Complaint filed on: 16-12-2011
Disposed on: 17-01-2013
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.2288/2011
DATED THIS THE 17th JANUARY 2013
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SMT.NIVEDITHA.J, MEMBER
Complainant: -
Sri.M.Somashekar,
S/o. late M.R.Muniswamy,
Aged about 59 years,
R/a No.117/A Lalbagh Road,
Bangalore.
V/s
Opposite parties: -
1. The Manager,
M/s. ICICI Bank Ltd,
Regd Office at Landmark,
Race course circle,
Vadodara-390 007
2. M/s. ICICI Towers,
Bandra Kurla Complex,
Bandra (E) Mumbai – 51
3. The Account Manager,
Credits Cards Division,
ICICI Bank, Bangalore.
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs no.1 to 3, under section 12 of the Consumer Protection Act,1986, praying to pass an order, directing the OPs to waive of the outstanding in relation to the credit card in question since the complainant has no privity in whatsoever manner, to take necessary steps for removal of the complainant name from CIBIL and to instruct the representative and recovery agency not to harass the complainant and to pay a sum of Rs.2,00,000=00 as compensation.
2. The brief facts of the complaint can be stated as under.
The complainant had applied for a credit card from the OP bank and credit card was issued bearing no.4477473613162002. The complainant possessed a credit card duly issued by the OP bank with a credit limit of 93,800=00 and the complainant at all points in the time would discharge the dues in relation to the card without any demur. On 17-4-2007 a person claiming to be representative of HDFC credit card division approached the complainant and enticed him that based on the existing credit card duly issued by the OP that the HDFC credit card division would issue a platinum credit card subject to issuance of a copy of a credit card in question. Driving License for additional verification and accordingly, the complainant handed over the aforesaid credit card in question alongwith the driving licence to the said person who represented that he would procure Xerox copies of the same and immediately return the credit card and driving licence in question. After efflux of time, the said person failed to return and at that point in time the complainant realized that he was taken for a royal ride. Immediately, the complainant called the OP’s customer care and informed them to immediate block the credit card in question and executive of customer care of the OPs orally relented that, they would do the needful immediately without any further delay and with regard to the same, a complaint no.BNG SR1020843214 was shared. The complainant innocently believing upon the representation made by the OP’s customer care executive did not pursue the matter with the OP bank but lodged a complaint with the jurisdictional police station on 18-4-2006. The complainant requested the OP bank to block the credit card in question, but the OP bank failed to do so, and accordingly, the aforesaid person who swindled the credit card in question from the hands of the complainant and used the same at the various place as under:
Sl.No. Particulars Amount
1. Pick and speak, KH road, Rs.19,380=00
Bangalore
2. Precision Watches Rs.1,200=00
3. Quick Service Station Rs.165.70=00
4. Transcell solution and Serb Rs.9,384=00
5. Transcell solution and Serb Rs.8,346=00
6. Unity Times Rs.5,500=00
To the shock and surprise, the complainant received a credit card statement seeking monies as reflected therein. The complainant made various written and oral representation enlightening the OPs bank with regard to the misuse of the Credit Card and no action is taken by the OPs bank. The complainant is a consumer as per the provisions of Consumer Protection Act, and there is deficiency of service on the part of the OPs. The complainant has been harassed for no fault of his by the recovery agency and so called representation. The misuse of credit card could have been easily prevented by the OPs by prudently blocking the credit card in question, since the OPs have failed to do so; there is short coming from the end. The complainant got issued a legal notice to the OPs and inspite of receiving the notice; the OPs have not reverted back till date. Hence, the present complaint is filed.
