Punjab

Fatehgarh Sahib

CC/36/2018

Randeep Kumar - Complainant(s)

Versus

The Manager HDFC Bank - Opp.Party(s)

Sh. Rajesh Verma

29 Oct 2019

ORDER

District Consumer Dispute Redressal Forum, Fatehgarh Sahib

                                                                             Consumer Complaint No. : CC/36/2018

                                                                             Date of Institution: 10/08/2018

                                                                             Date of Decision: 29/10/2019

Randeep Kumar, aged 29 years, S/o Sh. Rattan Chand, Resident of House No. 356, Sector 25-B, Dashmesh Colony, Street No.5, Mandi Gobindgarh, Punjab, PIN – 147301.

                                                                                                      ….Complainant

                                                                         Versus

1. The Manager, HDFC Bank Credit Cards, P.O. Box 8654, Thirvanmiyur, H.O., Chennai, 600041.

2. The Manager, Grievance Cell, HDFC Credit Cards Division, 8, Lattice Bridge Road, Thiruvanrniyur, Chennai, 600041.

3. The Manager, HDFC Bank Limited, Hukamchand Building, Main Post Office Road, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab, 147301.

4. Flipkart Internet Private Limited, Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala, Bengaluru 560034, Karnataka.

…..Opposite Party(s)

Complaint under Section 12, of the Consumers Protection Act, 1986.

Quorum

Sh. Amrinder Singh Sidhu, President.

Sh. Inderjit, Member.

Present: Sh. Rajesh Verma, Counsel for Complainnant.

Sh. Sanjay Khanna, Counsel for O.P. No. 1, 2 & 3

Sh. N.S. Toor, Counsel for O.P. No. 4

ORDER

By Amrinder Singh Sidhu, President

 

The complainant filed the present complaint pleading that O.P. No. 1 and 2 are branches/grievance Cell of HDFC Bank and O.P. No. 3 is the branch of HDFC Bank where the complainant has his saving account, O.P.No.4 is a company with whom false transaction of Rs.56,209/- has been affected from the complainant’s Credit Card account on 11 Feb, 2015 at M/s Flipkart Internet and some mobile phone has been purchased vide this transaction. The brief facts of this complaint are that complainant is holding Credit Card No. 4854980602484398 of visa Regalia Credit Card category and having a Saving Account No. 03421000179989 with Opposite Party No.3. The complainant was residing in Tanzania, East Africa and he had lost his wallet on 09.02.2015 at Arusha, Tanzania, East Africa. The complainant lost his original legal residency Identity Card of Tanzania, Tanzanian Shilling (Tanzanian Currency) approximately 65000, Bank/Credit Card of HDFC Bank, Driving License of India which were in the wallet at the time of loss. The complainant on the very day made many cell calls to the Opposite Party’s consumer care number several times from his international phone number but no satisfactory response was received from the call centre. These phone calls were charged with thousands of rupees as the complainant was calling from abroad but despite that complainant’s grievance was not resolved. On next day, the complainant sent email dt. 10.02.2015 to the Opposite Parties at their email address that he has lost his wallet along with Credit Card and other documens and further he requested the Opposite Parties to block his Credit Card immediately in order to prevent any false/fraudulent transactions. The Opposite Parties acknowledged the receipt of complainant. He again sent email on 11.02.2015 to O.Ps to block his Credit Card immediately because no information regarding blocking of his Credit Card was provided by the Opposite Parties to him. However, Opposite Parties admitted and acknowledged that emails have been received by them. The Opposite Parties informed the complainant that his Credit Card was blocked w.e.f. 12.02.2015. The complainant also made complaint/Report to the Police Authorities of Police Station at Arusha,Tanzania, East Africa on 13.02.2015 which is placed on file at page no. 63 and the same was sent to Opposite Parties. The complainant vide email dt. 13.02.2015 asked the Opposite Parties to advise him about the method of depositing the bill of that month. Further, complainant vide email dt. 15.02.2015 also sent request to apply for new Credit Card along with requisite documents. The complainant vide email dt. 18.02.2015 asked the Opposite Parties to provide him Credit Card statement from 05.02.2015 till that date in order to know about the status of his Credit Card transactions but the Opposite Parties refused vide email dt. 23.02.2015 on the ground that “the statement date is fifth of every month and the payment due date falls after 20 days from the date of statement. Hence, transactions done using Credit Card after fifth of every month will be billed in the subsequent statement. We regret that for security reasons we are unable to disclose the unbilled transactions detailed through emails”. The complainant also sent the Card holder dispute form to the Opposite Parties. The complainant, in March, 2015 came to know from the bill sent by the Opposite Parties that one false transaction of Rs.56,209/- has been affected from his Credit Card on 11.02.2015 at M/s Flipkart Internet and some mobile phone was purchased vide that transaction. The complainant vide his email dt. 07.03.2015 informed and requested the Opposite Parties that this transaction has not been done by him as he had lost his Credit Card before the date of false transaction and the same had already been brought to the notice of the Opposite Parties immediately. The Opposite Parties vide their email dt. 09.03.2015 informed complainant that his Credit Card was blocked on 12.02.2015 and “zero liability clauses cover all the fraudulent transactions that are incurred on his card from time of reporting loss of card to the Bank”. The complainant has also cleared all his dues except the disputed amount of Rs. 56,209/- for the month of Feb.2015. Thereafter, complainant regularly requested the O.P.No.2 to redress his grievance but in vain. In the month of April, 2015, the complainant came to know that Credit Card statement for the month of April, 2015 sent by Opposite Parties carries late charges and finance charges etc. on the disputed transactions. The Opposite Parties imposed finance charges, late fees and GST on the disputed transactions which reached to the tune of Rs.3,12,652/- till July, 2018. From the previous record of the Credit Card of the complainant, it is very clear that the complainant deposited all the genuine charges due towards him but as this transaction of Rs. 56,209/- was not made by him and he had informed immediately about the loss of Credit Card to the Opposite Party so he was not liable to pay the same. The complainant sent legal notice on 20^th of Jan. 2018 to the Opposite Parties though registered post but no response was given by the Opposite Parties to the complainant. At last, the complainant prayed that Opposite Parties may be directed to withdraw the disputed transactions of Rs. 56,209/- along with all the charges such as late fee, penal charges, GST etc. imposed on it and also compensate the complainant to the tune of Rs.10,000/- for harassment suffered by him due to deficiency in service on the part of the Opposite Parties.

