CC.No.201.2016

Filed on 03.02.2016

Disposed on.30.03.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE 30^th DAY OF MARCH 2019

CONSUMER COMPLAINT NO.201/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA, B.Sc., LL.B.,

                             PRESIDENT

                    Smt.L.MAMATHAB.A. (Law), LL.B.,

                           MEMBER,

           V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 03.02.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to drop all further proceedings in respect of the demand notice dt.17.05.2015 to 17.01.2016 towards the illegal transaction amount, to pay compensation of Rs.50,000/- and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he is holding SB Account with the Opposite Party Bank and he has also having SBI Credit Card from the Year 2007.  On 23.04.2015, the Complainant has received Phone call from the Bank and requested the Complainant that they will issue the fresh card with Photo pin number.  Accordingly, the Complainant received the fresh card without Photo in the first week of May 2015.  The Complainant has received the Bank Statement in the Month of April and May, that he is liable to pay sum of Rs.4,870/- and Rs.3,000/-, to the tune of Rs.7,870/- towards credit card transaction that is online Business.  From the date of holding the card, the Complainant never purchased or transacted anything or any transaction through online.  Even though he has not purchased the same, he is getting the due Bill every month till date.  The said problem in service is causing to the Complainant purely on the negligence of the Bank.   The Complainant is not liable to pay any amount to the Bank towards the said transaction.  Immediately, he rushed the customer Care Office situated at Bangalore on 29.05.2015 and complained about the fraud played by the third parties in his account.  Thereafter the Officials also received the Dispute From to the Complainant and he submitted the same.   The Complainant has send the complaint through mail on 31.05.2015 to the Air tell Office with regard to the fraudulent transaction from his card and also to the WWW.MOBIKWIK.COM.,  because the said amount was drawn and paid by third unknown parties to those Offices.  The said fact was also brought to the notice of the Opposite Parties, but from their end so far the Complainant has not received any compliance and not reverted the transaction and not corrected the same.  Inspite of the same the transaction was done at Mumbai regarding Air tell payment to the tune of Rs.4,870/- and another one payment made to the WWW.MOBIKWIK.COM.,  at New Delhi to the tune of Rs.3,000/-.  The said transaction is totally fraud and the Bank is only liable for all.  The Complainant has received two letters with dispute forms from the Opposite Party end only in the Month of July-2015.  The Complainant has submitted the duly filled dispute Form in the Month of May itself at Bangalore Office. Inspite of the same Opposite Party Bank has not solved the problem and sending demand notices to the Complainant again and again.  Inspite of the correspondence from April to till date the Opposite Party has no responsibility to solve the problem and on the other hand every Month they are sending the Bill to the Complainant by adding the interest on interest for Un-transaction amount by the Complainant.  It is also relevant to state that, the Complainant has utilized the card only for the purpose of purchased the petrol on 30.09.2015 only and he is liable to pay to the tune of Rs.704.13/- p.s, except this amount, the Complainant has not liable to pay any other amount as claimed by the Opposite Party Bank.  As on date the Bank is claiming to the tune of Rs.10,818.21/- as per the demand notice dt.17.01.2016 but the Complainant is not liable to pay any amount as stated in the notice.  The Complainant by personally visiting and sending the legal notice dt.20.10.2015 through his Counsel but the Opposite Party has not chosen to settle the problem.  Hence, this Complaint.

3. Even though, notice was served on the Opposite Party No.2 & 3, the Opposite Party No.2 & 3 fails to put their appearance, hence placed ex-parte. 
4. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version. In the version pleaded that the Complainant has not made the merchants as a party to the present complaint in order to bring the true facts before this Form and for the same and complaint is bad for non-joinder of necessary parties.  As the transactions made is genuine by providing the 14 Digit Credit card Number, 3 Digit CVV Number over the phone to the fraudster.  Hence, they are the necessary party to provide the vital documents to show who has made the transactions.  Further, to confirm that the dynamic OTP was delivered the registered mobile number and no change in the contact details has been identified. SMS communication regarding the aforesaid transactions was also delivered to the registered mobile number.  The complaint is not maintainable in law or on facts and it is not maintainable under the Provision of Consumer Protection Act, 1986.  As per the Card Holder’s Agreement Clause-7-7.6 clearly denotes that the Cardholder is responsible for the security of the Card, Card number and the PIN and shall take all steps towards ensuring the safekeeping thereof.  In the event SBICPSL determines that the aforementioned steps are questionable, financial liability on account of the lost, stolen or misused Card/Card number/IN shall be borne by the Cardholder and could result in cancellation of the Card Account.

