Complaint filed on: 13-08-2012 Disposed on: 27-01-2014 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.1634/2012 DATED THIS THE 27th JANUARY 2014 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.JANARDHANA, MEMBER Complainant: - Mr.Gunjan Jha, H.No.17, K.R.Garden, 2nd Stage, 2nd Cross, Jeevanahalli, Cox town, Bangalore V/s Opposite party:- ICICI Bank Limited, No.4/10, Mythree Centre, 1st floor, West Wing, near Oxford University, Hosur Road, Bommanahalli, Bangalore-68 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to pay Rs.1,00,000=00 as compensation for mental agony. 2. The brief facts of the complaint can be stated as under. The complainant took an ICICI credit card in the year 2007 bearing card No.5176 5371 4360 7008 and he was using the card and was making regular payments. On 6-12-2007, the complainant got a message on his mobile mentioning his card has been swiped for an amount of roughly Rs.26,000=00. Immediately the complainant contacted ICICI bank on CMH Road, Indiranagar, Bangalore where he was advised to contact helpline and block his card. The complainant did so and blocked his card and the customer support staff of ICICI bank asked the complainant if he want a replacement card to which he replied yes and also enquired about the details of the merchant and location where the card was used. The Staff did not have the data and asked the complainant to contact after two days to get the details. The complainant contacted the ICICI helpline again after two days and was told that, the card was used in a shop in Dubai and they also gave him the card number which was used in Dubai and this number did not match the complainant’s card. The complainant was informed about the credit card number 5176 5371 4360 7016. A few days later the complainant got replacement card from ICICI bank it was in a sealed pack, when the complainant opened the envelope, he found that the card number was the same that was used in Dubai. The complainant immediately called and complained about the issue, where he was advised to raise a complaint to ICICI Mumbai office via FAX, and the complainant did so and waited for their response, however did not get any up to date for roughly three weeks. When the complainant called the helpline, he was informed that the bank has finished the investigation and that the complainant is liable to pay the amount to them. The complainant was also told that, this card was an add on card. However, the complainant has never applied for an add on card and even after repeated requests, they have not been able to present him with a proof of his signature on approval for an add on card. The complainant mentioned that, he will pay only that amount which he has paid and nothing more, he made a payment of Rs.5,000=00. A few days later the bank without permission of the complainant, debited roughly Rs.34,000=00 from his account and the complainant was stranded with no money in Delhi because of this incident. There are a lot of charges from ICICI Lombard Insurance on his credit card, and he has never taken an insurance from ICICI Lombard. Looks like the ICICI bank wants to take this opportunity to squeeze as much money from the complainant, the harassment did not end there, collection agents then started visiting his house and stared abusing and threatening the complainant and his family and they are also harassing his in-laws and parents of the complainant. The complainant would need help of the forum as this is disturbing his family life and also he is facing mental harassment for last four years, he cannot afford to pay anything now and needs help of the forum and he raised a complaint with the RBI Ombudsperson, however it did not result into anything. Hence the present complaint is filed. 3. After service of notice, the OP has appeared through its counsel and filed version contending interalia as under: The complaint of complainant is not maintainable in law and deserves to be dismissed in limine. The complaint is based totally on presumptions and conjectures drawn by the complainant and not based on any cogent and valid documents, so the complaint be dismissed under section 26 of the CP Act with exemplary costs. The complainant has no cause of action. The complainant has failed to make out a case of deficiency in service, injustice and fraud against the OP. The complainant has not provided any valid and legal reason for which he is eligible for any relief. The complainant has approached seeking credit card and thereby made a request through credit card application. Pursuant to the same the said credit card no.5176537143607008 was sanctioned with the belief and assurance that any charge incurred by virtue of the usage of the card, shall become due and payable and the same shall be paid on receipt of the monthly statement of account on or before the payment dates. These conditions were more specifically stated in the welcome booklet sent along with the credit card. On 6-12-2007 the said credit card was swiped at Kite Trading Co. LLC, Dubai for Rs.25,609.42ps and the complainant alleges that the card was not swiped by him, a replacement card bearing no.5176537143607016 was issued to him as per his request. The replacement card bearing no.5176537143607016 was the same as was used in Dubai for Rs.25,609.42ps on 6-12-2007. The OP received the card member dispute form from the complainant by fax on 28-12-2007. Based on his complaint, the OP posted temporary credit into his credit card account no.5176537143607016 on 31-12-2007. After verification the OP confirmed that the transaction was carried out using the complainant’s primary credit number. The OP has also provided all the supporting documents to the complainant, this shows that the intention of the complainant was to defraud the bank, hence the complaint is liable to be dismissed. Despite providing sufficient time and opportunity, the complainant failed to clear the outstanding dues form his above mentioned