After the notice served upon Opposite Parties, Opposite Parties appeared through the counsels before this Forum and filed their written version. The O.P. No.1, 2 and 3 filed joined written version before this Forum taking legal objections that complainant is not a consumer as he has not purchased anything from the Opposite Parties rather he has obtained Credit Card as it is evident from the pleadings of the complaint; This Forum has no territorial jurisdiction as the transaction took place at Arusha, Tanzania, East Africa; the complainant has not come to the Court with clean hands; the complaint is time barred as transaction took place in Feb, 2015 and complaint has been filed in August 2018; the complaint is false, frivolous and vexatious and same is liable to be rejected with cost. Opposite Parties No.1 to 3 also denied all the allegations on Merit. The Opposite Parties denied that transaction of Rs.56,209/- was false as the Credit Card holder received one time password on the registered mobile number. The disputed transaction was secured and OTP was generated and sent to registered mobile number of the complainant. However, it is admitted by the Opposite Parties that email dt. 10.02.2015 was received and it was replied by HDFC bank on 10.02.2015 itself and requested the complainant to send the information of the Credit Card number to the HDFC Bank. The complainant had sent the Credit Card Number to HDFC Bank vide email on 11.02.2015 and it was replied on 11.02.2015 itself. On 12.02.2015 Credit Card was blocked in response to email dt. 11.02.2015 and it was intimated to the complainant through email dt.09.03.2015 that Credit Card holder would be responsible for the earlier transactions and complainant was required to send copy of FIR/DDR for the loss of Credit Card within 3 days from 12.02.2015 but he failed to provide the same. The complainant had applied for issuance of new Credit Card vide email dt.15.02.2015. Opposite Parties denied that the complainant send any police report dt.15.02.2015 to the Opposite Parties. The Opposite Parties denied any deficiency on their part and prayed to dismiss the complaint with special cost.

The O.P.No.4 filed separate reply denying all the allegations of the complainant stating that the O.P.No.4 is an Online Web Portal namely ‘Flipkart.com’ (hereinafter “portal”) and is engaged in the business of online market place providing platform/technology/ or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods. Thus the “portal” acts as an intermediary as defined under Section 2 (1)(w) of Information and Technology Act, 2000. Section 79 of the IT Act states that intermediary shall not be liable for any third party information, data or communication link made available or hosted by it. Thus, O.P.No.4, being intermediary under Section 79 cannot be held liable for the acts of the third party on website. On Merits, O.P. No. 4 denied all the allegations made against them by the complainant and prayed for the dismissal of complaint with cost.

