IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the    9^th  Day of  August    2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.94/13

Jaya Yesodharan                                         :         Complainant

Amritha, Madan Nada

Thekkevila P.O, Kollam-691016

[By Adv.R.Parameswaran Pillai]

V/s

1. The Manager                                     :         Opposite parties

         Union Bank of India

        Credit Card Division

        708-Mercantile House, Magazine Street

        Dharukhana, Reay Road

        Mumbai-400010.

        [By Adv.T.Ajeesh]

2. The Manager

          Union Bank of India

          Branch Kottiyam

          Kollam.

        [By Adv.T.Ajeesh&Adv.R.Jagadish Kumar]

FAIR ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This is a case  based on a consumer complaint filed under section 12 of the Consumer Protection Act.

The averments in the complaint  as stands amended in short are as follows:-

          The complainant is a  credit card holder of Union Bank of  India taken through Kottiyam Branch.  Her  Account No. is 336704010032042.  On 21^st November 2014 at about 4 am the complainant while she was at her residence at Madannada in  Thekkevila received a message in her mobile phone  that a fraudulent transaction of Rs.70,032/- equivalent to 1258.60 Dollars has taken place in her credit card facility by creating a duplicate credit card using  the details of her credit card and used Oman Airways at Dar-El Salaamts a   country

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in Africa.  Immediately  the complainant contacted the call centre of the Union Bank of India at Mumbai through telephone and reported the above said fraudulent transaction committed by unknown person.  The complainant also asked the bank to block her card and reverse the transaction urgently as it was not done by her and also send the above    information  through   e-mail   to  the call centre staff.  As a reply to the above e-mail the manager of  the Union Bank of  India informed the complainant by e-mail that the said transaction has been blocked and that the merchant did not claim for settlement till that time.  On the same day itself the complainant have requested the Union Bank  for the details  of  the  transaction which was duly sent by them to her.  The complainant as an abundant caution and care contacted Usha Subhash ex-employee of Oman Airways   made detailed discussion.  Inspite of    the   above efforts there was no proper response from Union Bank.  Therefore on the evening of  22^nd November the complainant send another e-mail requesting them to reverse the transaction. In reply the  opposite party bank informed through e-mail that the said fraudulent transaction is still blocked in the complainant’s credit card account and the same is not debited in her account  since the merchant has not presented  for payment.  Hence the  complainant was  under  the impression that the said matter is solved.  However on 1^st  week of January 2013 the 1^st opposite bank  send  a credit card bill  to the complainant and the same was received on 09.01.13 .  As per the bill there was a debit of an amount of Rs.70393.44/-  in the account of the complainant.  The 1^st opposite party bank has also informed the complainant that the bank has no responsibility to settle the case of disputed transactions and in such event the credit card holder himself had to resolve the dispute  with the concerned member establishment  at  her own risk.  However they provide service  for  retrieval of charge and claimed a fee of Rs.100/- also.  The bank also requested the complainant to make payment for  the  bill amount pending for settlement of  disputed  transactions to avoid levy of penal  charges. 

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The complainant send a reply e-mail repeating the entire episode and requested them to reverse the said fraudulent transaction  originally or else she will be forced to take up the matter before the RBI Ombudsman .  But after getting reply from the opposite side the said  Ombudsman closed under 13(c) of the Banking Ombudsman Scheme 2006 and also advised the complainant  to approach any other forum for the redressal of her grievances.    According to the complainant the bank has committed deficiency in service and unfair trade practice in keeping the  secrecy of the credit card  and its operation.  The bank  has to give sufficient security to the customer.  The above said act of the opposite party bank has caused much mental agony and financial loss to the complainant for which the bank alone is liable.  Hence   the complainant  claims compensation to the tune of Rs.2,00,000/- for the mental agony and other loss.  Hence the complaint.

          The opposite party bank resisted the complaint with tooth and nail and filed a written version raising the following contentions.  The petition is not maintainable either in law or on facts.  The complainant is barred by resjudicata.  Since the  same is considered by the Banking Ombudsman.  The petition is barred for non-joinder  of    necessary   parties.  The  Forum lacks jurisdiction to entertain the petition.  The complainant does not come under the definition of Consumer and hence the complainant has no locus-standi to file this complaint. However the opposite party would admit that the complainant is a credit card holder of the opposite party Union Bank of India.  The alleged transaction done by the card holder /complainant has been done in a secured mode using the same verified by VISA password which is known to the complainant only.  The password was created by the card holder/complainant on 09.05.12.  The alleged transaction was taken place on 21.11.12 is informed by the VISA authorities that the alleged transaction has been done under secure environment  with card holders   password   which   is  created by the card holder and known to the card