3. After service of the notice, the OP no.3 has appeared and filed version contending interalia as under:
The complaint of the complainant is not maintainable, and the complainant has suppressed the true facts. The complainant has availed credit card facilities from the OPs and he is well aware of the terms and conditions of the credit card facilities. As provided in clause (f) of most important terms and conditions applicable to credit cards. 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 FIR with the local police station so that the card member shall be primarily responsible for the security of the card including theft and for the transactions using the card. The complainant has failed in his primary duty of keeping the credit card secure and his negligence is apparent from the fact that he has handed over his card to unknown person and for that mistake the bank should not be made liable for negligence and failure of the complainant to take adequate care of his credit card. On the perusal of provided service request number has observed that same does not pertain to account of the complainant at all and that bank has never received a request to block the credit card and that the credit card has been blocked due to non payment of the outstanding dues. The complaint also ought to be dismissed on the ground of limitation since the alleged dispute transaction pertains to the year -2006 which shows that the said complaint is hopelessly barred by limitation as per section 24A of the CP Act. This forum does not have jurisdiction to entertain the complaint of the complainant. The credit card of the complainant has been blocked in the year 2006 for non payment of dues. The present matter is purely contractual and commercial in nature; hence the complaint is not maintainable. On an investigation of the service request that has been stated by the complainant, it is found that the said service request does not pertain to the present alleged dispute raised by the complainant. Whatever stated in the complaint of the complainant is totally denied by this OP. Inspite of repeated reminders and intimation the complainant had not turned upon to make the outstanding due amount of Rs. 58,600.32. Moreover, the complainant has not produced any documents to prove his claim. On the contrary, all the documents produced by the complainant to prove the defence of the OP, there is no cause of action to file the present complaint. Hence, it is prayed to dismiss the complaint with exemplary cost.
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, there is deficiency of 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 his affidavit by way of evidence and produced five copies of documents alongwith the complaint. On the other hand, Kavita Shetty, Chief Manager working in the OP no.3 office has filed her affidavit by way of evidence and produced three copies of documents as Annexure-A to C. We have heard the arguments of both sides, and we have gone through the oral and relevant documents of both parties meticulously.
7. One M.Somashekar, who being the complainant has deposed in his affidavit filed by way evidence that, he possessed a credit card bearing no.4477473613162002 duly issued by the OP bank with a credit limit of 93,800=00. On 17-4-2007 unfortunately a person claiming to be representative of HDFC credit card division approached and enticed him that based on the existing credit card duly issued by the OP the HDFC credit card division will issue a platinum credit card subject to issuance of a copy of a credit card in question and Driving License and accordingly, he handed over the credit card alongwith the driving licence to the said person who represented that he would procure Xerox copies of the same and return the credit card and driving licence. After efflux of time, the said person failed to return the credit card and he realized that he was taken for a royal ride. Immediately, he being a prudent person called the OP’s customer care and informed them with regard to the same and requested them to block the credit cared in question and executive of customer care of the OPs orally stated that, they would do the needful immediately without any further delay. He innocently believing upon the representation made by the OP’s customer care executive did not pursue the matter with the OPs bank but lodged a complaint with the jurisdictional police station on 18-4-2006. The aforesaid person who swindled the credit card in question from the hands of the complainant used the same at the various place as under:
Sl.No. Particulars Amount
1. Pick and speak, KH road, Rs.19,380=00
Bangalore
2. Precision Watches Rs.1,200=00
3. Quick Service Station Rs.165.70=00
4. Transcell solution and Serb Rs.9,384=00
5. Transcell solution and Serb Rs.8,346=00
6. Unity Times Rs.5,500=00
To the shock and surprise, he received a credit card statement seeking monies as reflected therein. At various point in time made various written and oral representation has been made to OPs with regard to the misuse of the Credit Card, but no action was taken by the OPs bank to block the credit card. He is a consumer under the Consumer Protection Act, and there is deficiency of service on the part of the OPs, and he was harassed for no fault of his. The misuse of credit card could have been easily prevented by the OPs by prudently blocking the credit card in question, since the OPs have failed to do so and there is short coming from the end. He has been receiving various credit card statement seeking monies in relation to the aforesaid transaction, various other persons are calling him and threatening him with dire consequences. So he being harassed, issued a legal notice to the OPs, but no reply was given. So the OPs are responsible for all transaction in relation to credit card in question. So, he prayed to allow the complaint and pass an order, directing the OPs to waive of the outstanding in relation to the credit card, to take necessary steps for removal of his name from CIBIL, and to instruct the representative and recover agency not to harass him and to pay Rs.2,00,000=00 as compensation.
