Complaint filed on: 20-01-2012
Disposed on: 19-07-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.136/2012
DATED THIS THE 19th JULY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
V.Usha, Flat no.2,
Aum Residency, 9/2, 17th Cross,
Near Margosa Road,
Malleshwaram,
Bangalore – 55,
Karnataka
V/s
Opposite parties: -
1. The Manager,
ICICI Bank (Credit Card Division)
ICICI Phone Banking Centre,
ICICI Bank Towers,
7th Floor, Survey no.115/27,
Plot no.12, Nanakramguda,
Serilingampally,
Hyderabad-32
2. The Manage,
ICICI Bank Ltd,
Kumara Park Branch,
#2, Kaushal Emerald,
Kumar Park,
Bangalore - 01
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, praying to pass an order, directing the OPs to exempt her from paying the amount of Rs.34,490=00 used by misusing ICICI credit card including interest amounting to Rs.41,764.26, and to pay her damages of Rs.50,000=00.
2. The brief facts of the complaint can be stated as under.
The complainant has lost her ICICI bank credit card alongwith ATM card during her journey from Bangalore to Delhi on 4-7-2011, and her lost credit card numbers are 4023684580145007 and 4477469897509009, and she has filed a complaint for blocking the card and got the message on her mobile for swiping the debit card and the complainant was able to block her credit card at 9.14 pm on the same day. In the mean time, eight transactions have been made fraudulently by using her stolen credit card for an amount of Rs.34,490=00. None of the shop keepers by name Nitesh, Mehta and Ashok had verified/checked the signatures on the charger slips, even though, the name of the complainant is printed and specimen signature was present on the backside of the card. It is clear that after blocking the card if any transaction takes place, bank will be held responsible. If the bank analyzes the case in this angle only, then the misuse/frauds will multiply and the fraudsters and the shopkeepers can work hand in hand and loot the money. While issuing the credit card, clear instructions were given that, the card is invalid without the signature of the card holder on the back side of the card. It implies that the merchants in whose shop the transactions were taken place was bound to verify the signature on the card. The merchant can catch hold of the person and stop using the card with fraudulent signature. In such cases, the shop keeper is only held responsible, and also the EDC machine of AXIS bank and HDFC banks were utilized. The complainant requested the ICICI credit card division through ICICI bank mail on 14-7-2011 and sent written request vide her letter dated 18/20-7-2011. After receipt of the charge slips from the bank after a period of three months through mail on 27-10-2011, the complainant was surprised and shocked to find the signatures on the charge slips which were not at all matching with the signature and even name of the complainant on the card and on the face of the charge slips, but the signatures are only having the name of Nithesh, Mehta and Ashok and in one charge slip sign of Nitesh with mobile number was there. On receipt of the charge slips, the complainant wrote to ICICI credit card division vide letter dated 31-10-2011, stating that the above reasons of signature mismatch and request them to withdraw the claim and refund of charges paid for charge slips and also informed them that she would lodge the complaint with banking ombudsman and claim the damages. Though, it is true that, the card holder is responsible for the safe custody of the card but when the card is being misused by somebody and the shop keepers accepting the charge slip without even checking the signature is it reasonable to hold the card holder responsible for the fraudulent transactions instead of making the shop keeper responsible for his careless attitude, if the shop keepers are not responsible for checking the signature of the card holder then why should the bank insist on the card holder to put his signature on the card without which the card is invalid. The bank cannot say that it is not responsible for the transactions done before blocking of the card however fraudulent it may be. While disposing the complaint of the complainant registered with ICICI bank they have stated that the signature on the charge slip is not a criteria to determine the ownership of the card and the card holders are bound by the terms and conditions agreed upon at the time of taking the credit card from the bank. The complainant is not convinced and not satisfied with the replies received from the bank dated 15-11-2011, 21-1-2011, 24-11-2011 and 7-1-2012, rejecting her dispute and exercised the right of banker’s lien over her ICICI bank savings account and an amount of Rs.4773.57 has been charged towards credit card payment. So the complainant prayed to direct the ICICI bank credit card division not to insist on payment for the fraudulent purchases made on her stolen card, due to deficiency in the service of the OP. Hence the present complaint is filed.
