Date of Filing: 17.10.2016
Date of Order:11 .03. 2020
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B., PRESIDENT
HON’BLE Sri K.RAM MOHAN, B.Sc. M.A L.L.B., MEMBER
HON’BLE Smt. CH. LAKSHMI PRASANNA, B.Sc. LLM. (PGD (ADR) MEMBER
On this the Wednesday the 11th day of March, 2020
C.C.No.489 /2016
Between
Sri Mrs. Vibha Jalan,
W/o. Hemant Jalan,
Aged about 53 years,
R/o. Plot No.351, Road No.23,
Jubilee Hills, Hyderabad – 33. ……Complainant
A n d
Kotak Mahindra Bank,
Uptown Jubilee, Jubilee Hills CHS,
Road No.36, Jubilee Hills,
Hyderabad – 500 033,
Rep.by its Manager. ………Opposite party.
Counsel for the complainants : Mr.V.Basava Raju
Counsel for the opposite Parties : Mr. B.Ravindra Reddy
O R D E R
(By Smt. CH. Lakshmi Prasanna,B.Sc. LLM (PGD ( ADR)., Member on behalf of
Bench)
1) The complaint is preferred u/sec.12 of The Consumer Protection Act against the Opposite Party alleging deficiency of service for wrongfully debited amount of Rs.2,82,900.18/- by unauthorized use of her lost debit card during their foreign trip to Spain, and hence seeking a direction for payment of the claim amount of Rs.2,82,900.18/-, and Rs.1,50,000/- towards compensation and costs of litigation.
2) Factual matrix comprising the case of the complainant, shorn of details, is that the complainant availed from the Opposite Party, the Kotak Mahindra Privy league Signature Debit Card facility including complimentary insurance benefit coverage upto Rs.4,00,000/- towards lost card liability. Unfortunately, on 12/6/2016, the complainant lost her Kotak Mahindra Debit Card along with other cards kept in her black wallet in Maremagnum Mall loacted in Moll d'Espanya, Barcelona, Spain, during their cruise Holiday from 7/6/2016 to 12/6/2016. Apparently, the last transaction with the Kotak Mahindra Debit Card was a withdrawal of 150 Euros around 16.30.pm through the Kotak Mahindra Card from an ATM opposite H& M stores in the said Mall and thereafter the complainant found her wallet missing when she wanted to pay for a purchase in Natura Shop. To her utter shock, the complainant received six messages on her cell phone that 600 Euros (equivalent to Rs.47,150.03/- ) in each transaction totalling to 3600 Euros ( equivalent to Rs.2,82,900.18/-) was withdrawn through her Kotak Mahindra Card from an ATM in Bancosabadell which is at a distance from the Maremagnum Mall. Immediately, the complainant took steps to block all her cards including AXIS Bank, CITI Bank. As the Opposite Party was not reachable, the complainant contacted the Relationship Manager, Chief Manager, of the Jubilee Hills Branch of the Opposite Party and also managed to lodge a complaint with the Vice President, Retail Institutional & Government Business (South) of the Opposite Party stating that her lost card was being misused and filed a complaint/FIR with the Director General of Police, Home Department, Government of Catalonia. Having been assured by the Opposite Party not to worry because her Debit Card has insurance coverage, the complainant wrote a letter dt.15/6/2016 annexing the FIR filed before the DGP, Government of Catalonia, requesting for the fraudulently debited amount but the claim was rejected by the Opposite Party through their letters dt.4/7/2016, 14/6/2016 and 17/6/2016 stating that the alleged six unauthorized transactions were done after proper authentication using the password. The Opposite Party refused to honour her request to make good for the loss incurred due to the unauthorized usage of her lost card, hence this complaint.
3) In their written statement, the Opposite Party, while denying deficiency on their part, contended that the alleged six transactions of the complainant's debit card at an ATM outlet can be done only by using the PIN number, which could be exclusively known to the complainant-customer, and hence the above transactions could have occurred due to the negligence of the complainant in maintaining the secrecy of the PIN number and hence not entitled for the claim as prayed for in the complaint.