8. By a careful reading of the complaint and evidence of the complainant as mentioned above, it is no doubt true that, the complainant has tendered his evidence in conformity with the averment 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 supported by documentary evidence or not. Document no.1 of the complainant produced alongwith the complaint is the copy of letter of the complainant written to OP dated 29-4-2006, stating that on 17-4-2006 the transactions have been made in respect of his credit card bearing no.4477473613162002 by M/s. Pick N Speak, Precision Watches, Quick Service Station, Transcell Solution and Ser, Transcell solution and Ser and Unity Times, Bangalore for Rs.19,380=00, Rs.1,200=00, Rs.165.70, Rs.9,384=00, Rs.8,346=00 and 5,500=00 respectively, and he has not made any of these transactions and it has been wrongly billed to him and he does not recognize any of the above transactions, please do a clear investigation on all the above transactions and revert to him at the earliest. Document no.2 is the copy of complaint given to the Inspector of Police, Jayanagar police station, Bangalore dated 18-4-2006 by the complainant stating that, a Con man approached him under a pretext as he is from HDFC credit card agency and asked for his existing credit card and Driving Licence for address verification and he assured that, he will take a Xerox copy for the process of HDFC Credit card, but he never returned even after half an hour, and he immediately called ICICI bank, and asked them to block his credit card, in the mean time, he misused the card, so he requested them to investigate and do the needful. A careful reading of the said copy of the complaint, it is transpired that, the complainant himself handed over his credit card to one person who came to him stating that, he is HDFC credit card agent, and the said complaint does not reveal on which date that man came to the complainant, and on which date and time the complainant handed over his credit card and Driving licence for address verification. The said complaint is ambiguous with regard to the exact date on which credit card and DL were handed over to HDFC credit card agent by the complainant. Beside, the said complaint does not bear the seal and signature of Jayanagar Police Station for having received the complaint of the complainant on the said date. Document no.3 is the copy of letter of the OP dated 24-5-2006 stating that, the transaction took place by his credit card having be swiped through machine, and they enclosed copy of charge slip and name of merchant is M/s. Pick N Speak Kh Road, and date of transaction and amount of transaction are 17-4-2006 and Rs.19,380=00. Document no.4 is the copy of letter of OP dated 25-5-2006 addressed to the complainant stating that, name of merchant is M/s.Precision Watches, and date of transaction and amount of transaction are 17-4-2006 and Rs.1,200=00 and investigation was confirmed that the transaction took place by his credit card and they enclosed charge slip. Document no.5 is the copy of letter of OP addressed to the complainant stating that, investigation was confirmed that, the transaction took place by his credit card and name of merchant was M/s. Transcell Solution & Ser, and date of transaction was on 17-4-2006 and amount of transaction was Rs.9,384=00, and they enclosed a copy of charge slip. Document no.6 and 7 are the copies of letters of OP addressed to the complainant stating that, investigation has confirmed that the transaction took place by his credit card and they enclosed two copies of charge slips and M/s. Transcell Solutions & Ser and Unity Times are the name of merchants and date of transaction and amount of transaction were on 17-4-2006 and Rs.8,346=00 & Rs.5,500=00 respectively. Document no.8 and 9 are the copy of legal notice of the complainant stating that, the complainant possessed a credit card bearing no.4477473613162002 with a credit limit of Rs.93,800=00 and the complainant would discharge the dues in relation to the said credit card without demur. But unfortunately on 17-4-2006 a person claiming to be representative of HDFC credit card division came and enticed the complainant stating that HDFC bank would issue a platinum credit card subject to issuance of copy of a credit card in question and driving license and relying upon the representation made by the aforesaid person, the complainant handed over his credit card and driving licence to the said person, since the person represented that he would procure Xerox copies of the same and return the same immediately, but that man failed to return the same, immediately the complainant called upon the customer care and informed the same and requested them to block the credit card, but customer care executive did not pursue the matter, so the complainant has lodged a complaint in jurisdictional police station on 18-4-2006, and the OPs were called upon to block the credit card, but they failed to do so, and accordingly, the said person who swindled the credit card must have used at various places. The complainant received a credit card statement seeking monies as reflected therein. The complainant has made various written and oral representation to the OPs about misuse of the credit card and requested to block the credit card, but the OPs have failed to block it and there is deficiency of service on the part of the OPs, so called upon the OPs to waive of the outstanding in relation to the credit card and to remove the name of the complainant from CIBIL and to instruct representative and recovery agency of OPs not to harass the complainant and pay Rs.50,000=00 as damages and notice fee of Rs.5,000=00, failing which, he will approach jurisdictional consumer forum. The rest of the documents of the complainant are postal recipes and acknowledgement cards.