3. After service of the notice, the Ops no.1 and 2 appeared through their counsel and filed objections, contending interalia as under:
The complaint of the complainant is not maintainable. The complainant has availed credit card facility from the OP no.1 and she required to swipe her credit card at any merchant establishment and attest his/her signature on the receipt of which should then be verified by the merchant. The complainant alleges that the merchants have failed to verify her signature on the charge slips and also claim the merchants are responsible for the same, that being the case the merchants who have honoured the transactions should have been arrayed as necessary parties. All the alleged fraudulent transactions have taken place prior to the complainant lodging the complaint with the Ops. The complainant admits the fact that the merchants have acted negligently however the Ops are made liable without any fault. The complainant is well aware of the applicable terms and conditions of the credit card facility, as provided in clause (f) of most important terms and conditions applicable to credit card “in case of loss/theft/misuse of the card, it must be reported immediately to the ICICI bank customer care. The bank shall there upon suspend the card, the card member is advised to file an FIR with the local police station. The card member shall be primarily responsible for the security of the card including theft and for the transaction using the card”. Hence on this ground alone the complaint against the Ops is liable to be dismissed. The complaint should not be allowed as it would set wrong precedent wherein bank would be held liable for negligence of the complainant who is primarily responsible for the security of the card, that there is no deficiency in service of the OP bank and immediately blocked the same after receiving the intimation of the loss of card. The complainant approached and sought for a credit card, the same was sanctioned with the belief and assurance that any charge incurred by virtue of the usage of the credit card shall become due and payable and the same shall be paid on receipt of the monthly statement of account. The credit card number maintained by the complainant is 4023684580145007 and 4477469897509009. Pursuant to the said receipt and usage of the credit card, the complainant had undertaken to make the payment towards outstanding on credit card within the period specified therein. However, contrary to the terms and conditions, the complainant defaulted in payment of outstanding amount on the credit card. The complainant had defaulted in the payment of the outstanding on her credit card in spite of several follow ups, the complainant claims that due to loss of card and misuse of the same she is not liable to pay the outstanding amount. However, the OP have informed the complainant through letter dated 21-11-2011 that she is not liable to pay only for the transactions which happen post lodging of the complaint to the Ops, the Ops cannot be made liable for the negligence of the complainant who is primarily responsible for the security of the card. Instead of making payment of the due amount, the complainant kept on blaming the Ops. Admittedly, the misuse of the credit card of the complainant had been made by the person who is unknown to the Ops or to the complainant. The 2nd OP had intimated to the complainant several times regarding the outstanding amount. The action taken by the Ops is one such measure provided by the law of contracts, specifically explained to the complainant and also provided in agreement that the monthly bill will be given to the customer and they have to make the payment within the due date and in default, the same will be debited from the bank account provided by the complainant at the time of obtaining credit card facility. Admittedly the complainant refused to pay the due amount to the first OP; as such the Ops were constrained to lien mark the amount available from the bank account provided by the complainant. Hence, there is no deficiency in service on the part of the Ops in debiting the outstanding amount. With regard to the mismatch of the signature, it is submitted that, if any product had been purchased by the customer or the credit card holder like the complainant using the credit card in any stores, a bill will be generated on swiping of the card. The bank who had issued the credit card to the customer will credit the amount to the account of the merchant based on the transaction identity and the bank will collect the said amount from the customer. As the transaction took place through electronic instrument the amount will be credited to the account of the merchants on the movement he/she swipes the card using the code number provided to him in the machine. In this instance case the utilization/use of credit card is not disputed by the complainant. Hence the question of reversal of billed amount will not arise on the ground of mismatch of signature, further it is the duty of the merchant to ensure proper identity of the card holder. The Ops bank has cleared/paid the amount to the merchant pursuant to the utilization of the credit card, such being a case this Ops is legally entitled to recover the said amount with applicable interest as agreed from the complainant. If at all there is any dispute between the merchant and complainant on the transaction, the complainant has to recovery the said transaction amount from them. The complainant to overcome from her dereliction had blamed the Ops for not verifying the signature on the merchant copy before crediting the amount. Any averments of contentions of the complainant not specifically denied should not treat as admitted. Hence it is prayed to dismiss the complaint of the complainant with cost in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the merchants in whose shop the transactions were taken place was bound to verify the signature on the card with that on the charge slip, and merchant can catch hold of the person and stop using the card with fraudulent signature, and there is deficiency in service on the part of the Ops?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced 11 documents as Annexure-1 to 11. On the other hand, one Kavitha Shetty, Legal Manager of the Ops has filed her affidavit, and produced two documents as Annexure-R1 and R2. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties in between lines.