4) In the enquiry, the complainant filed his evidence affidavit reiterating the averments in the complaint supporting his claim with 7 documents including the complaint with the DIG, Home Department, Barcelona, Insurance policy, correspondence e-mails with the Opposite Party regarding the lost card and unauthorized transactions, request for insurance claim, and copies of letters from other banks. The Opposite Party filed their affidavit and the Insurance Policy was marked on their behalf..
5) Based on the facts and material brought on record, and written arguments submitted by both the parties, the following points have emerged or consideration:
- Whether the complainant could make out the case of deficiency of service on the part of the Opposite party?
- Whether the Opposite Party is liable to make good for the loss incurred by the complainant through the unauthorized use of her lost debit card?
- Whether the complainant is entitled for the claim/compensation made in the complaint and to what relief?
6) Point No.1 & 2 :- The undisputed facts of the case are that the complainant lost her debit card and six transactions amounting to 3600 Euros ( equivalent to Rs.2,82,900.18/- took place without her knowledge on 12/6/2016, in Maremagnum Shopping Mall in Barcelona, Spain. As per the Insurance Policy(Ex B1) filed by the Opposite Party along with a Memo filed on 4/3/2010, the complainant's debit card was covered under insurance for the period from 31/5/2015 to 30/5/2016, and in the absence of any material showing proof of renewal of the same, the insurance coverage is not available for the lost debit card.
Further, as per the RBI Circular DBR.No.Leg.BC.78/09.07.005/2017-18 dt.6/7/2017 and DPSS.CO.PD.No.1417/02.14.006/2018-19 dt.4/1/2019, "a customer shall be liable for the loss occurring due to unauthorized transactions in the following cases: (i) in cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials , the customer will bear the entire loss until he reports the unauthorized transaction to the Bank. Any loss occurring after the reporting of the unauthorized transaction shall be borne by the Bank........." Hence, even if the unauthorized transaction is reported/ complained within three days of such occurrence, the Opposite Party is only liable for the loss caused due to unauthorized use of the card occurring after the reporting of the unauthorized transaction. In the instant case, the complainant reported the loss of her debit card and also the six unauthorized transactions of withdrawal of an amount of 3600 Euros ( equivalent to Rs.2,82,900.18/- ) on 12/6/2016 to the Opposite Party, along with the (Ex A1) complaint/FIR lodged with the Director General of Police, Home Department, Government of Catalonia. That the customer-complainant lost the card due to negligence or misfortune is evident from the copy of the FIR Ex A1 and as per the terms and conditions of the card facility, any financial loss arising out of unauthorized use of alleged lost card till such time the Bank is notified of such loss of cad will be borne by the card holder. In fact, the Opposite Party has informed the complainant vide Letter dt.4/7/2016, that the alleged six transactions were permitted only after proper authentication by means of password/PIN Number and that thereafter the complainant's card was blocked on receipt of the complaint of the lost card on 12/6/2016 and there is no evidence on record of transactions after the reporting of the lost card. Thus there is no negligence attributable to the Opposite Party and not liable to compensate for the loss due to negligence of the card holder. Hence the point No.1 & 2 are answered against the complainant.
7) Point No.3:- In view of the above findings of this Forum, the complainant is not entitled for any of the claims.
In the result the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 11th day of March, 2020.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMIND
Nil
Exs. filed on behalf of the Complainant:
Ex.1 – Copy of the complaint dt. 12.6.2016 along with the translation submitted before Director General of Police, Home Department, Government of Catalonia.
Ex.A2 – Copy of the email dt. 15.6.2016
Ex.A3 – Copy of the guidelines for insurance cover of opposite party
Ex.A4 – Copy of the letter dt 4.7.2016 sent by the opposite party.
Ex.A5 – Copy of the Email dt.26.7.2016
Ex.A6 - Copy of letter dt.29.9.2016
Ex.A7 - Copy of letter dt14.11.2016
Exs. filed on behalf of the Opposite party
Ex.B1 – C D
MEMBER MEMBER PRESIDENT