9. The said oral and documentary evidence of the complainant go to demonstrate that, the complainant has handed over his credit card to a person who came to him as an agent of HDFC credit card division, and that person did not return the credit card and driving licence, and that man must have made transaction with the help of credit card and taken the money, when the statement of account of the credit card was sent, the complainant came to know about the alleged transaction by the said unknown person and filed a representation to the OPs about the transaction and at that time the complainant came to know about the details of the transaction. The complainant who being the credit card holder of OP ought to have taken maximum care and caution for preserving his credit card safely. Instead of preserving the credit card safely, the complainant has handed over his credit card to unknown person and allowed that man to with drawn the amount by swiping the credit card and he has given representation to the OPs to block the credit card and make investigation and by the time the investigation was made, it is made to understand that, all these time amounts were with drawn and thereafter started making allegations against the OPs that, the OPs did not block the credit card and the complainant is not liable for the said transaction etc. The act of the complainant in handing over his credit card to an unknown person on a particular date goes to show that, the complainant is totally negligent in preserving his valuable i.e. credit card safely and for the negligence of the complainant the OPs bank cannot be blamed for negligence or deficiency of service. Letter dated 29-4-2006 addressed to the OP by the complainant, makes it clear that, the complainant sought clarification with regard to the specific transactions took place on 17-4-2006, but it is pertinent note from the said letter of the complainant that, the complainant never made any mention of theft of his credit card on a particular date.
10. At this stage, it is relevant to have a look at the oral evidence of the OP, one Kavita Shetty, Chief Manager working in the OP no.3 office has deposed in her affidavit that, the complainant had availed a credit card facility from their bank and at the time of taking said credit card, the complainant knew about the terms and conditions of the credit card facility and as per the terms and condition, the card member shall be primarily responsible for the security of the card including theft and for the transaction using the card. But in this case, the complainant is totally negligent in preserving his card safely as he handed over the credit card to unknown third person and made him operate his account, so the OP is not responsible for the negligence of the complainant. The OP bank acted promptly whenever the complainant asked any information and also acted as per the terms and conditions of the credit card facility and also as per the banking rules. The complainant has failed to prove negligence or deficiency on the part of the OP. The complaint is hopelessly barred by time as alleged transaction took place in the month of April 2006, and the present complaint came to be filed on 16-12-2011, so the complaint of the complainant be dismissed with cost.
11. Annexure-B produced by the OP goes to show that, the request was made by the complainant for issuing account statement pertaining to account in Delhi and not for blocking of credit card. Annexure-C produced by the OP discloses that, the complainant’s credit card account was closed in the years 2006 as the complainant committed default to make payments as agreed upon.
12. The documents of the complainant do not throw any light on the point of deactivation of the credit card, and oral and documentary evidence of the complainant are totally silent in relation to request of the complainant for deactivation of the credit card or specific service. In the absence of make any specific service by the complainant it cannot be construed as deficiency of service on the part of the OP. That apart as per the case of complainant, the alleged transaction took place in the month of April -2006, but the present complaint came to be filed on 16-12-2011. No plausible explanation is offered by the complainant for filing the present complaint late on 16-12-2011, instead of filing the same well within two years from the April 2006 as per provisions of section 24A of the CP Act. So looking to the allegations of the complaint of the complainant and date on which the present complaint came to be filed, we are of the view that, the present complaint is barred by limitation. Having considering totality of the oral and documentary evidence of both parties, it is vivid and clear that, the OPs have acted as per the terms and conditions of credit card facility and also as per banking rules and regulations and there is no negligence or deficiency of service on the part of the OPs as such. On the other hand, the complainant who being negligent as handed over his credit card to unknown person and allowed him to operate his account and for the fault of the complainant, the OP cannot be blamed and as such we are of the considered opinion that, the complainant has failed to prove this point by placing clear cogent and consistent material evidence, so we answer this point in a negative.
13. In view of our negative findings on point no1, 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. 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 17th day of January 2013.
MEMBER PRESIDENT