7. One V.Usha, who being the complainant has stated in her affidavit filed by way of evidence that, she has lost her ICICI bank credit card alongwith ATM card during her journey from Bangalore to Delhi on 4-7-2011, and she has filed a complaint for blocking the card and she got the message on her mobile for swiping the debit card of ICICI bank, and she was able to block her credit card at 9.14 pm on the same day. In the mean time, eight transactions totaling to Rs.34,490=00 has been fraudulently made by using her stolen credit card by the stranger, and she made complaint to OP ICICI credit card division, Phone banking centre, Hyderabad through phone and through email on 14-7-2011 requesting to verify the charge slips with signatures and sent written request, and the OP sent reply through email dated 16-7-2011 informing her registered service request number as SR183235507. On receipt of the charge slips from the ICICI bank after a period of three months through mail on 27-10-2011, she was surprised and shocked to find the signatures on the charge slips which were not at all matching with the signature and even her name on the card, but the signatures are only having the name of Nitesh, Mehta, and Ashok one is not clear and in one charge slip sign of Nitesh with mobile no.09896585986 was there, and on receipt of the charges slips she wrote to ICICI credit card division on 31-10-2011, stating the above reasons of mismatching of signatures and requested them to withdraw the claim and refund of charges paid and the complaint was lodged with banking ombudsman and for that she has paid the requite charges of Rs.772.10. None of the above shop keepers had verified/checked the signatures on the charge slips even though the name Usha.V is printed and speciman signature was very much appearing on the backside of the credit card. The merchant in whose shop the transaction took place was bound to verify the signature on the card with that on the charge slip. If the merchant had done this one he would have cought hold of the person with fraudulent signature. In such cases, the shop keeper is only held responsible, and while releasing payment to the merchants by the bankers this would have been verified by the bank, the bank cannot say that the bank is not responsible for the transaction done before blocking of the card however fraudulent it may be, and an amount of Rs.4,773.57 has already been charged towards her credit card payment, she prays to pass an order directing the ICICI Bank credit card division not to insist on payment for the fraudulent purchases made on her stolen card, due to deficiency in their services of the OP. So the present complainant is filed requesting to exempt the complainant from paying the amount of Rs.34,490=00, release the lien of holding her ICICI SB account, for reversal of Rs.4,773.57 debited from her SB account, for retrieval of chargers of Rs.772.10 paid towards charge slips, for removal of her name from the records of CIBIL and to pay damages of Rs.50,000=00. So her complaint be allowed and pass an order as prayed in the complaint.
8. On a careful reading of the complaint and evidence of the complainant as mentioned above, it is made crystal clear that, the complainant has tendered her evidence in conformity with the averments of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of the complainant is corroborated by documentary evidence or not. Annexure-1 is the copies of charge slips and they are eight in numbers, and these charge slips go to reveal that the credit card which was stolen has been swiped by the 3rd person, and total amount of Rs.34,490=00 has been withdrawn. Annexure-2 is the copy of credit card statement and the complainant’s email complaint dated 14-7-2011. Annexure-3 is the copy of letter of the complainant given to the accounts manager, ICICI bank Credit card division, stating that she lost the credit card, she came to know that the card has been swiped eight times totaling to Rs.34,490=00 and she gave a complaint on 13-7-2011 and requested to supply the charge slips and adjust the above amount under the insurance coverage in respect of her lost card. Annexure-4 is the copy of email letter from the ICICI Bank dated 18-7-2011 registering the complaint of the complainant. Annexure-5 is the copy of letter of the complainant dated 10-10-2011, stating mismatching of the signatures on charge slips and requested to withdraw all the charges. Annexure-6 is the copy of the bank statement of SB account of the complainant wherein the amount of Rs.772.10 shows as withdrawn towards charge slips. Annexure-7 and 8 are the copies of e-mails from the ICICI bank insisting the complainant to make payment with interest and signature is not criteria for master card keeping lien on SB account of the complainant and informing to initiate civil actions. Annexure-9 is the copy of bank statement for having debited Rs.4,773.51.00 from the SB account of the complainant. Annexure-10 is the copy of complaint dated 28-12-2011 bearing no.1653 registered with Banking Ombudsman, RBI, Bangalore. Annexure-11 is the copy of the Banking Ombudsman letter dated 28-12-2011 informing to approach any other forum for Redressal of his grievance.