5. As per the MITC of Clause (7-A) Cardholder should contact SBICPSL as soon as possible as the 24-hour SBI Card Helpline if the Primary or any Additional credit card is misused, lost, stolen, the credit card is being used without the Cardholder’s permission.  Once a card is reported lost, it should not, under any circumstance be used if found by the Cardholder subsequently, and the Cardholder should cut the cad diagonally in half.  SBICPSL is not liable or responsible for any transactions incurred on the card account prior to the time of reporting of the loss of the card to SBICPSL and the Cardholder will be wholly liable for the same.   After the receipt of proper notification of the loss by SBICPSL, the Cardholder’s subsequent liability is restricted up to a maximum of Rs.1,000/-.  In addition to notifying SBICPSL about the loss or theft of the Card, the Cardholder must report any theft of the Credit Card to the Police and lodge on FIR which is not been done by the Complainant and it is the duty of the Police to find out the culprit.  As per the Card Holder submitted that SBICPSL will not be responsible of any dispute with regard to the Merchant Establishment transactions.  Any dispute should be settled directly by the Cardholder with the Merchant Establishment and failure to do so will not relieve the Cardholder of any obligations to SBICPSL.   Accordingly, the merchant has reverted some amount of cash directly to the account of the cardholder.  Therefore, the Complainant is not entitled to file the above complaint against the Opposite Party and the same is not maintainable.  The Complainant has filed the instant complaint only with an intention to avoid making payment of bills raised to the Complainant.  According to Business Times dt.3^rd May 2016 the MOBIK WICK has issued a statement under the cofounder of Upasana Taluk is changed and new CEO is appointed and has informed that it is a Mobile Wallet player.   Such being the status of the case the card holders should be careful and cautious while answering the Mobile call denoting that they are calling from SBI.   On every Statement of Accounts issued by the SBI depicted at the bottom of the (SOA) that SBICPSL will never call you seeking the details of the Credit Card or about your personnel details if the same is done report to the nearest Jurisdiction Police.  The Complainant not brought to the notice of the Opposite Party No.1 or others and not document is produced before this Forum to show that some efforts has put forth by the complaint to secure the fraudster.    Hence, prays to dismissal of the complaint.
6. Originally this complaint is filed only against Opposite Party No.1 to 3.  The Opposite Party No.1 the Managing Director, M/s SBI Cards and Payments services Private Limited, Opposite Party No.2 the Manager, M/s SBI Cards and Payments services Private Limited, Opposite Party No.3 the Director, M/s SBI Cards and Payments services Private Limited.  Subsequently, the Complainant impleaded the Opposite Party No.4 the Manager, Mobikwik Systems Private Limited India, Opposite Party No.5 the Manager, Bharathi Airtel India Private Limited.    Even though, notice was served on the Opposite Party No.5, the Opposite Party 5 fails to put their appearance, hence placed ex-parte. 

7. On the other hand, Opposite Party No.4 put their appearance through their Counsel and filed their version.  In their version pleaded that the complaint is misconceived, untenable and not maintainable against Opposite Party No.4.  The complaint is frivolous with capricious.  The Opposite Party No.4 by virtue of “Prepaid Payment Instrument” License granted to it by the Reserve Bank of India, is engaged into the business of running e-wallet facility for its customer on pan India Basis.  The Opposite Party No.4 provides a platform for facilitation of payments from its users to different merchants again on pan India basis.   The Complainant is not a “Consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.

8. Admittedly, the complaint filed by the Complainant is silent about any issues related to either buying of goods or services.  On the other hand, the Complainant in his entire complaint has mentioned about the fraud which has taken place on his State Bank of India Credit Card.   Accordingly, the Complainant does not fall within the definition of “Consumer”. The Opposite Party No.4 is neither a necessary nor a proper party in the complaint.   The deficiency alleged in the present complaint cannot be attributed to this Opposite Party by any means whatsoever.  Hence, the averments made in the complaint are frivolous, misconceived and the complaint is liable to be rejected.  The Opposite Party No.4 is only a Company that provides phone based payment system and digital wallet.  Further, the grievances of the Complainant are limited to alleged deficiency of services and fraud of the credit card which was issued to the Complainant by the Opposite Party No.1 to 3 and not the Opposite Party.  The Opposite Party No.4 has been unnecessarily and wrongly arrayed as a party to the presents without any cause of action.  Hence prays to dismissal of the complaint.

