BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^TH DAY OF SEPTEMBER 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint has been filed through Power of attorney holder of the complainant under section 12 of C.P.Act 1986 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct them to rectify their mistake of trying to make the complainant liable for the fraudulent transactions that have taken place on 11.06.2018
2. To pay Rs.5,00,000/- as damages for the mental agony, stress, humiliation and lastly loss of reputation in society, that the complainant had to go through by loitering around to fix the damages himself; due to the negligence of the OPs and their Deficiency of service.
3. To pay Rs.50,000/- towards the legal expenses.
4. To grant such other reliefs.

2. The brief case of the complaint is as follows:

The complainant being the credit card holder bearing No………..7247 issued by OPs was using the same from 2016 to 2018.  He used to receive OTP in case of use of credit card.

3. It is further case of the complainant that complainant was shocked that on 11.06.2018 12 swiped transaction were taken when he was travelling from Paris to Chennai, in fact the complainant last the above credit card and same was intimated to the customer care of the OPs.  The limit of the credit card was Rs.2,06,000/- but the credit was used for alleged 12 transactions to the tune of Rs.2,52,747/-.  Despite request made by the complainant, the OPs without blocking the card allowed the stranger to use the credit card.  This act of the OPs amounts to deficiency of service.  Inspite of receipt of legal notice of the complainant dated 28.09.2019, OPs failed to rectify their mistakes.  But OP2 has issued untenable reply.  Hence this complaint.

4. In response to the notice, OPs appeared and filed version.  The credit card bearing No.4862698907439582 was issued to the complainant and same was blocked on 11.06.2018 at the instruction of the complainant.  Credit card has number with account number. On blocking the card, a replaced card was issued.  The replaced card issued was bearing No.4862698910317247 with a credit card limit of Rs.2,06,000/-.  There is no fault on the OPs.  In fact the credit card No.4862698910317247 was used on 11.06.2018 for 12 transactions worth Rs.2,52,812.72.  The request of the customer to block the card was received on 11.06.2018 at 2.39 pm and on the same day, at 2.41 pm the credit card was blocked.

5. OP also contends that OP while had no control of usage of credit card. In case of loss/theft/misuse of the card the credit card holder should reported to OP in writing or by calling HCBC phone banking office, credit card holder will not be held liable for any transaction made on the credit card after reporting the loss/theft/misuse of HCBC and theft or loss must be confirmed to the HCBC in writing and copy of the acknowledgment of FIR must be sent.  In case credit card holder recovered the credit card must not use the same and destroy the same.  They request to dismiss the complaint.

6. The complainant files affidavit evidence and relies on 12 documents.  OPs have filed affidavit evidence of Branch head and rely on 7 documents. Heard the arguments and perused the records.
7. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

8. Our answer to the above points are as under:

       Point No.1 :- Affirmative

      Point No.2 :- Affirmative in part

       Point No.3:- As per the final order.            

                                REASONS

9. Point No.1 and 2: Before touching the controversies between the parties we would like to refer the documents produced by both the parties.  Both the parties have reiterated the respective contention in their affidavit evidence.  Document No.1 of the complainant is the credit card statement in respect of primary card No.4862698910317247.  It indicates that on 11.06.2018 the credit card was swiped for 12 times.  It is also admitted by both the parties on 11.06.2018 the credit card was swiped for 12 times between 12.38 pm to 2.13 pm.  Whereas document No.2 is the set of emails dated 11.06.2018 between 12.39 pm to 5.03 pm issued by the OPs indicate that it was informed to the complainant that the credit card ending with …..9582, number was swiped for transaction on 11.02.2018, but the credit card statement indicates a different primary card No.4862698910317247.   It is admitted by the OP that the loss of card was intimated by the complainant and new credit card was issued.  Document produced at page No.28 by the complainant, indicates that no response to the request of the complainant blocking his account OPs issued email dated 11.06.2018 at 1.15 pm stating that OP will respond to the complainant within two working days.  It is relevant to note that the OPs have not referred email or message of the complainant dated 11.06.2018 with timing.  When OP had sent an email on 11.06.2018 at 1.15 pm, the complainant, must have intimated either loss or theft of his credit card to the complainant much prior to 1.15 pm.

