CONSUMER DISPUTES REDRESSAL FORUM-VII, SHEIKH SARAI, NEW DELHI-110017
Complaint No. DF. VII/774/2009
In the matter of :
Sh. Manish Marwah & Mukesh Marwah
R.K.Puram, New Delhi-110 022. ….Complainant
1. M/s The Mobilestore Limited, New Delhi. ….Opposite Party-I
2. Citi Bank, NA, Jeevan Bharti Building, New Delhi-110001.
Also: Customer Care Centre at Delhi Of Citi Bank. ….Opposite Party-II
3. HSBC Bank, Sector-18 Noida. UP. ….Opposite Party-III
O R D E R
(HARSHALI KAUR, MEMBER)
Complainant No. 1 has been issued Credit Card No. 4385-8715-6799-0016 (herein after referred to as Primary Card) and Complainant No. 2, held add – on Card No. 4385-8715-6799-0107 (herein after referred to add – on card) of the O.P-II.
The Complainant’s were admittedly using a Primary and an add – on card. It is alleged by the Complainant NO. 2 that on 12.6.09, at around 8 P.M. the add – on card alongwith the Complainant’s wallet, papers, license, debit and Credit Cards went missing. At 9.22 PM. he got an intimation that on his add – on card three transactions were held at O.P-I mobile store which were for Rs. 12,419/-, Rs. 9229/-, and Rs. 10,499/-. On 13.6.09 Complainant No. 2 informed O.P-II to block the add – on card, disputing the said transactions. NCR No. 1042/2009 was also registered on 14.6.09.
The Complainant’s allege that the Credit Card was misused by some unknown person at the showroom of O.P-I. The Complainant registered complaints of the missing Credit Cards on the customer care of O.P-II who are arrayed as O.P-III. They got the matter investigated through Sharma Investigation. The Complainant’s alleged that when O.P-I produced the transaction slips it was clearly visible that the signatures on all 4 merchant Credit Card slips had shown different initials which were issued by O.P-I and differed with signatures of the card holders on the back of the Credit Card, thereby showing that O.P-I was negligent and willfully allowed the impostors to misuse cards belonging to the Complainant’s. The Complainant’s also allege that the copy of ID proof submitted by the said unlawful purchasers to O.P-I which O.P-I has produced, clearly shows that the signature of the said ID proof does not match the signatures on the merchant Credit Card slips showing negligence on the part of O.P-I. Also the unlawful person who purchased 4 mobiles in one go, did not alarm the O.P-I enough to verify the credentials of the person, which is their moral legal duty which according to the Complainant goes to show that O.P-I was mindful of the transaction being unlawful. So far as O.P-II and O.P-III, are concerned, the Complainant alleges that the O.P.’s have unlawfully debited the accounts of the Complainant’s with heavy charges and interests as the transactions were not made by the Complainant’s.
The Complainant’s getting no respite for their grievances sent a legal notice demanding recovery of losses and damages for problems suffered by them to the O.P.’s on 28.8.09. Getting no reply to the notice from the O.P.’s the Complainant’s filed the present complaint U/s 12, Consumer Protection Act, 1986 on 5.10.2009 alleging deficiency-in-service and unfair-trade-practice causing monetary loss, physical and mental harassment to the Complainant’s and prayed for directions to the O.P.’s to write off and rectify the accounts of the Complainant No. 1 Manish Marwahs debit balance regarding the unlawful transaction, a sum of Rs. 10,000/- from each O.P. towards compensation for physical and mental agony and Rs. 50,000/- as punitive damages from each O.P. and any other order deemed fit by the Forum.
The complaint was dismissed for default on 20.10.09 due to non-appearance of the Complainant’s by this Forum but restored later on their application vide order dated 11.11.09 to its original number notice was issued to O.P-I, O.P-II and O.P-III who filed their respective replies. Rejoinder and evidence by way of affidavit were filed by the Complainant and then the O.P.’s filed their respective evidence. Written Argument were also filed by the Complainant and O.P-II, O.P-III. O.P-I however did not file Written Argument.
We have heard the Ld. Counsel for the Complainant and O.P-II and O.P-III also presented their case orally before this Forum. O.P-I did not appear despite issuing notice intimating date of Final Argument.