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holder only.  In the circumstance the complainant’s liability towards the said transaction cannot be ruled out.  The alleged transaction is with respect of Oman Airways at  Dar-El-Salaamts and the same has been clarified by the complainant with one Usha Subhash of the said Airways.  In view of the above averments it is clear that the complainant is no way stranger with the Oman Airways.  The reluctance of the complainant to  lodge a complaint before the police authorities itself shows  some sort of collusion of the complainant in the alleged transaction.  On receiving the  non recording the disputed transaction it was properly dealt with the bank authorities concerned.  But at another point of time the call centre has given another assurance to the complainant that they will block   and  reverse   the  alleged  transaction  but the same is not possible at all.  The opposite parties acted promptly and provided the transaction details only future transaction can be blocked.  Hence  the averments that the alleged transaction is blocked by the opposite party is incorrect.  There is no deficiency in service on the side of the opposite parties instead of lodging a complaint before police authorities the complainant is trying to mislead this forum and also to penalise the opposite parties for  the wrong done by the complainant.  The alleged transaction cannot be occurred without the knowledge of the card holder.  The securedness of a credit card is known to the card holder only.  No mental agony has been caused to the complainant on the other hand the opposite party is put to difficulty for the act of the complainant. Without an investigation the persons  involved in this allegation cannot be brought out.  No part of the cause of action taken place within the territorial limit of this forum.  Reliefs sought for are  against true facts and hence not allowable.  The  opposite party bank is no way responsible for the same. 

After getting the complaint amended the opposite party 1&2 filed joint additional version.  Refund was made by the opposite parties as early on 10.05.13.  Hence    the    relief   claimed   in this case is satisfied.  Therefore  the

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complaint has no cause of action to institute the present complaint.  There is no cause of action  nor there is any deficiency in service on the side of the opposite parties.  Hence no further relief can be claimed.

The complainant filed written objection (replication) against additional version filed by the opposite parties.  The fraudulent transaction was taken place in the credit card facility of the complainant with Union Bank of India having Account No.4391550000050461 and it has no connection with the  saving bank account of the complainant.  The claim  of the opposite parties that they have made a refund of the amount of Rs.70032 towards the Savings Bank Account  of the petitioner having Account No.36704010032042 is also not correct.  No such    refund  has    been    brought    to    the   knowledge of    the complainant.  The opposite parties have not given any notice to the complainant informing the said refund if any made.  On verification of the statement of account no refund of the amount has been seen made.  Though the opposite parties are aware that they can produce the computerised statement of the credit card held by the complaint.   But they have not produced it.  There is deficiency in service and unfair trade practice on the part of the opposite parties which caused great loss and irreparable injury to the complainant.  There is no need to hear the maintainability of the case as the forum has already heard and found that the case is maintainable

          In view of the above pleadings the points that arise for consideration are:-

1.  Whether there is deficiency in service or any unfair trade practice on the    part of the opposite parties?
2. Whether the complainant is entitled to get the reliefs as prayed for?
3. Relief and costs.

Evidence on the side of the complainant consists of oral evidence of PW1&Ext.P1 to P26 documents.  Opposite party 1&2 have not adduced any oral evidence, however got marked Ext.D1  Both sides have filed notes of argument.

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Point No.1&2

Inorder to avoid repetition of discussion of materials these 2 points are considered together.  The following are the admitted rather undisputed facts. The complainant is a credit card holder of Union Bank  of India(1^st opposite party).  She had taken the credit card bearing No.4391550000050461 through    2^nd    opposite party   which is   Kottiyam Branch of the 1^st opposite party,  that on 1^st November 2012 at about 4 am the complainant has received a message in her mobile phone  that the fraudulent transaction of Rs.70032.01 equalent  to US Dollar 1258.60 taken place in her credit card facility by creating a duplicate card using her credit card details with her credit card number and used  at the Oman Airways at Dar-El-Salaamts in Africa and that on getting the above information she contacted the call centre of the 1^st opposite party over telephone and informed  about the above fraudulent     transaction    committed by unknown persons. The complainant would also allege that the bank staff has colluded with the outsiders in committing the fraud.  The bank failed to keep the secret of the transaction and hence there is unfair trade practice  and deficiency in service on the part  of the bank.  However the opposite party would content that the alleged defrauding transaction is with the knowledge of the complainant and therefore  the opposite party bank has no liability.  According to the opposite parties reluctance of the complainant to lodge a complaint before the police authorities itself   point  towards the collusion  of  the complainant in the alleged transaction.  It is also contented by  the opposite parties that the claim of the complainant to the effect that the alleged transaction is blocked by the opposite party is incorrect that  the securedness  of the credit card is not only  to the card holder.  However the opposite party would further content  that they have made refund of the amount on 10.05.13.  But the complainant would deny the claim of refund.  According to the complainant no such refund has been made by the opposite party nor given any notice to the complainant informing

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the refund if any made and on  verification of  statement of account no such refund of the amount has been seen made.

