Tamil Nadu

South Chennai

77/2011

Baskar Sampath - Complainant(s)

Versus

The Hongkong and Shanghi Banking Corporation Ltd - Opp.Party(s)

S.Parthasarathy

20 Sep 2016

ORDER

   Date of Filing :   24.02.2011

                                                                      Date of Order :   20.09.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

          DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.77/2011

TUESDAY THIS  20^TH DAY OF SEPTEMBER 2016

 

Mr. Baskar Sampath,

S/o. P. Sampath,

No.5, North Mada Street,

Kovil Padagai,

Near Perumal Kovil,

Chennai 600 062.                                                      ..Complainant

 

                                         ..Vs..

 

1. The Hongkong and Shanghi,

Banking Corporation Ltd.,

Rep. by its Managing Director,

Umang, Plot CTS No.1406-A/28,

Mindspace, Malad (West),

Mumbai.

 

2. The Hongkong and Shanghi,

Banking Corporation Ltd.,

Rep. by its Manager,

No.96, Dr. Radhakrishnan Salai,

Mylapore, Chennai 600 004.                            ..Opposite parties.    

 

 

For the Complainant         :   M/s. S.Parthasarathy & others.          

For the opposite parties    :   M/s. Mothilal &  others.

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to reimburse the deducted amount of Rs.4,797.59 and to pay a sum of Rs.5,00,000/- as compensation  and to pay cost the complaint.

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he is holding two accounts with the 2^nd opposite party bank, one is old credit card account No.4384599990201799 and the other one is saving account No.032042038006.   Accordingly the said validity of credit card expired on 30.04.2009 and the opposite party have alleged that they have sent the renewal credit card to the complainant in the first week of April 2009 through courier and the same was not received by the complainant, since he was met with an accident and was hospitalized from 07.04.2009 to 15.04.2009.   Since  the said new  credit card said to have been sent by the opposite party was not received by the complainant but some unknown person had made transactions mentioned in the complaint  by misusing the said credit card to the extent of Rs.90,781/-. The complainant also intimated the same to the opposite party bank and the said credit card account was closed on 20.08.2009 and the police  complaint was also lodged regarding the same.   However complainant has received the statement of credit card account from the 2^nd opposite party bank on 29.04.2009 mentioning a sum of Rs.1,20,280.92 was in due to be paid by the complainant.  The complainant has submitted that out of the said amount a sum of Rs.30,000/- alone complainant is liable to pay to the bank, accordingly the complainant has paid the amount to the opposite party bank. Whereas the remaining balance of Rs.90,781.92/- the complainant is not liable to pay since the said amount was in relating to the misuse of   the credit card by unknown person.  But the opposite party having known the above facts have arbitrarily    adjusted a sum of Rs.4797.59 from the complainant’s savings account which is unfair on the part of the opposite party.   Further the complainant states that he was intimated to the CIBIL as defaulter as such the complainant was not able to get loan sanctioned by other bank.   As such the act of the opposite party amount to unfair trade practice and deficiency in service   which caused mental agony and suffering to the complainant.   As such the complainant has sought for claiming the refund amount of Rs.4,797.59 and also to pay a sum of Rs.5,00,000/- as compensation to the complainant.  Hence the compliant.   

Written Version of opposite parties are  in briefly as follows:

2.     The opposite parties deny all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The opposite parties submit that the complainant is the holder of HSBC Gold Credit card No.4384599990201799.  On 4.4.2009, the renewal credit card of the complainant was couriered by the opposite party to the complainant  and the same was received by the complainant.    The opposite parties are not aware of the allegations made with regard to the alleged mis-use of the credit card for purchase made on 13.4.2009 and 14.4.2009 as listed by the complainant.   However the opposite party confirms that on a complaint lodged by the complainant with regard to the same, the opposite parties blocked the credit card of the complainant to prevent further alleged mis-use.     The opposite parties further submit that Risk team of the opposite parties launched its investigations into the complaint of mis-use made by the complainant on 28.4.2009 and subsequently investigations revealed that the signature in the charge slip matched the signature of the complainant.    All relevant details regarding receipt of the credit card were furnished to the complainant despite which the complainant kept sending emails to the opposite parties.  The amount of Rs.4797/- was deducted from the complainant’s savings bank account since the outstanding charges got accrued and this is well within the opposite parties powers and is a part of the agreed terms and conditions between the complainant and the opposite party which enables the opposite parties to make such deductions and this will not in any way be against law, arbitrary or termed as an unfair trade practice.   Therefore there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A14 were marked on the side of the complainant.   Proof affidavit of opposite parties not filed and no documents was marked on  the side of the  opposite parties.  