The complainant filed rejoinder denying all the objections filed by the Opposite Parties in their written versions and relied upon the allegations made by the complainant in the complaint and again prayed for the acceptance of the complaint.

We have heard the arguments of the Ld. Counsels for the parties and also gone through the record of the file. It is observed that the complainant is the consumer of Opposite Parties No. 1 to 3 as the complainant is availing services of banking facilities from the Opposite Parties, hence, O.Ps are Service Provider as per Section 2(1)(o) of the Consumer Protection Act, 1986 and complianant is consumer. The present Forum has territorial jurisdiction as the branch office of the Opposite Parties was situated within the revenue estate of the jurisdiction of this District Forum. Further, this Forum has pecuniary jurisdiction as the claim claimed by the complainant is less than Rs. one lakh. The Opposite Parties has issued Credit Card No. 4854980602484398 of Visa Regalia Credit Card to the complainant and complainant has a saving account no. 03421000179989 with the bank i.e. O.P. No.3. The complainant at the time, when the cause of action arose then he was residing in Tanzania, East Africa and he lost his wallet on 09.02.2015 in Arusha, Tanzania, East Africa which was containing original legal residence identity card, shillings (Tanzanian Currency) approximately 65000, bank/Credit Card of HDFC Bank and driving license of India in that wallet. The complainant on that very day i.e. 09.02.2015 called the Opposite Parties on Consumer Care number several times from his international phone number to address his grievance but no satisfactory answer was given by the Opposite Parties. Then, on the very next day, the complainant sent email dt.10.02.2015 which is Ex. C-2 to the Opposite Parties informing that his wallet along with Credit Card was lost and further requested Opposite Parties to block his Credit Card in order to prevent any fraudulent/fake/false transactions. The emails sent by the complainant were responded immediately by the Opposite Parties on the very same day, acknowledging the receipt of emails of complainant by the Opposite Parties. The complainant again reminded Opposite Parties through email to block his Credit Card immediately on 11.02.2015 which is Ex. C-3 but Opposite Parties did not give any information to the complainant whether his Credit Card was blocked or not? The Opposite Parties vide email dt. 12.02.2015 informed the complainant that his Credit Card was blocked on 12.02.2015. Further, the complainant made complaint/Report dt. 13.02.2015 to the Police Authorities of the Police Station Arusha, Tanzania, East Africa which was placed on file at page no. 63 and the copy of the same was also sent to the Opposite Parties. The complainant vide email dt.13.02.2015 requested the Opposite Parties to advise him about the method of depositing the bill of the current month of the Credit Card. The complainant vide email dt. 15.02.2015 also requested to the Opposite Parties for applying the new Credit Card along with requisite documents which is Ex. C-5. The complainant vide email dt. 18.02.2015 which is Ex. C-6, asked for Credit Card statement from 05.02.2015 till that date in order to know the status of Credit Card transactions but the same was refused vide Opposite Parties email dt. 23.02.2015 which is Ex. C-7 stating therein “On the ground that the statement date is fifth of every month and the payment due date falls after 20 days from the date of statement. Hence, the transaction done using your Credit Card after 5^th of every month will be billed in the subsequent statement. We regret that for security reasons we are unable to disclose the unbilled transactions details through email.”