O.P-I in their evidence filed by way of affidavit of Sh. Prashant Kumar Sigh, Store Manager, stated that the Complainant’s have filed a complaint which is baseless and false and that the transaction done with the Credit Card on 12.6.09 was valid and authorised by the respective banks i.e., O.P-II and O.P-III and O.P-I merely followed the due procedures set down by the respective banks and it was the primary duty of the Complainant’s themselves to block the cards after realising that their wallet had been missing but O.P-II and O.P-III were unable to block the card in time which shows that it could be due to negligence of O.P-II and O.P-III and that O.P-I is not liable in any way. He further stated that the signature on the Credit Card and slips of shopping matched and valid copy of driving licence of the purchaser had also been taken at time of sale as per instructions and procedure prescribed by O.P-II and O.P-III and since there were no instruction from O.P-II or O.P-III to verify the document and addresses of any purchasers at time of shopping with the Credit Card nor were there any rules for the same, the transaction was completed by the O.P-I after due verification. Further, a person who has a valid Credit Card can do as much shopping and Complainant’s averments contrary to the same have no bearing on the case and therefore the complaint is vexatious and false and is liable to be dismissed.
In the affidavit filed by Sh. Jagdish Salwan, for O.P-II, it is stated that the Complainant’s have failed to prove deficiency-in-service on the part of O.P-II and no cause of action has arisen between the Complainant’s and O.P-II. As per policy followed by O.P-II bank in cases of loss or damage of Credit Card, the card account is blocked on receipt of information from the card member and the bank assumes liability thereon. Since the transactions mentioned in the complaint were prior to any receipt of information of loss / theft of the Credit Card in question by O.P-II no liability can be fastened on O.P-II. The Complainant’s failed to inform O.P-II immediately after the card was lost / stolen and only got the card blocked after they received the confirmation call from the personnel of Fraud Detection Team of O.P-II with always calls to confirm transactions, when there are continuous transactions from a card account of any member to prevent cases of fraud and when there is a valid transaction from the Credit Card O.P-II is obliged to pay the acquiring bank on receipt of demand of payment from the acquiring bank for said transactions.
Sh. Piyush Tiwari, Principal officer of the O.P-III bank filed evidence by way of affidavit on behalf of O.P-III stating that admittedly the Complainant was issued a Credit Card by O.P-III alongwith an add – on card and he agreed to abide by the terms and conditions of the Credit Card Service Guide which was sent to the Complainant and which states that in case of a lost Credit Card the card holder would immediately report the occurrence on the emergency assistance Help Line in writing or calling in the Customer Care Service Centre and that the card holder would not be liable for any transactions made on Credit Card only after reporting the loss / theft / misuse to the bank. In the present Complaint however the said card was allegedly stolen on 12.6.09 at 8.00 P.M. but O.P-III was intimated about the loss of address on card on 12.6.09 at 23.33.59 hrs. as per Ex O.P-III/C wrongly mentioned in the affidavit as 21.03.59 hrs. The disputed transactions were made prior to the time of intimation of loss and hence O.P-III is not liable for said transaction. The Complainant neither sent any written confirmation non an FIR, mandatory requirements as per the Credit Card holders agreement. O.P-III have stated that the present complaint does not constitute, any deficiency-in-service or unfair-trade-practice as contemplated U/S 2 (i) (f) (g) and (r) of Consumer Protection Act, 1986 against O.P-III and deserved to be dismissed on grounds of being beyond the scope of the Act.
We have thoughtfully considered the rival contentions of the parties and carefully perused the document placed on record.
On merit, we find sufficient force in the complaint filed on 15.10.09 wherein the Complainant No. 2 lost his wallet and thereby lost Credit Cards, debit cards, licence and pan card as is evident from the FIR that was registered on 14.6.09 at 3.00 P.M. at the police station R.K.Puram, New Delhi. The Complainant lost his wallet by his own admission on 12.6.09 at 8.00 P.M. The Complainant No. 1, the primary card holder on 15.6.09 filed a customer dispute Form for the disputed transaction of Rs. 23,209/- made by the lost Credit Card issued by O.P-III. Simultaneously, 3 other disputed transactions took place with another of the stolen Credit Cards issued by O.P-II amounting to Rs. 12,419/- Rs. 10,499/- and Rs. 9229/-. The Complainant has testified that O.P-I was deliberately negligent and even though both the Complainant’s have not made the purchase of the mobile phones from O.P-I, O.P-I without verifying the ID of the person purchasing the mobile phones, allowed the transaction which O.P-II and O.P-III banks also approved despite the calls made by the Complainant to inform them regarding the stolen wallet carrying the add – on card. So far as the liability of O.P-I is concerned, there is no doubt that they did not act as expected of a prudent man. O.P-I allowed purchase of 3 mobile phones to an individual on the Credit Card in question without due care and caution. The initials on the merchant slips purported to by Mukesh Sharma – the Complainant No. 2 do not match when viewed by one with naked eye, O.P-I have not even filed any proof to substantiate that they verified the identity of the person making purchases of 4 mobile phones in one go at 20:40:22; 20:41:49; 20:43:08, 20:44:45; i.e., within less than 5 minutes on 12.6.09 and succeeds in 3 transactions. It could be possible either due to collusion between the merchant and the buyer or due to negligence on the part of the merchant i.e., O.P-I who was motivated to sell his merchandise without caring to know and verify the whereabouts of the customer.
