ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the amount fraudulently and by mischief transacted by using add on credit card of his father, for refund of the same i.e., 1883.22 us dollars, amounting to Rs.1,80,000/- along with interest at 18% p.a., till the payment of the entire amount and for other reliefs as the Commission deems fit under the circumstance.

2.      The brief facts of the complaint are that;

The complainant has been issued a credit card bearing No.3769 4430 0660 201 by OP.  An add on card for the use of his family members was also issued which was given by him to his father who was traveling abroad.  It is stated that on 31.10.2019 at about 11.15 pm., to 11.35 pm., ISD, two transactions (1) in Microsoft store Houston and another at Apple store was transacted, which was not done by his father at America as he was in India itself. Immediately he blocked the said card by informing the same to the OP and also his primary card in the month of June 2020.  On verification he came to know that the details of the credit card/add on card was copied fraudulently and used by unscrupulous elements for which he brought the same to the notice of the OP and also to the Cyber Crime Police for investigation. The nature of transaction that has taken place is against to the rules set out by Reserve Bank of India in respect of credit card transactions.  If a person transacts with a huge amount in a short span of time, the bank has to decline the payment and enquire the same and upon satisfying that the transaction is a genuine one, to pay to the amount to the merchant. In this case, in respect of the add on card no message has been sent to the primary card holder and no message has been received.  There was abundant opportunity for the OP to not to pay the amount when the complaint in respect of fraudulent transaction was reported to the OP.  Normally credit card swipe takes 24 hours for payment to the merchant from the bank.  OP ought to have conducted an investigation with the help of the CCTV at the shop in which the fraudster said to have transacted.

3.      Inspite of the repeated request of the complaint, OP has not reverted the amount spent through the add on card and hence he had to issue a legal notice dated 13.10.2020 seeking refund of the same, for which OP requested to provide more information and even after providing the same also, OP did not revert the amount charged to his debit card account. The amount involved is huge.  Had the OP diligent enough, it would have stopped payment and would have enquired the same.  OP has not taken proper steps and hence there is deficiency in service and prayed the Commission to direct OP to refund 1883.22 us dollars equivalent to Rs.1,80,000/- along with interest by allowing this complaint.

4.      Upon the service of notice, OP appeared before the Commission and filed his version contending that as per the terms and conditions of the credit card, it  cannot be considered as deficiency in service, as there is no deficiency as defined u/s 2(6) and 2(11) of the C.P. Act.

5.      It has admitted that the complainant was given a credit card and an add on card and the limit for the said card was Rs.7,60,000/-.  Complainant has claimed 1,883.22 dollars for the fraudulent transaction alleged to have taken place by three unauthorized fraudulent transactions. Even in the complaint, complainant has not stated in respect of the amount involved in each transactions. The pleading is bald to that effect.  It appears that complainant has calculated @ Rs.96/- per dollar and has claimed the compensation, whereas at no point of time, the rupee rate per doller has not even crossed  Rs.90/-.  Though the complainant alleges fraudulent transactions taken place in October 2019, he kept quite all the while and issued notice for the first time during November 2020, almost a year after the incident for which no explanation is coming forth.

6.      It is further contended that after receiving the complainant a dispute was raised and registered under service request No.SR644365682 and the same was investigated. It was found that the merchant endorsed the transaction stating that the same was genuine and thus charge back request raised during November 2019 as per visa merchant card guidelines was declined.  It becomes clear that the transactions have been made through the add on card using the details which could have been used either with active or passive assistance from the complainant or his father.  Active assistance would be where the card holder himself has either used it for the transactions or has divulged the credit card details including pin to the persons known to him. Passive assistance could be negligence of the card holder, wherein he has compromised the confidential details of the credit card including the pin number.  Complainant is not definite as to when the transaction was done as his father was also travelling abroad as per the averments of the complaint.