9. The Complainant, Sri.Gopal M.T filed his affidavit by way of evidence and closed his side.  On behalf of Opposite Party No.1 to 3, Affidavit of Vipin Thomas, Authorized Representative has been filed.  On behalf of Opposite Party No.4, Affidavit of Kumar Arinduam Sadhu, Authorized Representative has been filed.  Heard arguments of both parties.

10.     The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled ?

11.     Our findings on the above points are:-

                  POINT (1)              :-   Negative 

    POINT (2)               :-   As per the final order

REASONS

12.   POINT NO.1:-  By looking into the allegations made in the complaint, as well as the version of the Opposite Parties, it is not in dispute that the Complainant is having SBI Credit Card with the Opposite Parties No.1 to 3 Bank from the Year 2007 and also it is not in dispute that the Complainant is holding S.B.Account with the Opposite Parties No.1 to 3 Bank.

13. The main allegation of the Complainant is that the Complainant has received the fresh card without Photo and received the Bank Statement in the first Week of May 2015.  In the Month of April and May that he is liable to pay a sum of Rs.4,870/- and Rs.3,000/-, to the tune of Rs.7,870/- towards credit card transaction that is online Business.  From the date of holding the card, the Complainant never purchased or transacted anything or any transaction through online.  Even though he has not purchased the same, he is getting the due Bill every month till date.  The Complainant is not liable to pay any amount to the Opposite Parties No.1 to 3 Bank.  In order to substantiate this, the Complainant has produced the Monthly Statement dt.17.05.2015.  By looking into this Statement, it is clear that the total outstanding amount is due for a sum of Rs.7,187/- and also it clears that from this Statement on 23.04.2015 the Complainant through online made a payment of Rs.4,870/- to Opposite Party No.5 and on the same day he had transacted online with Opposite Party No.4 M/s WWW.MOBIK WIK.COM, for a sum of Rs.3,000/-.  Except this Statement, the Complainant has not placed any other evidence to show that he has not transacted through online as alleged by him.  It is clear that without credit card and CVV it is not possible for any person one time for online transaction.  Furthermore, when any person approach the merchant through online transaction they credited generated OTP number that was communicated to the mobile of the Card Holder, thereby the alleged transaction is as per the request of the Complainant.  Therefore, absolutely there is no evidence to show that there is deficiency of service on the part of the Opposite Parties No.1 to 3.

14.   As rightly the defence taken by the Opposite Party No.4, there is no any allegation against the Opposite Party No.4 & 5 that there is a deficiency of service by them.  On the other hand, by looking into the allegations of the complaint, it is clear that the alleged transaction is fraudulent transaction, therefore the Complainant alleging that the said transaction is amounts to fraud as argued by the learned Counsel for the Opposite Party No.4. This Forum have no Jurisdiction to looking into the matter of the alleged fraud since it requires collaborate evidence.  Thereby, this Forum is not liable to entertain this complaint.

15.  Further even according to the allegations made in the complaint that the alleged transaction is as per the directions/request of the Complainant, thereby there is no any deficiency of service on the part of the Opposite Parties No.1 to 3.  Further as stated earlier, there is no allegation against the Opposite Party No.4 and 5 that there is a deficiency of service.  Therefore, the Complainant failed to prove that there is deficiency of service on the part of the Opposite Parties.  Hence this point is held in Negative.

16.  POINT No.2 :-  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed.  No cost.

Supply free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, dt.30^th day of March 2019).

MEMBER                                                              PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Sri.Gopal M.T, who being the Complainant has filed his affidavit.

List of documents filed by the Complainant:

1. Copy of the Credit Card.
2. Copy of the Bank Demands.
3. Copy of the Legal Notice dt.20.10.2015.
4. With Acknowledgements.

Witness examined on behalf of the Opposite Parties:

1. Sri.Vipin Thomas, Authorized Representative of Opposite Party  No.1 to 3 by way of affidavit.
2. Sri.Kumar Arinduam Sadhu, Authorized Representative of Opposite Party No.4 by way of affidavit.

List of documents filed by the Opposite Party:

1. Card Holder Agreement and Most Important Terms and conditions.
2. Copy of the Paper statement.
3. Copy of the Statement.
4. Mail extract of the details.

        MEMBER                                                            PRESIDENT