BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.113/2010

Dated this the 4^th day of April 2016

M/s Sree Gold Jewellery rep. by its   

Manager and Authorised Representative

K. Chandrasekaran, son of late Krishnamurthy

Having its business at No.141, Kosakadai Street

Puducherry – 605 001.

                                       ….     Complainant

Vs.

The Axis Bank, rep. by its Manager

Bussy Street, Puducherry – 605 001.

                    ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  M/s Law Solvers, Advocates

FOR THE OPPOSITE PARTY   : Baptiste Augustin, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986  to direct the Opposite Party to restore to the complainant's Account No. 20901020001447 the amount of Rs.18,520.42 wrongfully debited on 12.06.2009;  to pay a sum of Rs.50,000/- as compensation for mental agony and deficiency of service with interest and to pay a sum of Rs.10,000/- towards costs of this complaint.

2.  The case of the complainant is as follows:

          The complainant is a customer of the Opposite Party Bank with a current Account No. 209010200014447.  It is usual practice that some of the Complainant's customers make payments for purchases, though credit cards. To serve such customers the Complainant's has got installed in his showroom Electronic Data Capture Machine (EDC)  in the year 2008. Such being so the Complainant received instructions from the Opposite Party Bank to insist from customers a photocopy of the credit card in addition to a copy of a documents of identity, for payment over and above Rs. 10,00000. This practice is being followed by the Complainant till date.  All of a sudden in March 2010, while settling accounts, the Complainant found that his current account, Showed a debit of RS.18,520.42 on 12.06.2009. The Complainant was not aware of the reason for such debit and had been approaching the Opposite Party Bank  for Redressal but to no avail. The Complainant had only been orally informed that the debit is towards a credit wrongfully done on 26.04.2009 for a sum of Rs.19,400.00.  On 25.04.2009, the Complainant's account revealed a purchase for tatal amount of Rs.32,60000 by one Mr. S. Kumar from Madurai, under Bill No.277. The payment was made through Master card and citi Bank Visa card. The sum of Rs.1940000 wa with the Citi Bank Visa Card. The said amounts were credited in the Complainant's account. As per directions, the Complainant had obtained the obtained the copy of the credit cards and the driving license as proof of identity. The debit aforementioned was pertaining toi the amount swiped under the Citi Bank Visa Card.  Apart from the oral reasoning, the Complainant has not been given a cause for such debit despite requests and the Complainant sees no justifiable reason for the same to be withdrawn that too behind the Complainant's back. Finally the Complainant has written to the Opposite Party Bank on 18.06.2010 seeking clarifications. This letter has also fetched no fruitful result leaving my client with no other choice than to cause to be issued to the Opposite Party an advocate notice seeking clarifications and for restoration of the wrongfully debited amount. The said notice has been received by the Opposite Party bank, who have in turn issued a reply on 19.08.2010 raising untenable grounds and if is only as frantic effort to cover up their faults. The version of the Opposite Party that necessary documents had not been presented on time on request is totally false. In fact there was no such request and the Opposite Party is put to strict proof of the same. This childish attempt to blame is not expected of reputed bank, which the Opposite Party claims to be. The Complainant has stood by the terms of the agreement so far as his part is concerned. There has been no occasion that has arisen for the Bank to seek recourse to clause 11 of the Agreement. There is a clear deficiency in service and negligence on the part of the  Opposite Party which also amounts to breach of trust. The act of the Opposite Party in wrongfully debiting an amount of Rs.18,520.42 on 12.06.2009, from the Complainant's current account, without due notice to him, amounts to nothing less than deficiency in service. The complainant reserves his right to proceed separately for the offence. The Opposite Party has exhibited negligence amounting to breach of trust and clear deficiency in service promised to be provided and hence liable to compensate the Complainant for the mental agony which was totally uncalled for but for the act of the Opposite Party, apart from refunding the amount wrongfully debited. Hence this complaint.

3.       The reply version of the opposite party is as follows:

            Apart from denying the allegations of the complainant, the opposite party stated that the complaint is not maintainable in law.  Further the complainant requested the opposite party bank for installation of Electronic Data Capture Machine (EDC) by submitting an application from to the Bank and consequent thereto, the complainant also entered into an Agreement, dated 19.12.2008 with the Bank for installation of EDC machine at their place by agreeing to all the terms and conditions of the said Agreements.  At the time of installation of EDC terminal on 31.12.2008, the complainant was also given training on safe card acceptance as well as the caution to be observed while accepting cards and the complainant also acknowledged the training by singing a declaration to that effect.  That in the month of April 2009, the complainant had accepted the following transactions totally for Rs.32,600/- :

1. Card No. 4147341021078245 on 26.04.2009 for Rs.19,400/- and
2. Card No. 5420110023910126 on 26.04.2009 for Rs.13,200/-.