7       The allegation that the RBI rules for credit card that if huge amount of transaction takes place in a hurried manner and in a short span the same has to have been declined by the bank is baseless.   Since the credit card limit given to the complainant/add on card holder is upto Rs.7,60,000/- the card holder can do the transaction in a single transaction or a multiple transaction to that limit.  Complainant was intimated the transactions and therefore SMS was not received by him is not a valid ground. There is no basis for the complainant to allege that OP could have verified the CCTV footings of the shops wherein the fraudster said to have been transacted.  The filing of the complaint by the complainant is a gross abuse of the procedure and law which is liable to be dismissed by imposing exemplary cost and prayed to dismiss the complaint.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that OP has issued a credit card and an add on card to the complainant the limit of which is Rs.7,60,000/- as per the say of the OP.  It is the specific case of the complainant that the said add on card which has given in addition to the card given to him was given to his father for his use.  It is also stated that his father used to go abroad. It is the specific case of the OP that the card has been swiped at the point of sale and the charge slip has been signed and hence the transaction is a genuine one made by the father of the complainant.  Complainant has also produced the copy of the pass ports of himself and of his father, wherein, as on the date of alleged transaction complainant and his father were not in Houston, USA.  As per the passport details produced they were in India only, as there is no endorsement by the immigration authrotieis that they have left India to USA during the said time. When this is taken into consideration, and further the specific stand of OP that the card was physically presented at the time of sale and charge slip was signed, cannot be considered at all and it is to be held ie., taken for the purpose of defence.

        11.   Complainant has brought to the notice of the fraudulent transaction with the OP immediately and got the add on card blocked, which shows that he was alert about the financial transactions.  OP ought to have investigated with the merchant from whom the alleged fraudster had transacted.  It was having ample opportunity to get the CCTV footage to investigate and to verify itself as to who had presented the credit card/add on card at the POS.  That would have been a very good evidence in respect of the stand taken by either of the parties. The transactions in respect of 1502 us dollars it is mentioned that card member present, card presented. In respect of 840 US dollars there is no mention of the presence of the member and presentation of the card.  In respect of the other transactions CM authentication manual signature verification by merchant.  Depending on these the OP has contended that the card was present physically and transacted personally by putting his signature to the charge slip, which cannot be held as true in view of the copy of the pass port produced by the complainant and hence the investigation made by OP regarding fraudulent transaction was not a sincere and honest investigation to cull out the truth.  Hence we are of the opinion that there is deficiency in service on the part of OP in not carrying out a fare investigation to detect the real fraudster responsible for the fraudulent transaction. Hence we answer point No.1 in the affirmative.     

12.   POINT NO.2:

Complainant has sought of refund of 1883.22 US dollars equivalent to Rs.1,80,000/- for which OP has taken an objection i.e., which is exorbitant and it works out to be Rs.96/- per US dollars and at no point of time the rupee rate was so much against one US dollars.  The said fraudulent transaction has been taken place on 31.10.2019.  We found over the internet that as on that day the value of the rupee is Rs.70.98 per dollar.  Hence OP is liable to charge back the said amount to the credit card account of the complainant.

13.   It is not made clear by both parties as to whether the complainant has paid the said amount to the credit card account or that OP has received the same.  In the absence of it, it is very difficult for the Commission to grant interest on the said amount.  Under the circumstance, we call upon both parties to file statement of accounts in respect of the payment/receipt, in respect of the said fraudulent transaction within 30 days of receipt of this order.  We clarify hereby that in case the complainant has paid and OP has received the amount, then, OP has to charge back the amount along with interest at 12% p.a.  If it has not received the said amount so far, then it has to charge back the amount and no interest is payable in that respect.  OPs are also directed to pay Rs.20,000/- towards damages for causing mental agony, physical strain and Rs.10,000/- towards cost of this litigation as complainant has engaged advocate spent money for his professional fee and also spent time money and energy in proceeding with this complaint, hence we answer point No.2 in the affirmative and proceed to pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund of 1883.22 US dollars to the credit card account of the complainant at the rate of Rs.70.98 within 30 days of receipt of this order. In case the complainant has paid and OP has received the amount, then, OP has to charge back the amount along with interest at 12% p.a.  If it has not received the said amount so far, then it has to charge back the amount and no interest is payable in that respect. 
3. OPPOSITE PARTY is also directed to pay Rs.20,000/- towards damages and Rs.10,000/- towards cost of this litigation to the complainant.
4. OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 21^ST DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Immigration report dated 11^th September 2019

Ex P2: Card Member Dispute form dated 01.11.2019

Ex. P3: Acknowledgement issued by the Cyber crime police, Bangalore

Ex P4: Reply given by ICICI Bank dated 04.02.2020 along with documents

Ex P5: Legal notice dated 11.11.2020

Es P6: Acknowledgement

Ex P7: Reply given by the ICICI Bank dated 28^th October 2020.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                 MEMBER                       PRESIDENT

HAV*