credit card facility. The OP has put lien on the complainant SB account with respect to his unpaid outstanding dues by its statutory right under the Indian Contract Act and the said and set off the available balance against his dues payable and the same was informed to the complainant vide letter dated 11-9-2008. Subsequently an amount of Rs.34,524.87 was debited from the complainant’s SB account and credited to his credit card on 17-9-2008. The allegation made by the complainant that the OP debited Rs.34,000=00 without permission of the complainant is false and baseless. The complainant has approached the banking ombudsman in Feb.2011 wherein the OP has produced all records of transaction carried out by the complainant through his credit card. The banking ombudsman has rejected the claim of the complainant and confirmed that the transaction was carried out by using the primary credit card of the complainant. So the OP has not committed any deficiency of service. Rs.98,212,46ps is due as on 24-3-2011 from the credit card amount of the complainant, the complainant has defaulted in the payment of the outstanding on his card in spite of several follow ups to collect legitimate contractual dues, and as the complainant has not made any efforts to clear the outstanding dues, the OP has deactivated his credit card account. The burden of proof lies on the complainant to prove their averment that they have not used the credit card. Mere stating that their credit card was not used by the complainant will not suffice. The ICICI Lombard Insurance was opted by the complainant himself through the OP bank’s telecaller and as per the complainant’s instructions the policy amount was debited from his account. The allegation made by the complainant that the collection agents are threatening and harassing him and his family is false and baseless. Moreover, if there was any harassment or abuse as alleged by the complainant then the complainant should have lodged a policy complaint. Nothing on records is placed elucidating the reason behind claiming the quantum of compensation. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity. 4. So from the recital of the complaint of the complainant and version of the OP, the following points arise for our consideration. 1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP? 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 his affidavit by way of evidence and produced copy of master card, two letters from the banking ombudsman and one letter of ICICI bank and one letter of complainant, passport copy, save statement for email, SMS details and passport copy. On the other hand, one Hamsa Nandhini, who being the Manager legal working in the OP bank has filed her affidavit by way of evidence and produced two copies of documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides meticulously. 7. One, Gunjan Jha, who being the complainant has stated in his affidavit evidence that, he approached the bank for issuing a credit card, the reality however is that when employer opened a salary account for him at ICICI bank he was approached by ICICI representative to get a credit card as well. The ICICI bank claimed that he had agreed for insurance to be activated over the phone call made to him by telecaller and he requested them to provide a copy of insurance signed by him. Moreover, his employment with QBar technologies the company already had insurance for himself and his family and there was no need for him to enroll for another insurance policy. The OP claimed that it had sent statement to him which shows the usage of card in Dubai. They have never been able to share the charge slip signed by him at Dubai. He is also attaching his passport copy which shows that, he has never stepped in Dubai in his life. How can he sitting in his office in Bangalore shop physically in Dubai, he was told that ICICI has investigated the matter and found him liable to make a payment; he would like to see the investigation report. He was informed about the card number used in Dubai for the disputed transaction. Inspite of his repeated requests, ICICI bank has not been able to provide him with a recording of the call, and he has never received any such mail dated 11-9-2008 from them. His sister-in-law in Delhi was threatened over the phone and his wife was sent a threat message over the phone and he then also contacted Ashok from Bommanahalli branch who then apologized and mentioned that he will ensure this does not happen again. Ashok did ask him not to lodge any police complaint. He has made all the payments regularly before the disputed transaction took place; it was only after this issue he has stopped his payments. So he requests the forum kindly to help him out of this mental agony and harassment because of this plot created by the OP. 8. Let us have a look at the relevant documents of the complainant. Document no.1 of the complainant is the copy of MasterCard issued by the OP in the name of complainant. Document no.2 is the copy of letter of Banking Ombudsman dated 28-4-2011 addressed to the complainant calling upon him to be present on 12-5-2011 at 11.30 a.m. as hearing of his complaint is fixed. Document No.3 is the copy of letter of Banking Ombudsman dated 29-3-2011 addressed to the complainant stating that they have forwarded a copy of the bank’s response dated 28-3-2011 and advise the complainant to offer his comments within seven days. Document no.4 is the copy of letter of ICICI bank dated 24-3-2011 addressed to the complainant stating that, on 6-12-2007 the transaction was done using his card no.5176537143607008 as per their records, so they deny the contentions of the complainant that the transaction is done using his replacement card no.5176537143607016 and transaction is debited towards primary card only. Document no.5 is the copy of letter of bank stating that, there is an amount outstanding of Rs.98,212.46 and requested the complainant to make the payment of