The payments of the aforesaid transactions were credited in the complainant's account on 27.04.2009 by the opposite party.  However, in the month of May 2009, the O.P Bank received a retrieval request from the issuing bank i.e., Fia Card Services, USA towards the aforesaid transaction of Rs.19,400/- done through card No. 4147341021078245.  The Opposite Party further stated that a retrieval request occurs when a card issuer requests a copy of transaction information documents like charge slip for a transaction. On the receipt of retrieval request, acquiring bank is required to fulfill the retrieval request by providing a copy of signed charge slip for the said transaction of Rs.19,400/- within a time frame of seven days. The opposite party bank has further received chargeback for the said transaction of Rs.1852040 in the month June 2009, form Fia Card Services- USA, issuing bank under the reason code "Fraud- Card present Environment", which is a direct financial liability. In the event of chargeback, the amount of Rs.18520.42 has been recovered from the complaint's account on 12.06.2009, as the O.P. bank recovered from the bank has no representments rights. Therefore, the O.P bank has rightly debited Rs.18520.42 from the complainant's account.  Further, as per clause 11 of the Agreement executed by the complainant, the O.P. Bank shall be entitled at any time to refuse total or partial payment to the Merchant or if payment has been made, to debit the Merchant's account with such amount or to seek immediate reimbursement from the Merchant, notwithstanding any authorization and/ or authorization code numbers given by the Bank to the Merchant if the sales slip or terminal receipt or any part thereof is illegible, incomplete or not signed or not prepared or not completed or submitted in accordance with this agreement. Further in terms of clause 15.1 of the agreement, the Merchant will promptly on the Bank's request (and whether or not the same is disputed by the cardholder) produce to the bank evidence satisfactorily to the bank of the cardholder's authority for the Cardholder's card account to be debited with any transaction amount and (but without prejudice to the foregoing) will retain all documents and records relating to each transaction for a period of not less than one year thereafter and produce the same to the Bank on request.  The Opposite party also stated that they did not receive any dispute for the transaction done through Master card of Rs.13,200/- from the issuing bank i.e. HSBC Bank PLC- UK. As per the complainant, the payment was made though Master card and Citi Bank Visa Card, but both the cards are counterfeit cards. When the cards No. 4147341021078245 and No. 5420110023910126 were checked with Visa Interchange directory & Master card directory, it was observed that Fia Card Services, USA, issued the said card No. 4147341021078245 and card No. 5420110023910126 was issued by HSBC Bank PLC U. This also gives implication that the said transactions were made though a counterfeit card. It clearly shows negligence on the part of the complainant by not adhering to the safe and secured card acceptance procedures, but has simply swiped the counterfeit cards on the EDC without verifying the cards features. The O.P apprehends that the complainant has failed to appreciate the usage of Credit card and has not read and understood the terms and conditions of the Agreement dated 19.12.2008 and therefore, the complainant has no right to make any claim against this O.P., when the complainant himself has violated the terms and conditions of the agreement and is liable to the Bank for all its loses. Hence, it is false on the part of the complainant to say that the O.P. Bank has wrongfully debited Rs.18520.42 in the complainant's account or that there is deficiency of 'service on the part of the Bank. On the other hand, the action of the Opposite party in debiting Rs. 18520.42 in the complainant's account following the chargeback received is in order and is in accordance with the terms of the agreement dated 19.12.2008.  Further the claim of the complainant is totally unjustified and untenable. In fact, the complainant ought to have preferred police complaint and initiated criminal action against the purchaser of gold jewels/the cardholder, who has used a bogus card in the transaction. The complainant in order to cover up their own misdeeds, omissions and commissions cannot shift the burden on the shoulders of this Opposite party, which is a well-reputed bank and there is no deficiency of service on the party of the Opposite party, as alleged by the complainant. On the basis of the reply given by the Opposite Party, the complainant ought to have proceeded against the said S. Kumar, S/o. M. Sankar,  #1/5. Girija Nagar East, Gandhi Nagar, Madurai-625 020 and not against this opposite party, who are in no way responsible and liable for refund of an amount of Rs.18,520.42.  Further the complainant being a business firm, has no locus standi to file a complaint under the provisions of this Act and further, the Opposite Party is not liable to pay any damages, when there is no loss or deficiency of service on the part of the opposite party and the alleged debit was due to the forged card.  Hence, prayed for dismissal of the complaint.

4.       On the side of the complainant, the complainant was examined as CW1 and Exs.C1 to C9 were marked.  On the side of the opposite party, one P. Ganesh, Senior Manager, was examined as RW1 and Exs.R1 to R12 were marked.