4.      The points that arise for consideration are as follows:-

         1.       Whether the adjustment of amount of Rs.4797.92 from the saving

bank account of complainant to the balance due in the credit card account of the complainant is unfair on the part of opposite parties.?

 

2.       Whether the complainant is entitled for the relief sought for in the

          complaint. If so to what extent. ?.

 

5.    POINTS 1 and 2 :-

Perused the complaint filed by the complainant, written version filed by the opposite parties and the proof affidavit filed by complainant and documents Ex.A1 to A14 filed on the side of the complainant and considered the arguments of the both side counsels.

6.     There is no disputes between the parties that as stated by the complainant that the complainant is holding two accounts with the 2^nd opposite party bank, one is old credit card account no 4384599990201799 and the other one is saving account no 032042038006.   It is also not disputed that the said validity of credit card expire on 30.04.2009 and the complainant have alleged that they have sent the renewal credit card to the complainant in the first week of April 2009 through courier and the same was not received by the complainant, since he was met with an accident and was hospitalized from 07.04.2009 to 15.04.2009. 

7.     The complainant has raised grievance in the complaint that since  the said new  credit card said to have been sent by the opposite party was not received by the complainant but some unknown person had made transactions mentioned in the complaint  by misusing the said credit card to the extent of Rs.90,781/-.  The complainant also intimated the same to the opposite party bank and the said credit card account was closed on 20.08.2009 and the police  complaint was also lodged regarding the same.  However complainant has received the statement of credit card account from the 2^nd opposite party bank on 29.04.2009 mentioning a sum of Rs.1,20,280.92 was in due to be paid by the complainant.  The complainant has submitted that out of the said amount a sum of Rs.30,000/- alone complainant is liable to pay to the bank, accordingly the complainant has paid the amount to the opposite party bank.   Whereas the remaining balance of Rs.90,781/- the complainant is not liable to pay since the said amount was in relating to the misuse of   the credit card by unknown person.  But the opposite party having known the above facts have arbitrarily adjusted a sum of Rs.4797.59 from the complainant’s savings account which is unfair trade practice on the part of the opposite party.   Further the complainant was intimated to the CIBIL as defaulter as such the complainant was not able to get loan sanctioned by other bank applied for, which caused mental agony and suffering to the complainant and filed this complaint claiming the refund of the said amount and compensation against the opposite party.

8.     Whereas the opposite parties had resisted the complaint by filing the written version stating that since the said complaint mentioned transaction relating to a sum of Rs.90,781/- was said to have been taken place before intimation and blocking of the credit card account,  as per the terms  and conditions of the account availed by the complainant, the complainant is liable to pay the said amount to the opposite party bank  and the opposite party has got power (right of lean) to adjust the said amount due out of the savings account of the complainant.  Accordingly  a sum of Rs.4797.59 was adjusted towards the said due in the credit card account from the saving account of the complainant.

9.     Further as per the banking rules  since the said credit card account since the amount continue to be outstanding from the complainant the opposite party would be well within their rights to report the complainant as defaulter to the Credit Information Bureau of India Limited, i.e CIBIL.  Therefore there is no deficiency of service or unfair trade practice as alleged by the complainant by the opposite party and the complainant is not entitled for any relief sought for in the complaint and the complaint is liable to be dismissed.