outstanding dues and stated further that his credit card account is deactivated status. Document no.6 is the copy of passport of the complainant having his photo and home address. Document no.7 is the copy of statement account of credit card account no.5176537143607016 of the complainant from 20-11-2007 to 20-5-2009 wherein we found that, on 6-12-2007 transaction has been made by Dubai in Kite Trading Co. LLC, Dubai by using credit card of complainant and an amount of Rs.25,609.42 has been debited from the account of complainant so also on 18-12-2007 an amount of Rs.125.02 and Rs.1,193.73 have been debited from the account of complainant by ICICI Lombard Gen. Ins. The credit card taken by the complainant was lying with the complainant only as on the date of alleged transaction. The complainant has not explained with convincing documentary evidence as to how his pin code number was used and made the transaction at Dubai. The pin code number of credit card was only known to the complainant. The OP bank is not knowing to pin code number of credit card of complainant. After issuing the credit card to the complainant, it is the complainant who alone knows the pin code number of credit card. The complainant has not explained satisfactorily as to how his pin code number of credit card was used at Dubai at 6-12-2007 and made transaction in question. The material evidence placed by the complainant is not sufficient enough to hold that, the OP is responsible in making this alleged transaction at Dubai on 6-12-2007. The complainant who comes to the forum seeking relief has utterly failed to prove with clear and tangible evidence that, his pin code number of credit card was misused by third party with active collusion of OP and made the transaction on 6-12-2007 in Dubai. This is all about the material evidence of the complainant. 9. Let us have a cursory glance at the material evidence of the Ops. One Hamsa Nandhini, who being the manager legal working in the OP bank has stated in her affidavit that, the OP received the card member dispute form from the complainant by fax on 28-12-2007, and based on his complaint, the OP posted temporary credit into his credit card account no.5176537143607016 on 31-12-2007. After verification the OP has confirmed that the transaction was carried out using the complainant’s primary credit number. The OP has provided all the supporting documents to the complainant. The OP by its statutory right under the Indian Contract Act has put a lien on the complainants SB account with respect to his unpaid out standing dues and subsequently an amount of Rs.34,524.87 was debited from the complainant’s SB account and credited to his credit card. The complainant has appeared before the banking ombudsman, and the banking ombudsman has rejected the claim of the complainant. So the OP has not committed any deficiency of service as per CP Act. The complainant has defaulted in the payment of the outstanding on his credit cared and he has not made any efforts to make payment of his dues. The complainant has used his credit card in other countries as well which can be seen in the statement of account. The ICICI Lombard Insurance was opted by the complainant himself through the OP bank’s telecaller and as per the complainant’s instructions the policy amount was debited from his account. Collection calls are made only to remind the customers of their overdue payment and not to harass them. If there was any harassment or abuse as alleged by the complainant, then the complainant should have lodged a policy complaint, so the complaint be dismissed with cost. 10. The OP has produced terms and conditions of the credit card wherein at page no.12 under heading of loss/theft/misuse of card, it is stated as under: “In case of loss/theft/misuse of the card, it must be reported immediately to the ICICI bank customer care. The bank shall thereupon suspend the card. The card member advised to file an FIR with the local police station so that the card member can produce copy of whenever requested by the bank”. Document no.2 of the OP is copy of credit card statements of OP bank in respect of complainant wherein it is stated that, the closing balance of credit card account of complainant is 98,212.46. 11. Taking the material evidence of OP and compare the same with the oral and documentary evidence of complainant, it is vivid and clear that, the complainant has to show before the forum with documentary evidence that, on which date, he made the complaint to the ICICI bank about alleged transaction, and on which date, he lodged the police complaint. The complainant has failed to act as per terms and conditions of the credit card issued by the OP by filing immediate complaint to the OP bank and police. In fact, the complainant did not act as per terms and conditions of the credit card. Moreover the complainant has shown with convincing evidence that, how his secret pin code of credit card was used by third part at Dubai. On the other hand, the OP who being the bank has acted in accordance with the terms and conditions of credit card and banking rules and regulations and there is no negligence or deficiency of service on the part of the OP, and as such, we are of the view that, the oral and documentary evidence of OP are more believable trustworthy and acted upon than the material evidence of complainant, so we inclined to come to straight conclusion that, the complainant who comes to the forum seeking relief has utterly failed to prove this point with clear cogent and consistent material evidence that, the OP is negligent and there is deficiency of service on the part of the OP, and accordingly, we answer this point in a negative. 12. In view of our negative finding 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 foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is hereby dismissed. No 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 27th day of January 2014). MEMBER PRESIDENT |
