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American Express Bank 
Submit Complaint..
F.A.NO.471/2005
[Against order in C.C.No.477/2000 on the file of the DCDRF, Chennai (South)]
DATED THIS THE 5th DAY OF NOVEMBER 2009
American Express Banking Corp., |
Cyber City Tower 'C', DLF Building, |
No.8, Sector-25, DLF Phase II, | Appellant/Opposite Party
Gurgaon 122 002. |
Vs.
1. M/s.Marine Technologies, |
Rep. by its Partner Mr.Santhanakrishnan, | 1st Respondent/1st Complainant
43-B, M.G. Road, Sastrinagar, |
Chennai - 41. |
2. Kumar Sitaraman, |
S/o.Sitaraman, | 2nd Respondent/2nd Complainant
Suit 7-A, Kampala Arcade, |
114, Sir Thyagaraya Road, |
Chennai 600 017.
The respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to reinstate the American Express Card and to pay Rs.4 lakhs towards compensation and for cost. The District Forum allowed the complaint directing the opposite parties to pay Rs.50,000/- towards compensation and Rs.1,000/- towards cost. Against the said order, this appeal is preferred by complainant praying to set aside the order of the District Forum dt.28.06.2005 in C.C.477/2000.
This appeal coming before us for hearing finally on 27.10.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellant /Complainant : M/s.King & Partridge, Advocate.
Counsel for the Respondents/O.Ps : M/s.K.Senthil Kumar, L.Muniswamy,
J.Ranjani Devi, Advocates.
HON’BLE M. THANIKACHALAM J, PRESIDENT
1. The opposite party aggrieved by the order of the lower Forum in COP.477/2000, questioned the same before us, as appellant.
The brief facts leading to the complaint:
2. The complainants obtained American Express Cards for individual and Corporates and one such card is bearing No.3769-711622-81008. The complainant when tried to use this card in USA during 1999, he was informed that the card was suspended due to non receipt of annual membership dues. Upon information, the due was cleared by Demand Draft bearing No.008018, dated 13.10.99. Having credited the amount, the opposite party had cancelled the card without any proper reason, that too, when this card has no outstanding. The act of the opposite party, in canceling the Corporate card without any reason is arbitrary and discloses total deficiency of service and unfair trade practice. Even after the issue of notice, the card was not reinstated, thereby causing loss and sufferings to the complainants, which is quantified at Rs.4 lakhs. Hence, this petition is filed, to issue suitable direction to reinstate the American Express Card bearing No.3769-711622-81008 and for compensation.
3. The opposite party/appellant denying, the allegations in the complaint, adverse to them, inter alia, contended that the complainant who had obtained already a corporate card and personal card showing his name as Kumar Sitaraman, giving some other address, failed to pay the outstanding and even as on this date, the corporate card has an outstanding balance of US dollars 622.35 and the personal card Rs.1,38,171.51 and the steps taken by the opposite party to recover the amount, ended in vain.
4. After the lapse of nearly 3 years, the second complainant applied and secured a US Dollars billed corporate card in the name of Kumaran Sitaraman, giving first complainant's name. It is pertinent to note that in this application, he entered his name as Kumaran Sitaram, while in the previous application it was Kumar Sitaraman. On the second occasion, the card would not have been issued, if the complainant had not changed his name and residential address. Even in the present case, the second complainant delayed payment, four times, that even the annual fee remaining unpaid for three months, despite information by this opposite party. The card in question No.3769-7116228-1008 was issued in the name of a card member Kumaran Sitaraman and not Kumar Sitaraman. When it came to the notice of the opposite party, about the outstanding even upto October 1999, they have no option except to suspend the card, in view of the fact the card member was not even able to pay his due, regarding annual membership dues. The act of this opposite party cannot be termed as deficiency in service or arbitrary cancellation of the card. The second complainant had not only withheld payment for his dues on time, on the present card in issue, but also had outstanding balance on the previous two cards till date and in this view the suspension of the card cannot be found fault. As per the agreement entered into between the parties, this Forum had no jurisdiction. It is prayed that the complaint may be dismissed with cost.
5. The District Consumer Disputes Redressal Forum, Chennai (South) on the basis of the above materials and evaluating the documentary evidence, came to the conclusion, that the opposite party arbitrarily cancelled the card when there is no due and it should be construed as deficiency in service, that too, considering the non reply or specific demand from the opposite party calling upon the complainants to pay the amount due. Thus concluding only a direction has been issued for the payment of Rs.50,000/-, towards deficiency in service probably negativing the another prayer, namely to reinstate the American Express Card in question, thereby, causing grievance, resulting this appeal.
6. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
7. The Learned Counsel for the appellant urged before us that the lower Forum has not only failed to understand the case of the parties properly, but also failed to appreciate the materials placed before it, resulting miscarriage of justice, which should be set it right, by allowing the appeal. On the contra, it is the submission of the other side that the trial Forum properly evaluating the matter reached to the correct conclusion which does not require any interference. Giving our anxious thought, and meticulously scanning the documents placed before the Fora, we are of the considered opinion, that the District Forum has failed to appreciate the case from proper perspective, resulting improper order, thereby inviting our compulsory interference.