9. The said documents of the complainant go to demonstrate that, before blocking the credit card by the OPs eight times amounts were withdrawn by swiping the credit card by third party. It is a specific case of the complainant both in the complaint and in the evidence that, the merchants in whose shop the transactions took place were bound to verify the signature on the card with that of charge slips. But, in order to establish before the forum that, the merchants in whose shop the transactions taken place are duty bound to verify the signature found on the card and the signature on the charge slips. No tangible documentary evidence is produced by the complainant in this regard. In the absence of producing any believable documentary evidence, it cannot be held on the sworn testimony of the complainant that, the merchants in whose shop the transactions were taken place are duty bound to verify the signatures found on the card, and in the charge slips. The documentary evidence in this regard is lacking for the reasons best known to the complainant. After availing the credit card facility by the complainant, it is her duty to look after the credit card carefully and cautiously. Instead of doing so, the complainant became careless and lost the credit card in the transit and the credit card has been swiped by the 3rd party and swiped eight times and took the money amounting to Rs.34,490=00. The signature of the 3rd person found in the charge slips and signature of the complainant found on the card are nothing to do to verify the fraudulent transaction of 3rd party. If the credit card is lost, the duty of the complainant is to lodge the complaint immediately for blocking the credit card. In case amount is withdrawn by swiping after blocking the card, certainly the bank will be come to rescue of the customer. But, unfortunately, in the present case on hand before blocking the credit card on the complaint of the complainant the transactions were already taken place. So the OPs bank became helpless to assist the complainant. The oral and documentary evidence of the complainant are insufficient to hold that, the merchants in whose shop the transactions taken place were bound to verify the signature found in the credit card and charge slips, and there is a deficiency of service on the part of the Ops.
10. On the other hand, one Kavitha Shetty, Legal manger of the OP has stated in her affidavit that, the complainant has under taken to make payment towards outstanding on her credit card within the period specified. However, contrary to the terms and conditions of the bank, the complainant defaulted in payment of outstanding amount on the credit card, when the complainant refused to pay the due amount, the OPs were constrained to lien mark the amount available from the bank account provided by the complainant. There is no deficiency in service of the Ops. The Ops have acted according to the terms and conditions of the agreement. The complainant to over come from her dereliction had blamed the Ops for not verifying the signature on the merchant copy before crediting the amount till this day. The complainant has not lodged any complaint before the police. Annexure-R1 is the copy of letter of the Ops bank dated 21-11-2011 stating that, before blocking of the credit card eight transactions were taken place neither the bank nor the merchant is liable in the swipe point of sale transactions. Annexure-R2 is the copy of terms and conditions of the Ops bank in respect of credit card, and in the lost page of terms and conditions, it is stated that, in case of theft of the card, it must be intimated to the bank. The card member shall be primarily responsible for the security of the card including theft. Looking to the oral and documentary evidence of the Ops, it is vivid and clear that, the Ops bank has acted in accordance with the banking rules and regulations. If the customer of the bank losses the credit card, it is duty of the card holder to lodge the complaint immediately to the ICICI Bank, and he shall also file the complaint before the police. Since, the complainant did not pay the balance amount in respect of the credit card. So, the complainant was called upon to pay the balance amount by sending several letters and inspite of it, the complainant did to pay the amount. So the Ops have recovered the amount and other charges from the SB account of the complainant, as per the banking rules and regulations. The action of the Ops in asking the complainant to pay the arrears and adjustment of the amount from the SB account of the complainant is in accordance with the terms and conditions of the bank. So, we do not find any irregularities or illegal its being committed by the Ops. On the contrary, the complainant became negligent and on account of her fault, she lost her credit card during the transit, and the 3rd party has swiped the card and taken money. So under the circumstance, the Ops bank cannot help the complainant by adjusting the amount as prayed in the complaint. Taking the evidence of the complainant and compare the same with the material evidence of the Ops, we are of the view that, the material evidence of the Ops is more probable trust worthy and agreed upon than the material evidence of the complainant. So, under the circumstance, we are of the opinion that, the complainant has failed to prove this point by placing convincing material evidence, and accordingly, we answer this point in a negative.
11. In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 19th day of July 2012.
MEMBER MEMBER PRESIDENT