10.    In the complaint, complainant  has categorically averred  that since the new renewal of credit card said to have been sent by the opposite party was not received by him, and was delivered to some other unknown person, by misusing the said card some unknown person have made transactions using the said card and have made purchase for Rs.90,781/- with four different transactions on 13.04.2009 and 14.09.2009, during the said period the complainant was hospitalized for the injury suffered by him in the accident, these facts are not denied by the opposite parties in their written version,  but have raised some allegations that the said new credit  card sent by courier was received by one M.Prema in the address of complainant and the signatures found in the  purchase bills relating to the said disputed transactions using the said card are also similar when compared with the signature of the complainant as such the transactions would have been carried out only by the complainant, but for these contentions there is no supportive documents and evidence on the side of opposite parties in this proceedings.  It is also pertinent to mention that no such stand was taken by the opposite parties in their communications exchanged with the complainant which were produced as the documents on the side of complainant.  Further, though the opposite parties have filed written version in this proceeding, in support of the contention made in the said written version, the opposite parties have neither filed proof affidavit nor produced any documents.  Therefore, we are of the considered view that on the available evidence on record  the opposite parties have not proved that the new renewal credit card said to have been sent by them was received by the complainant, the contention of the opposite parties that the complainant or  his relatives would have made purchase utilizing the said new credit card are not acceptable.  Further the complaint made to the police with regard to the misuse of the said card is also pending enquiry, and  not attained any finality.  In the said circumstances the said amount of Rs.90281.92 pending credit in the credit card   account of the complainant cannot be said to be liable to be paid by the complainant.  Therefore in the said circumstances though the opposite parties bank has got right of lean as per banking rules invoking the same, an adjustment made for Rs.4797.59 from the savings account of the complainant for the credit card amount due cannot be considered to be proper. 

11.    Therefore we are of the considered view that the said amount of Rs.4797.59 which has been adjusted from the savings bank account of the complainant to the amount due in the credit card account of the complainant is not proper, since the police complaint with regard to the misuse of credit card is pending enquiry without getting any finality.  The opposite parties can only initiate action for the recovery of Rs.90,781/-  pending due in the credit card account of complainant only on the basis of the result of the pending enquiry of the complaint before the police.  Therefore the opposite parties are liable to re credit the said amount of Rs.4797.59 with interest from 30.07.2009 to till the date of giving effect to the savings bank account of the complainant.  The opposite parties  should also  give suitable  information to CIBIL regarding the credit card account due of the complainant mentioning the pending police enquiry etc.  Considering the facts and circumstances of the case, we are not inclined to grant any compensation to the complainant. But the opposite parties are liable to pay a sum of Rs.5000/- as cost to the complaint. Accordingly the points 1 & 2  are answered.

        In the result,  the complaint is partly allowed. The opposite parties are jointly and severally directed to recredit a sum of Rs.4797.59 with interest at the rate of 6% p.a.  from  30.07.2009 to till the date of giving effect in the saving account of complainant and the opposite parties are directed to initiate  action in respect of the balance due in the credit card account in respect of the amount  of Rs.90,781/-  only on the basis of the result / finality in pending police enquiry of complaint about the  misuse of credit card.  Further the opposite parties are also directed to give suitable information to CIBIL in respect of the said due of the credit card account of the complainant, mentioning the particulars of pending police enquiry. The opposite parties are  also directed  to pay a sum of Rs.5000/- (Rupees five thousand only) as costs to the complainant within six weeks from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 20^th    day  of  September   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT

Complainant’s Side documents :

Ex.A1- 7.4.2009        - Copy of Discharge summary.

Ex.A2-                    -        - Copy of Credit card statement.

Ex.A3-                    -        - Copy of Police complaint.

Ex.A4- 3.7.2009        - Copy of letter from the opposite parties 1 & 2.

Ex.A5- 13.10.2009     - Copy of letter from the  Inspector of police.

Ex.A6-                    -        - Copy of email correspondence with the 2^nd opposite party.

Ex.A7- 7.10.2009      - Copy of legal notice sent by the complainant with ack. card.

Ex.A8- 20.10.2009     - Copy of letter from the CIBIL.

Ex.A9- 11.11.2009     - Copy of letter from the 2^nd opposite party.

Ex.A10- 26.11.2009   - Copy of letter from the 2^nd opposite party.

Ex.A11- 25.5.2010     - Copy of letter from the 2^nd opposite party.

Ex.A12- 8.7.2010      - Copy of letter from the 2^nd opposite party.

Ex.A13- 6.10.2010     - Copy of letter from the 2^nd opposite party.

Ex.A14- 4.2.2.011     - Copy of letter from HDFC Bank to the complainant.

Opposite parties’ side documents: - 

 

          .. Nil ..

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT