleged that the charge is more than 75 days old and therefore Opponent Bank is not able to initiate any action against the said charge. According to the Complainant, as far as the disputed entries bearing No. 9 to 17 are concerned, the Complainant has lodged the complaint within a month from the date of reflection of entries in his statement of October 2006 and November 2006 i.e. on 25/11/2006 in the prescribed form of declaration. Inspite of the fact that the entries are disputed, and the dispute is not clearly resolved, the Opponent Bank kept on charging interest as also demanded the amount which is illegally charged on Complainant. Therefore, the Complainant constrained to issue a legal notice dtd.3/11/2007 to the Opponent Bank, by which Opponent Bank in respect of removal of above said disputed entries. In response of the same Opponent Bank sent one formal letter vide Reference No. 006-314-950/COUR/VN dated 15/12/2007 mentioning that “we are reviewing your account records and we will revert back the same within a period of short time” etc.. It is also further stated that the Complainant received the phone call from Respondent’s employee on 31/3/2008 on his private cell, trying to threaten to deposit the subjected disputed amount. The Complainant against issued a legal notice dtd.4/4/2008 to the Respondent Bank. On 21/4/2008 Respondent Bank sent a reply to the notice of the Complainant dated 3/11/2007 & 4/4/2008 without giving any clarification about disputed entries No. 9 to 17. However in view to remove the discrepancy in respect of disputed entries No. 7 & 8 Opponent Bank reaccredited Complainant’s account with Rs.5500.00, the said transaction is reflected in the month of April 2008. By doing this Opponent Bank has admitted its fault. However amount of late fees, interest charges @42% p.a., service charges, taxes are levied/charged upon the said disputed entries are cleverly not removed from his credit card debits by the Opponent Bank. In its reply dated 21/4/2008, in respect of disputed entries No. 1 to 6 Opponent Bank pointed out that Suraksha Signup form was the part of application form for Gold Card No.4385879125982003 which is duly signed by the Complainant and the premium amount has been debited to his card since January 2004. Letter on the said Gold Card is converted to Business Card and outstanding in the previous card is debited to the present card. The Complainant is satisfied with the said explanation. However the said explanation is given after 17 months from filing of the complaint. Therefore the Complainant is ready to pay the amount of premium to the extent debited to his credit card account. However he is not ready to pay any amount of late fees, interest charges @42% p.a., service charges, taxes that are levied/charged upon the said disputed entries. If the said explanation would had been given immediately after filing of complaint to Bank on dated 25/11/2006, Complainant would be able to pay the same immediately. Therefore, Complainant again issued a letter dated 31/5/2008 in reply of above letter dated 21/4/2008. He showed his readiness to pay the amount in respect of disputed entries No. 1 to 6. As the amount paid to Opponent Bank is firstly utilized towards the late fees, interest charges, service charges, taxes etc., and Complainant is not liable to pay the same, till today the Complainant has not paid the same. It is also further submitted that meanwhile as the Opponent Bank marked Complainant’s card as defaulter on the credit bureaus Complainant constrained to file a complaint with Banking Ombudsman on 13/8/2008. Upon receipt of the copy of the complaint dated 13/8/2008, Opponent Bank again assured to the Complainant vide letter dated 24/9/2008 that they are looking into the matter. Opponent Bank again gave a reply vide letter No. Ref 008-363-156 dated 30/9/2008 without any explanation about the disputed entries No. 9 to 17 and on the same day Opponent Bank intimated to the Office of the Banking Ombudsman stating that the Opponent Bank has given response to the Complainant on 30/9/2008 and also requested Banking Ombudsmen to close the complaint. It is also further stated that name of the Complainant is removed as defaulter on the credit bureaus. According to the Complainant, the Opponent Bank has damaged his reputation by marking his card as defaulter on the credit bureaus without taking any steps towards resolving aforesaid disputes and inspite of Complainant’s prompt payments to the Opponent Bank. It is also the contention of the Complainant that cause of action firstly aroused in November 2006 and again on 24/9/2008 as also continuously arising till today. When without any reason the Opponent Bank is charging Late Fees, Taxes & Interest Charges 42% p.a. on disputed entries and also levying service charges against the complainant even when his card is closed and no service are availed by him from the Opponent Bank. On all these grounds and as specifically stated in the complaint application, the Complainant has prayed as follows :-
a. Opponent be instructed to inform “Credit Bureaus” and any other forum where Complainant was declared as defaulter, to reduce name from the defaulter’s list and compensate to the Complainant accordingly for damaging image and goodwill.
b. Respondent Bank may kindly be directed to remove the disputed entries bearing No. 7 to 17 and all the illegal charges in respect of Late Fees, Taxes & Interest Charges charged on all the Disputed Entries 1 to 17.
c. Respondent Bank may kindly be directed to withdraw all the service charges levied by them and interest, late fees and taxes thereon and also kindly be directed not to sent any bills henceforth.
d. Respondent bank may kindly be directed not to give any phone calls to the Complainant immediately pending decision.
e. Complaint also prays before this Hon’ble Forum to pass an order for compensation of Rs.15,00,000/- on account of damaging the goodwill and image of the Complainant & Rs.4,00,000/- for psychological/mental harassment and Rs.25,000/- for initiating the legal action.
f. Cost of the complaint may kindly be awarded to the Complainant.
g. Any other just and equitable order to be passed in the favour of the present Complainant.