5.       Points for determination are :

          1. Whether the complainant is a consumer?

2. Whether the opposite party has committed deficiency in service and Unfair Trade Practice?

3. To what relief the complainant is entitled for?

            6. Point No.1:

           This Forum carefully perused the pleadings of the complainant and opposite party, documents produced and the evidence adduced by both parties and the arguments advanced by the learned Counsels.   On perusal of case records, it is pertinent to decide whether the complainant is a consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act 1986.    The learned Counsel appearing for the respondent has submitted that the Complainant is doing a large scale business dealing with jewellery and for the purpose of the said business.    Being the customer, the complainant requested the opposite party Bank for installation of Electronic Date Capture Machine (EDC) by submitting an application form to the Bank and consequent thereto, the complainant also entered into an agreement as per Ex.R1 on 19.12.2008 with the Bank for installation of EDC machine at their concern  by agreeing to all the terms and conditions of the said agreement.  Hence, the complainant cannot be treated as a Consumer.    In this regard, the learned Counsel relied upon a judgment reported in 2013 (4) CPR 37 (State Commission, Mumbai) wherein, it was held that

"Machinery – Manufacturing defect – Firm is a commercial conern and on a large scale dealing with printing daily newspapers and for that purpose only machine was purchased by Firm from Company – Since commericak purpose is per se at large, complainant cannot be termed as a consumer."

The learned Counsel for the Opposite Party further submitted that there is no statement either in the complaint or in affidavit evidence of the complainant to establish that services of opposite party were availed exclusively for the purpose of earning livelihood by means of self-employment and also relied upon a judgment reported in 2013 (4) CPR 3 (Mah.) SCDRC wherein, it was held that

"Admittedly the complainant is engaged in business of manufacturing of Ari Conditioning and accessories and also carried on export of the manufactured goods.  There is no statement either in complaint or in affidavit evidence of the complainant to establish that the services of opponents were availed exclusively for the purpose of earning livelihood by means of self-employment…."

Moreover, the learned Counsel for the opposite party argued that the accounts maintained by the complainant with the opposite party bank relates to business accounts.  The transaction relates to commercial purpose, the services hired for the purpose of functioning of business would fall within the category of hiring services for commercial purpose and relied upon a judgment passed by Hon'ble National Commission in 2013 (2) CPR 1 (NC) [SUBHASH MOTILAL SHAH (HUF) DEAD THROUGH HIS LRS AND OTHERS VS MALEGAON MERCHANTS CO-OP. BANK LTD.) wherein, Hon'ble National Commission held that

"….. Complaint dismissed by For a below on ground that petitioners are not consumers since transaction in question relates to commercial one – Since account itself is connected and related to business transactions and such banking activity is required for functioning of business enterprise of appellant / complainant, services hired for that purpose would all within category of hiring services for commercial purpose." 

           7. Further, this Forum has relied upon the judgment reported in 2015 (2) CPR 620 (NC) [M/S SRIKISHAN & COMPANY, THROUGH PROPRIETOR, SUSHIL KUMAR AGARWAL vs UNION BANK OF INDIA THROUGH ITS BRANCH MANAGER, KORBA BRANCH] wherein, Hon'ble National Commission has held that

"Keeping in view the undisputed fact that the transaction in questions which are subject matter of the dispute were undertaken during the course of business and the services of the OP Bank were availed of for business and commercial purposes, the appellant cannot be a consumer quo these transactions and its complaint is, therefore, not maintainable before the consumer fora."

In the present complaint also, the complainant admitted that he is engaged in the business of gold jewellery under the name and Style of "Sree Gold Jewellery" and also they are having current account with the opposite party.  As rightly stated by the learned Counsel for the Opposite Party that the complainant hired services of the Opposite Party Bank for business purpose.

           8. Further, the complainant has not stated that he availed the services of the Opposite Party exclusively for the purpose of earning his livelihood by means of self-employment.  The object of opening a Current account by the complainant with the Opposite Party Bank is for commercial purpose.   The service availed by the complainant is for making profit.  Moreover, as stated above, the complainant has not stated anywhere in the complaint that he is running the business for his livelihood as self-employment.  In the cross-examination of CW1 also, the complainant admitted that "I have obtained the jewellery licence for running the shop which is the business firm."  There is no dispute that the petitioner is engaged in jewellery business and having current account with the opposite party.  Hence, the complainant availed services of the opposite party bank for business purpose.  Hence, the authorities above cited is squarely applicable to this case.

           9.  Point Nos. 2 and 3:

           The first point being answered as against the complainant, the need to discuss the points 2 and 3 does not arise and hence, these points are not answered.

10.     In view of the discussion and decision made supra,  the complainant is failed to establish that he is a consumer under the purview of Sec. 2 (1) (d) (ii) of the Consumer Protection Act 1986 and therefore, the complaint is liable to be dismissed.

11. In the result, this complaint is dismissed. No costs.

Dated this the 4^th day of April 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           10.05.2012           K. Chandrasekaran

OPPOSITE PARTY'S WITNESS: 

RW.1          26.02.2014           P. Ganesh

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER