Chandigarh

StateCommission

A/39/2022

Naveen Daryal - Complainant(s)

Versus

HDFC Bank - Opp.Party(s)

Brijendra Singh Bajwa Adv.

24 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	39 of 2022
Date of Institution	:	05.04.2023
Date of Decision	:	24.02.2023

 

 

 

 

 

 

Sh. Naveen Daryal, aged 53 years son of Sh. Om Parkash Daryal, resident of House No.2528-B, Sector 47-C, U.T., Chandigarh.

…..Appellant/Complainant.

VERSUS

HDFC Card through its Manager, S.C.O. No.145-146, Sector 17-C, Chandigarh.

…..Respondent/Complainant.

 

 

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MR. RAJESH K. ARYA, MEMBER

 

Argued By:-      

Sh. Brijindra Singh Bajwa, Advocate for the appellant.

Sh. A.P.S. Sehgal, Advocate for the respondent (on VC).

 

PER  RAJESH K. ARYA, MEMBER

                   This appeal has been filed by the complainant Sh. Naveen Daryal (appellant herein) against order dated 04.03.2022 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh [in short ‘District Commission’], whereby his consumer complaint No.558 of 2021 has been dismissed by the said Ld. District Commission with liberty granted to the appellant to approach a Civil Court of competent jurisdiction for Redressal of his grievance by observing that the matter involved complicated and complex questions of law and facts.

2.             Briefly stated the facts as culled from the impugned order passed by Ld. District Commission are that the appellant went to Karnal and filled the fuel from the petrol pump and transaction of Rs.1,000/- was made through debit card. He also received a message from the bank for deduction of the said amount. However, the complainant came to know that the amount was disbursed from the bank to somebody without receiving any message from the bank side on the same very date i.e. 07.07.2019. He blocked the card immediately and lodge a complaint with the Bank for unauthorized withdrawal of more than Rs.45,000/- by using PAYTM. He also informed the bank for illegal transaction without receiving any message from the Bank. The respondent gave assurance to the appellant that within two months, the money would be returned in his account but no amount was returned. The appellant again made a written complaint to the respondent through email and also filed the cardholder dispute form on 01.10.2019. Thereafter, he lodged a complaint with Cyber Cell on 14.01.2020. The police found out the illegal withdrawal from the bank through Paytm and the amount was transacted in the West Bengal. Since whole of the control was lying with the respondent, therefore, alleging deficiency in service and unfair trade practice on its part, the appellant had filed complaint before the Ld. District Commission.

3.                Despite service of notice upon opposite party (respondent herein), when nobody appeared on its behalf, the opposite party was proceeded ex-parte on 18.02.2022 by the Ld. District Commission.

4.                The order of the Ld. District Commission has been assailed by the appellant/complainant mainly on the ground that the Ld. District Commission did not appreciate the facts of the case and wrongly concluded that the complaint required evidence to be led and witness to be cross examined, especially in the light of the fact that the respondent is exparte and had not bothered to appear before the Ld. District Commission. It has been stated that the debit card was in possession of the appellant all the time when the illegal transactions were made and therefore, the card of the appellant was hacked or forged by some third party that too when the transactions had taken place remotely, several miles away from the actual location of the appellant, for which, the Bank is liable. It has further been stated that the appellant, after getting the message from the Bank regarding deficit amount, immediately informed the HDFC Bank regarding the fraudulent and illegal transactions and hence, the liability lies on the respondent bank for restoring the said amount to the appellant.

5.                On the other hand, in their written arguments, the respondent has submitted that the dispute is with respect to PAYTM transactions carried out via debit card of the appellant and the statement would reveal that the total amount of disputed transactions is not Rs.45,000/- but in fact Rs.34,000/-. It has further been submitted that the transactions are debit card transactions to transfer money in PAYTM application and the said transactions are authorized transactions since the transfers cannot take place without filling the details of debit card and the same further require an additional authorization/verification or OTP or password, as the case may be, depending on customer to customer basis as to what method is preferred for transfer. It has further been submitted that the additional/second level verification can only be done by person privy to the credentials. It has further been submitted that any person who has carried out transactions needs to have a knowledge of PIN or OTP or password of the debit card holder, which was explained to the appellant via email dated 24.10.2020. It has further been submitted that PAYTM is a different platform/entity altogether, which has not been made a party to the complaint. It has further been submitted that the banks are guided and governed under the circulars and guidelines laid down by the Reserve Bank of India and the appellant did not report his grievance of the alleged unauthorized transactions, within the stipulated time frame of 7 days. It has further been submitted that as a matter of fact, first time; it was reported only on 21.07.2020 through card dispute form, which was after one year of the last disputed transaction carried out through debit card of the appellant. It has further been submitted that the complaint filed before the Police is belated dated 15.01.2020, almost after 1.5 years of last transaction and the investigation report or any further document or any compliance carried out by police in last three years has not been filed by the appellant. It has further been submitted that in the light of RBI circular, the respondent is not liable to compensate the appellant and without prejudice, it has been submitted that the transactions carried out are authorized transactions. Lastly prayer for dismissal of appeal has been made.

6.                After considering the rival contentions of the parties and going through the material available on record, we are of the concerted view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter. However, before proceeding further, it may be stated here that simply because the matter is complicated, the matter should not be relegated to the Civil Court in the light of judgment of CCJ Chambers Coop. HSG Society Ltd. v. Development Credit Bank Ltd. 111 (2003) CPJ 9 (SC) : 2003 CTJ 849 (SC) (CP) as well as  Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi III (2002) CPJ 8 (SC) : JT 2002 (6) SCC 1,  wherein the Hon'ble Supreme Court has held that that the Consumer Fora would have the jurisdiction to adjudicate complicated questions/issues of facts and law arising out of the complaint under the Consumer Protection Act.

7.             Bare perusal of statement of account of the appellant appended along-with his complaint as also in appeal file, clearly reveals that the disputed transactions between the period from 19.06.2019 to 05.07.2019 were made through PAYTM POS DEBIT, which could not, at all, be said fraudulent, as alleged. Admittedly, it is not the case of the appellant that his ATM/Debit Card was stolen or lost. Against these transactions, the recipient’s names have not been depicted in the statement. Not only these transactions, there is one more transaction dated 08.06.2019 for Rs.1,500/-, against which, recipient’s name is also not mentioned. The appellant has not disputed this transaction dated 08.06.2019. Though the appellant has averred in Para 6 of his complaint that he filed the Cardholder Dispute Form on 01.10.2019 and annexed copies of email dated 01.10.2019 alongwith his complaint as Annexure C-1 yet the admitted position on record is that actually, he submitted the Cardholder Dispute Form only on 21.07.2020, Annexure C-3.  Thus, it cannot be made out of email dated 01.10.2019, whether the appellant submitted Cardholder Dispute Form on 01.10.2019 itself, when Annexure C-3 says otherwise. Moreover, it cannot be accepted at this belated stage that the appellant did not notice the aforesaid alleged disputed transactions for complete one year. Nobody is expected to be so negligent in taking due care of his account so far as debits are concerned. He did not deem it appropriate to implead PAYTM as a party to his complaint filed before Ld. District Commission, so as to prove his case of alleged fraudulent transactions. As regards the averment that the appellant never received any SMS with regard to the alleged disputed transactions from the Bank and noticed it almost after a year, cannot be accepted, being an afterthought. Thus, no fault or deficiency in service can be attributable on the part of the respondent – Bank, so far as the alleged disputed transactions are concerned. We would also like to add here that  Paytm All in One POS is a portal device that not only allows merchants to accept card and QR payments but also has EMI feature enabled and its benefits include ‘Multiple Payment Methods’ as it accepts payments through different modes – Paytm Wallet, all UPI based apps, Debit & Credit Cards & cash. In case of third party website or app using Paytm Account, OTP is always received for verification on the registered mobile number before one can proceed to pay. Without OTP, it is not possible to make transaction through PAYTM POS DEBIT mode. No one can get access to the Paytm application until or unless one has shared the passcode with somebody or enabled another person's fingerprint sensor. Therefore, in the instant case, the alleged disputed transactions cannot be said to be fraudulent ones and were authorized debit card transactions carried out to transfer money into Paytm account.

8.                For the reasons recorded above, the appellant has miserably failed to make out any case of deficiency in rendering service on the part of the respondent. Accordingly, the appeal, being devoid of any merit, is dismissed with no orders as to costs.

9.                Certified copies of this order be sent to the parties free of charge.

10.              File be consigned to Record Room after completion.

Pronounced

24.02.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

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