[3] Alongwith the complaint application, the Complainant has filed list of documents at Exh.3, comprising 24 documents, consisting various letters/correspondence in between both the parties, legal notice, declaration, e-mails etc.. In addition to that the Complainant has also filed affidavit in support of the complaint application.
[4] In pursuance of the complaint application, this Forum issued notice to the Opponent. However even after service of notice, the Opponent chose to remain absent. Therefore this Forum passed ex-parte order against the Opponent on 30/9/2010 at Exh.1.
[5] The Complainant filed written notes of arguments on the record as also advanced oral submissions before the Forum.
[6] Taking into consideration, the complaint, documents and the written notes of arguments of the Complainant and the oral submissions made by the Complainant, the following points arose for our consideration :
Points Answers
1) Whether the Complainant has filed the present complaint
within a period of Limitation under the provisions of
Section 24-A of Consumer Protection Act, 1986 ? … No.
2) Whether the Opponent has rendered deficiency
in service to the Complainant? … No.
3) What order? … As per final order.
[7] After perusal of the documents produced on the record it is evident that the Complainant is a Credit Card Account holder of the Opponent Bank and this fact is not denied by the Opponent Bank by filing its say. Therefore we opined that the Complainant is a “consumer” of the Opponent.
[8] As per the contentions of the Complainant himself in the complaint application, specifically mentioned in para C Cause of Action :
“ Cause of action firstly aroused in November 2006 when Complainant observed certain debits in his credit card which are not transacted by him. The same again arouse when he first lodge complaint with Respondent bank on 25/11/2006.
In this context, it reveals that the Complainant himself has admitted the cause of action arouse in November 2006 and the Complainant has filed his complaint application on 8/06/2010 before this Hon’ble Forum. It means that from 2006 to 2010, more than period of two years are lapsed for filing the present complaint. As per the provisions of Consumer Protection Act, 1986, Section 24-A, the complaint is required to file within a period of two years from the date of cause of action. However in the present case, the Complainant has not filed this complaint application within the time limit as prescribed under the provisions laid down of Consumer Protection Act,1986. On perusal of the documents filed by the Complainant it is crystal clear that the cause of action arouse in the year 2006 and it is required to file this complaint in the year 2008 as per provisions of Consumer Protection Act. However the Complainant has filed this complaint after more than one and half year. The Complainant did not file any application for delay condonation with affidavit. 2011 (IV) CPJ 114 (NC) in the matter of Ramratan M. Shriwas V/s. Jayant H. Thakar has observed as under :-
“ Consumer Protection Act, 1986- Sections 2(1) (g), 21 (b), 24-A Flat Agreement – non honouring of commitments – Limitation – Forums dismissed complaint – Hence revision – Contention, continuous and long correspondence between parties and hence case of continuing cause of action – Not accepted – Once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties – Provision regarding limitation being of mandatory nature, Fora below was duty bound to determine whether complaint is within limitation period – Complaint barred by limitation.
“Position of law on the point is well settled. In fact, on and after accrual of cause of action, party cannot get the time of limitation enlarged by indulging in exchange of correspondence.
Since the delay is of 3 years in filing the complaint, which has not been sufficiently explained, the order of the District Forum dismissing the complaint is proper needing no inference”.
“Section 24-A of the Act, is peremptory in nature and requires the Consumer Forum to see it before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.”
As per the findings of the Hon’ble National Commission, the case ratio is squarely applicable to the present case and therefore the complaint is liable to be dismissed on the point of limitation itself. Hence we answer the point No. (1) in the negative.
[9] The Complainant has come with the case that in the month of November 2006, the Complainant observed certain debits in his credit card account which were objectionable and therefore the Complainant sent declaration form in the prescribed format signed by him. Thereafter, the Complainant satisfied with the explanation about entries Nos. 1 to 6 given by the Opponent Bank. In this complaint, the Complainant has raised the dispute for amount of late fees, interest charges, service charges, taxes which are charged by the Opponent Bank and also disputed entries. Regarding all this late fees, interest charges, service tax etc., the Complainant has not produced any documentary evidence on the record which shows that the Opponent Bank charged these amounts illegally or wrongfully. The Complainant has disputed the entries Nos. 9 and 12 about Indigo. However, the Complainant himself has admitted in para (9) of the complaint application that Mr. Vijay Kale and Mr. Vijay Patole had made transactions through his credit cards. And he requested to Respondent Bank to lodge the criminal complaint against the persons who have misappropriated his card fraudulently. Therefore this fact is admitted by the Complainant himself that his card was fraudulently used by the third person. It is specifically to be mentioned hereby in the present case that the Complainant has no grievance regarding the entries Nos. 1 to 6 and as far as the wrong entries bearing Nos. 9 to 17 are concerned, the Complainant himself has stated in the complaint application that the disputed entries are firstly reflected in Complainant’s statement of October 2006 and November 2006. He first lodged the complaint on 25/11/2006. It is to be noted in the present matter that the Opponent has replied almost all the letters sent by the Complainant. As also in the present case, the matter is also putforth before Office of The Banking Ombudsman.