10. OP has clearly admitted in para 4 of the version that the credit card was blocked on 11.06.2018.  Even though OPs contend that a request to block credit card was received on 11.06.2018 at 2.39 pm but credit card was blocked on the same day at 2.41 pm.  It is true that OP has referred these timings in annexure C6 admitting the intimation of loss or credit card on 11.06.2018.  If the complainant reported the loss of credit card on 11.06.2018 at 2.39 pm, we fail to understand what made the OPs issue a email dated 11.06.2018 at 1.15 pm about the request of the complainant for blocking the card.  It means the OPs must have received the intimation of blocking the credit card from the complainant much prior to 1.15 pm on 11.06.2018.  The OP has not produced the document showing a date and timings of the request of the complainant for blocking the credit card.  The non production of such document is sufficient to draw an adverse inference against the OPs.  The OPs have suppressed this material intimation.

11. Document No.A-3 is service acknowledgement form dated 17.01.2019.  It does not help the complainant in proving giving intimation prior to the transaction.  Document No.C4 is the letter of OP dated 30.08.2018 to the complainant for payment of over dues amount.  The other documents annexed at C4 pertaining to the another credit card which is not material.

12. This complaint is preceded by the legal notice of the compliant dated 20^th September 2019 wherein he has stated that he had intimated the banker to block his credit card and moreover he is not set the OTP.   The OPs have not produced any document to show that the complainant shared his OTP in respect of 12 swiping transaction with the third party.  An adverse inference can be drawn against the OP for non production of records of OTP.  In response to legal notice, OP2 issued reply as per Ex.C9 referring the 12 transactions for Rs.2,52,812.72.

13. It is relevant to note that the credit card limit was Rs.2,06,000/-.  Under such circumstances on the same day how it was possible to use the credit card to the tune of Rs.2,52,812.72.  OP has not furnished any explanation for this discrepancy.  Ex.C10 is the boarding pass of the complainant dated 11^th June from Dubai.

14. Even though OPs branch head reiterated the facts pleaded in the version, but OPs rely on 7 documents.  Document No.1 is the application for visa platinum credit card dated 28.03.2016.   The complainant admits that he had a credit card from 2016 to 2018.  Document No.2 is in respect of credit card ending No.9582.  It further indicates that credit card was lost at Paris and fraudulent transaction was happened on 11.06.2018.  The contents of Annexure B3 are not in dispute.  The credit card limits was to be decided by the bank, when the OP bank decided credit card limit of complainant was Rs.2,06,000/-, but how the credit card was used for more than the credit card limit.  In case of loss/theft/misuse of the card it is the date of the credit card holder like complainant to intimate the same to the banker.  Accordingly without any further delay the complainant informed the banker.  Ex.B4 is the customer transaction dispute form submitted by the complainant on 26.06.2018.  Ex.B5 is the details of swiping the card on 11.06.2018.  The swiping details have been mentioned in Ex.B6.  The similar in B6 and B7.

15. It is relevant to note that the complainant not only intimated the OP bank immediately about loss and to block of his credit card, but he has also filed a complaint with the jurisdictional police about loss of the credit card involved in this case.  The complainant has produced acknowledgement issued by the police on 13.06.2018 as per Ex.C5.  The complainant has taken all pecuniary measure intimating the OP bank for blocking as credit card immediately after loss and set the criminal law into motion on 13.06.2018 after arrival to India. The OP failed to block the card immediately after receipt of intimation and failed to produce OTP details in respect of 12 transactions.  Therefore, complainant is right in saying that there is deficiency of service on the part of the OPs.
16. The complainant requested for direction to the OPs to rectify the mistake with regard to fraudulent transaction dated 11.06.2018 and sought for Rs.5,00,000/- as compensation with Rs.50,000/- as legal expenses.  The complainant is entitled to direction against the OPs to rectify their mistake with regard to 12 fraudulent transaction dated 11.06.2018 mentioned in the complaint.  The claim of compensation of Rs.5,00,000/- and R.50,000/- towards cost of litigation is exorbitant.  The complainant has suffered mental agony and inconvenience due to the act of the OPs.  Therefore, Rs.1,00,000/- compensation requires to be awarded with litigation cost of Rs.15,000/-.  Accordingly we answer point NO.1 and 2.

17. POINT NO.3: In view of the discussion on Point No.1 and 2, the complaint requires to be allowed in part.  OPs are liable to rectify the mistakes committed by them with regard to fraudulent transaction dated 11.06.2018 referred in this complaint.  OPs are liable to pay compensation of R.1,00,000/- with Rs.15,000/- as cot of litigation. We proceed to pass the following;

O R D E R

1. Complaint is allowed in part.
2. OPs shall rectify their mistake with regard to the 12 transactions dated 11.06.2018 involved in this complaint and pay Rs.1,00,000/- compensation with Rs.15,000/- as cost of the litigation to the complainant.
3. OPs shall comply this direction within 60 days from this date.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

HAV*