In the instant case we find that O.P-I has not acted diligently and unwittingly become a privy to the fraud being played by the person who purchased on the Credit Card belonging to Complainant No. 2. Hence, O.P-I can be held guilty of deficiency-in-service as defined by Clause (g) read with Clause (o) of Sub Clause (i) of Section 2 of Consumer Protection Act, 1986.
Case as against O.P-II and O.P-III stands on different footing. According to the Complainant’s own case Complainant No. 2 lost his wallet on 12.6.09 at 8.00 P.M. and O.P-III are informed at 21:03:59 i.e. 9.04 P.M. one hour after the loss of the wallet. The purchases of Mobiles took place between 8.40 to 8.45 P.M. as evident from the merchant slips filed on record. Thus, the loss of the Credit Card in question is reported to O.P-III only after the disputed transaction had taken place. As per Annexure A filed by O.P-III every Credit Card is identified with Unique ID No. and when the bank is informed of the loss of a Credit Card they block further transactions on the said card, which O.P-III claim to have done in this case, to prevent any further transactions on the Credit Card in question. It is pleaded by O.P-III that such a card cannot be re-opened, a fresh card is issued provided the Credit Card holder requests for the same, subject to Credit Card holder to pay the entire standing liability including the one made prior to the intimation of loss of the card. It is further contented by O.P-III that the Complainant’s failed to pay outstanding amount of Rs. 41,049.10 P as due on 14.4.10 as per the statement of account Ex O.P W 3/B, and thus has become a non-performing Asset. Relying upon Clause 27 of the Card Member Agreement O.P-II have denied their liability for any deficiency-in-service or Unfair-Trade-Practice and we fully feel convinced, in the facts and circumstances of the case, O.P-II and O.P-III have promptly acted on the complaint of the Complainant’s and did whatever was required of them in preventing further misuse of the lost Credit Card of the Complainant’s. However, we find charging of interest on the amount of “disputed transactions” Unfair on their part especially when it is admitted that Credit Card in question was used by an unauthorised person and the amount in dispute is the liability of O.P-I as per their own claim that due to the negligence of O.P-I the Complainant incurred the alleged loss of Rs. 23,209/- prior to intimation to O.P-III bank about the loss of said Credit Card as one of the disputed transactions. The sole grievance against them as alleged by the Complainant is that O.P-II and O.P-III have been charging heavy interest on the disputed amount that they be directed to write off.
In this regard we are of the considered view that O.P-II and O.P-III though cannot be held liable for any deficiency-in-service, yet the Complainant’s are entitled to pay the outstanding as are receivable from O.P-I who in all fairness are liable to make good, the loss suffered by the Complainant’s due to their negligence.
Accordingly, allowing the complaint we direct O.P-I to pay a sum of Rs. 32,147/- (Rupees Thirty Two Thousand One Hundred Forty Seven Only) to the Complainant’s within thirty days of the receipt of copy of this order and the Complainant’s shall then pay to O.P-II and O.P-III the said amount against outstanding dues, where after O.P-II and O.P-III shall write off the amount without claiming any interest thereon and if requested by the Complainant’s shall restore the Credit Cards blocked on account of the loss of add – on card.
O.P-I shall also pay a sum of Rs. 15,000/- as compensation for mental agony and harassment including cost of litigation.
Order be complied within 30 days of the receipt of the copy of the order.
- Copy of order be supplied to the parties free of cost.
- File, thereafter, be consigned to Record Room.
Order Pronounced on 7th February, 2014.
(Smt. HARSHALI KAUR) (Shri S.K.SARVARIA)