[10] It is the duty of the Complainant to come with proper proof while alleging the deficiency in service on the part of the Opponent. The Complainant has to come with strict proof as regards his allegations with proper documentation. Only relying upon the affidavit of the Complainant in absence of cogent documentary evidence, we cannot hold the Opponent Bank responsible for deficiency in service on its part. Under the present facts and circumstances of the case mere statements made by the Complainant on affidavit are not required to be relied and acted upon even though the Opponent has not controverted statements made by the Complainant by filing its written say. At the relevant time, the Complainant himself was having the possession of the credit card. It is not the case of the Complainant that during the relevant time, the credit card was misplaced or stolen or lost. It is pertinent to note in the present case as per the contentions of the Complainant that the Complainant has not made any disputed payments to the Opponent in respect of alleged transactions till today. The Complainant stated in their rejoinder-affidavit as follows :-
“As above the said entries are disputed, I have not made any payment in respect of the same”.
With this sentence of the Complainant himself the inference can be drawn to the effect that neither the Complainant made any payments about disputed entries to the Opponent nor the Opponent Bank recovered any amount towards disputed entries from the Complainant till today. In the rejoinder affidavit the Complainant has also averred the following statements.
“the disputed entry for which payment has not been made is also sent to the Citi Bank for taking corrective steps”
“I have received two statements dated 11/10/2010 sent by Respondent Bank, whereby Respondent Bank has reversed the Service Charges & Interest. The above reversal of service charges and interest itself prove that Respondent Bank has admitted the mistakes”.
We have gone through the statements produced alongwith list of documents dtd.1/2/2011. In the statement, the name of Card Holder mentioned Ashok Naval and the Card Number is mentioned as 4564070083537012. As against this, the Complainant himself filed on 30/6/2011 the statements of Card bearing Nos. 4385879125982003, 4564070083537004, 4564070083537012, 5203860153104006. After perusal of these documents it appears that there are various card numbers hold by the Complainant. In this complaint, no specific complaint about any particular credit card of the Complainant is putforth before us. Relying upon the another judgment of the Hon’ble National Commission in Appeal No. 229/2005 in the matter of Sri. Rabindra Kumar Pal V/s. The Manager, Standard Chartered Bank decided on 30/3/2011 observed as follows :-
“ In absence of these as stated in forgoing, the complaint becomes devoid of any substance and proof and the burden of proof for establishing the complaint lying on the Complainant in the Forum (Appellant here) below, the complaint fails totally and abysmally.
And lacks merit because it was squarely his responsibility to adduce these to support his complaint in the Ld.Forum below”. Keeping in view the above discussions, the State Commission held that “the complaint was devoid of any merit and substance and had no rudimentary proof or any support of evidence and, therefore, was not maintainable. The impugned judgment of the Ld.Forum below reflected right adjudication of the dispute and this Commission agrees with such finding”
It is cardinal principle of law that one who makes an allegation is required to prove it beyond doubt. We are convinced that the petitioner failed to prove his allegations regarding the alleged discrepancies in the credit card statements and the Fora below had rightly dismissed his complaint. We do not find any deficiency on the part of the Op Bank to adjust the outstanding amount against the petitioner on his credit card from his account held by the Bank. Revision petition being devoid of any substance is liable for dismissal. It is dismissed accordingly, No costs
Hence relying on the aforesaid judgement of the Hon’ble National Commission, we opined that there is no deficiency in service rendered by the Opponent to the Complainant. Therefore we answered the point No.2 in negative.
[11] Keeping in view the aforesaid observations, the provisions of 24-A of Limitation Act of the Consumer Protection and the orders of the Apex Court, we found no deficiency in service on the part of the Opponent. Therefore in our opinion, the complaint is liable to be dismissed.
Hence we pass the following order :-
// ORDER//
(1) The complaint stands dismissed.
(2) Parties to bear their own cost.
(3) Certified copies of this order be furnished to the
Complainant and the Opponents free of costs.
(Smt. Sujata Patankar) (Smt. Pranali Sawant)
MEMEBR PRESIDE NT
ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,PUNE.
Place : Pune
Date : 15/12/2011