All these emails prove that complainant had informed the Opposite Parties well in time i.e. on 10.02.2015 vide email which is Ex. C-2, informed the Opposite Parties that his wallet had been lost/theft in which there was Credit Card issued by the Opposite Parties along with some other articles and requested to the Opposite Parties to block the Credit Card in order to avoid any fraudulent/fake/false transactions from this Credit Card. He further reminded the Opposite Parties on the next day vide email dt. 11.02.2015 for blocking Credit Card. The complainant further sent a copy of complaint/report which he filed with Police Authorities at Police Station Arusha, Tanzania, East Africa vide email dt. 13.02.2015. Hence, he has discharged his duties by way of informing the Opposite Parties on 10.02.2015 and sending them copy of complaint/report made to the Police Authorities. However, complainant in the first week of March, 2015 came to know from the bill sent by Opposite Parties that some fraudulent/fake/false transactions of Rs. 56,209/- has been affected from his Credit Card on 11.02.2015 at M/s Flipkart Internet and some mobile phone had been purchased vide this transactions. The complainant vide email dt.07.03.2015 informed that this transactions has not been done by him as he had lost his Credit Card prior to the date of this transaction and the same was brought into the notice of the Opposite Parties well in time. The copy of email dt. 10.02.2015 which is Ex. C-1 proves the information provided by complainant to the Opposite Parties about the fraudulent/false transaction. The Opposite Parties informed the complainant vide email dt. 09.03.2015 that Credit Card was blocked on 12.02.2015 stating that “zero liability clause covers all the fraudulent transactions that are incurred on his Credit Card from the time of reporting loss of the Credit Card to the bank”. Further the complainant cleared all his dues except the disputed amount of Rs. 56,209/- for the month of Feb, 2015 and thereafter, complainant regularly requested the Opposite Parties to redress his grievance but Opposite Parties keep on lingering the matter and keep on imposing different kinds of charges in the bills. The complainant received email dt. 08.02.2016 from the Opposite Parties wherein Opposite Parties imposed total outstanding amount of Rs.99,813/- as per statement dt.15.02.2016. The Opposite Parties keep on imposing late fee charges and finance charges etc. on the disputed amount which come to Rs. 3,12,652/- till July, 2018. The complainant sent a legal notice to the Opposite Parties dt. 20.01.2018 through registered post to Opposite Parties but in vain. Clause 8 (B) of Terms and conditions of HDFC Bank is mentioned as under:-

“ 8. Loss/theft/misuse of Card

B. The Bank is not liable or responsible for any transaction

incurred on the card account prior to time of reporting of the

loss of the card and the Card member will be wholly liable for

the same. Card swipe transactions may get processed by

merchants without PIN/additional authentication, when it is

initiated on merchants located outside India as it may not be

a mandate in those countries. Card-member is wholly liable for

all transactions prior to reporting of loss of card. After the

receipt of proper notification of the loss by the bank, the

Card-member’s subsequent liability is zero. In addition to

notifying HDFC Bank about the loss or theft of the Card,

the Card-member must report any loss or theft of the

Credit Card to the police, lodge an FIR and provide

acknowledged copy of the police complaint.”

In the present case, the complainant had informed the Opposite Parties well in time i.e. on 10.02.2015 which is proved by him vide Ex C-1. It is observed that the fraudulent/false transaction incurred not prior to the time of reporting of loss of card by the complainant to O.P. No.3 but after the date of information. Further, it is observed that complainant had informed the Opposite Parties regarding the complaint which he had made to the police-which is placed on file at page no. 63. Hence, the complainant has complied with both the conditions laid down in the terms and conditions by the Opposite Parties. It is further observed that complainant has acted in time and there is no carelessness on his part. However, the Opposite Parties remained deficient in acting in time and failed to block the Credit Card of the complainant in time. Had Opposite Parties blocked the Credit Card of the complainant in time then the occasion of fraudulent/false transaction would have not arisen. Hence, it is deficiency on the part of the Opposite Parties No.1 to 3, for which they cannot impose charges upon the complainant. In view of the above said discussions, the Opposite Parties No. 1 to 3 are directed to withdraw disputed transactions of Rs.56,209/- along with all the financial charges, interests, penalties, surcharges etc. imposed upon it. The O.Ps. No. 1 to 3 are further directed to pay lump-sum compensation of Rs.6000/- to be shared in equal shares by the O.Ps.No. 1 to 3, to the complainant for causing him mental agony and physical harassment. However, O.P. No.4 is not liable because it is just an “Online Web Portal” which provides platform between buyers and sellers and under Section 79 of Information Technology Act, 2000 it is not liable for the acts and omissions of the third parties. Therefore, complaint against O.P. No. 1 to 3 is allowed and it is dismissed qua O.P. No.4. Copy of order be sent to the parties free of cost and there after the file be consigned to record room.

The complaint could not be decided within prescribed time period because the post of President remained vacant in this Forum since 15^th of September, 2018 and the undersigned President is working on Additional Duty only for two days a week.

Pronounced in open Forum.

 

 

 

(Amrinder Singh Sidhu)

                                                                                   President

 

 

 

                                                                                (Inderjit)

                                                                                           Member