During cross examination of  PW1 the opposite party would suggest that on 10.05.13 an amount of Rs.79018.35 has been given credit adjustment  in the account of  the  complainant.  But according to PW1 she has not been received any  such intimation.  However as per Ext.D1 statement of accounts it is clear that an amount of   Rs.79018.35 has been credited to the complainant but that fact was not intimated to the complainant.  In view of Ext.D1 statement it is  crystal clear that what has been lost from the account of    the    complainant by way of   defalcation has been  given credited to her account.  In the circumstance the complainant is not entitled  to get  back  the amount as prayed in the relief portion.  However the materials available on record would indicate that the defraud has been committed in  the  account due to the lapse and latches on the part of the opposite parties.  It is clear that both the O.T.P and Smart Chip Cards are safeguards from cloning the credit cards by fraudsters making fraudulent transaction.  But unfortunately the credit card given to the complainant is not with either O.T.P or Smart  Chip Cards.  This omission on the part of the Union Bank of India is a gross negligence which amounts to unfair trade practice and deficiency in service due to which the complainant met with irreparable injury and loss of money and mental agony.  It is further to be pointed out that  inspite of intimating the fact of withdrawal of amount  from the account of the complainant , the  officials of the opposite parties have not seen taken any action against the persons who defrauded the bank as well as the complainant.  The opposite parties have also failed to keep the secrecy of the credit card operations.  In the circumstances there is deficiency in service and unfair trade practice on the part  of the opposite party No.1&2.  It is also brought out in evidence that the complainant has sustained mental agony apart from the loss sustained to her even if the amount has been given back  by giving

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credit to her account. In the circumstance the complainant  is entitled   to get an order of injunction  sought  for compensation for the mental agony and costs of the proceedings.  The point answered accordingly. 

     In view of  the finding with record  to point No.1&2 we are  inclined to allow  the complaint in part in the following terms.

1. The opposite party No.1&2 are restrained from  proceeding against the complaint with regard to the fraudulent transaction alleged in this case and also debiting any charges in connection with the said fraudulent transaction from the credit card account of the complainant.
2. The opposite party No.1&2 are also directed to pay compensation to the tune of Rs.10,000/- to the complainant for the mental agony and other expences incurred by the complainant in connection with the above fraudulent transaction using  her credit card.
3. The opposite parties are also directed  to pay Rs.5,000/- as costs of the proceedings.

The opposite parties are directed to comply with the direction No.(i) to (iii) within  30 days from the date of receipt of copy of this order failing which the complainant is at liberty to proceed against the opposite parties No.1&2 under Section 25 of the Consumer Protection Act and realise Rs.10000/-  with interest @ 12% p.a  from the date of complaint till realisation with costs Rs.5000/- from opposite party No.1&2 jointly and severally and its assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  9^th   day of  August 2019.   

E.M.Muhammed Ibrahim:Sd/-

                                                                        S.Sandhya Rani:Sd/-        

                                                                         Forwarded/by Order

                                                                         Senior Superintendent

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INDEX

Witness examined for the complainant:-

PW1:-Jaya Yesodharan

Documents marked for the complainant:-

Ext.P1&P2:- Photo copy of  E-mail message

Ext.P3:- Photo copy of  E-mail message

Ext.P4:- Photo copy of  E-mail message

Ext.P5:- Photo copy of  E-mail message

Ext.P6:- Photo copy of  E-mail message

Ext.P7&8:- Photo copy of  E-mail message

Ext.P9:- Photocopy of letter dated 09.01.2013

Ext.P10:-Copy of letter dated 09.01.2013(Union Bank of India)

Ext.P11:-Copy of letter dated 21.01.2013

Ext.P12:- Copy of letter dated 26.04.2013(Office of the Banking Ombudsman)

Ext.P13:- Copy of letter dated 16.04.2013(Union Bank of India)

Ext.P14:-Copy of certificate dated 24.06.2010(Union Bank of  India)

Ext.P15:-Statement of account dated 27.05.13

Ext.P16:-Copy of passport

Ext.P17:-Detailed description of how credit cards are cloning

Ext.P18:-One time password  FAQS

Ext.P19:-Description of fraudulent transactions

Ext.P20:-Description-Credit card fraud-Kotak Mahindra Bank

Ext.P21:-Description -6 Banks, Telecom Firm to pay for credit card frauds

Ext.P22:- Description-Malwani resident arrested in Rs.1.65 crore credit card

Ext.P23:-Description-British tourists hits by 150 m Pound credit card scam

Ext.P24:-Description-13 Indians charged in biggest credit card fraud in US

Ext.P25:-Description-Industrialist Birla falls victim to credit card fraud

Ext.P26:-Description-Malayalamanorama daily

Documents marked for the opposite party:-

Ext.D1:- Copy of transaction history information.

                                                                                   E.M.Muhammed Ibrahim:Sd/-

                                                                       S.Sandhya Rani:Sd/-        

                                                                       Forwarded/by Order

                                                                       Senior Superintendent