8. As submitted by the learned counsel for the appellant and as seen from the documents filed by the opposite party, the complainants had applied and obtained a corporate card bearing No.3769-719542-41004 and a personal card bearing No.3769-102586-11009. At that time, the second complainant was in the employment of M/s.West Inn Hospitality Services Ltd.,. It is also revealed by the documents, that he is not uniform in giving his name also while applying and obtaining the card. In the complaint, the second complainant's name is given as Kumar Sitaraman. The documents would indicate that he obtained the card in question also giving his name as Kumaran Sitraman. Originally, he had one passport giving some address and thereafter either after the expiry of that passport or otherwise, obtained another passport and giving said passport number, even not informing the expiry date of passport, obtained the card in question bearing No.3769-711622 81008 elsewhere in the year 1999. Admittedly, this card was suspended by the opposite party who has issued the same. Aggrieved the same, complaining that the cancellation of corporate card without any reason is arbitrary and discloses total deficiency of service even amounting to unfair trade practice, as said above, the complaint came to be filed for the reliefs, which reads:
(a) to reinstate the American Express Card bearing No.3769-711622-81008;
(b) to pay compensation of Rs.4 lakhs to the complainants for the physical hardship, mental agony and torture suffered by the complainants due to the gross deficiency in service and unfair trade practice of the opposite party.
9. The trial Forum has granted the relief which reads " In the result, the opposite party is directed to pay a sum of Rs.50,000/- towards deficiency in service and mental agony, etc., and Rs.1,000/- towards costs of this complaint to the second complainant, within a period of two months, from the date of receipt of this order, failing which, the second complainant is at liberty to invoke Section 27 of the Consumer Protection Act, 1986, against the opposite party." thereby showing the main relief, namely, the first relief was not granted, which is not challenged by the complainant before us and the reason is not known. When the first relief is not granted, fixing the deficiency in service, not reinstating the card, question of granting compensation will not arise. By reading the lower Forum order also, we are unable to understand, how the trial Forum had fixed the compensation of Rs.50,000/-, when it had not granted, the first relief sought for by the complainants. Be it as may. Now let us see, whether the lower Forum is justified in granting the compensation of Rs.50,000/- for which, whether it had assigned any reason and our efforts ended in vain as if, a man searching a black cat in the dark, and in fact we can say no finding also regarding the deficiency of service. The order say as if, the burden is upon the opposite party to prove the averments in the complaint, whereas, as if there is no responsibility upon the complainant to prove the averments. The trial Forum has not even discussed the effect of Ex.B1 to Ex.B4 and it has not stated whether those documents revealed anything, either in support of the complainants or in support of the opposite party. In our opinion, the trial Forum grossly failed to appreciate the evidence and unilaterally taken a decision, probably considering that there was no proper reply for Ex.A5. If a person has failed to issue reply notice, it will not lead to an irresistible conclusion, that he had accepted the case in the notice or later on he is not entitled to challenge the same. Unfortunately, this view alone appears to have been taken by the lower Forum, which should not be, in deciding the rights of the parties. Forgetting the lapses, now let us find out who is at fault, whether the opposite party is justified in canceling the card in question.
10. It is settled position of law, that the card remains the property of person who issued namely the appellant herein and it has every right to revoke the same or suspend the same, as and when it felt that the continuation of the card would cause damage to the company by the conduct of the cardholder, that too, considering the previous conduct of the cardholder, when it came to its knowledge about the lapses committed by him previously, of course which had not taken into account while issuing the subsequent card. As pointed out by supra, when he had applied individual card, he has given his name as Kumaran Sitaraman, not challenged, whereas now he given his name as Kumar Sitaraman. Similarly, when corporate card applied, name was given as Kumar Sitaraman. On these two applications, two cards were issued and they are, No.3769 719542 41004 and 3769 102586 11009 respectively. For those cards, as from the documents and as submitted by the learned counsel for the appellant also, still there is a balance which is also not challenged even by way of reply affidavit. For Card No.3769 102586 11009, the balance is shown as Rs.1,33,499/- and for Card No.3769 719542 41004, the balance is shown as 277.51 US Dollars as on 08.01.98. Probably, suppressing the above facts, giving different address, Card in question bearing No.3769 7116228 1008 was obtained. Admittedly, even as pleaded in the complaint, there was a balance which was cleared only on 13.10.99. As submitted by the learned counsel for the appellant, there was repeated delayed payments, and considering the conduct of the second complainant, after holding the third card, as well as defaulted committed by him previously, for first and second card, the opposite party had rightly suspended the card since they have decided as per the agreement, he should not be allowed to use the card continuously, being a chronic defaulter. The person who changed his name, who has not paid the amount properly, cannot accuse the opposite party as if they have improperly cancelled the card and in this view, there is no deficiency of service, on the part of the opposite party and therefore he is not at all entitled to any compensation. The fact being so, the grant of compensation of Rs.50,000/- without any basis should be up set, for which, the appeal deserves acceptance.
11. In fine, the appeal is allowed with cost, setting aside the order of the lower Forum in COP.477/2000 and dismissing the same. The cost of Rs.1,000/- in the appeal should be paid by the respondents/complainants, to the appellant/opposite party.
The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellant/opposite party, duly discharged.
