Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : Abhijit Sadhu
Date of filing of the case :27.01.2022
Date of Disposal of the case :08.11.2023
Final Order / Judgment dtd.08.11.2023
The concise fact of the case of the complaint is that the complainant Manabendra Adhikary had savings account with the OP No.1. HDFC Bank
(2)
Krishnagar Branch. OP No.2 & 3 the Manager HDFC Credit Card and Credit Card Division, Chennai are respectfully card maintenance office. The Opposite parties asked for an offer of loan to the complainant over phone through his savings bank account. Thereafter, the complainant took a loan for Rs.22,500/- and subsequently he repaid the loan through EMI which was auto debited from his savings bank account and the said loan was disbursed on 10.02.2021 after sending monthly statement to the complainant for the first time on 22.06.2021, complainant came to learn that the alleged loan has been allotted through Credit Card bearing no.43415xxxxxx7312, but no such credit card was actually sent to the complainant till the filing of this case. Thereafter the complainant visited to the branch office and asked for the said credit card and the bank authority assured that the credit card will be sent very soon from the HDFC card office but they have no knowledge about the matter. Thereafter, on 22.07.2021 and 22.08.2021 they sent two statements to the complainant and the complainant also paid the EMI through his savings account. The OP also sent credit card statement to the complainant on 22.10.2021 over which the complainant was shocked after seeing that Rs.22,110/- has been paid for electricity bill of the consumer I.D 333267943. On the official website WBSEDCL, the complainant came to learn that the alleged electric connection was in the name of one Dipu Majhi of Dignagar Customer Care Centre WBSEDCL, which is not anyway connected with the complainant. The complainant never got any credit card in his hand nor he has used the same but the credit card was illegally issued and some false payment was made. The EMI of the loan of the complainant has been increased and it was auto debited from the savings account of the complainant illegally. The complainant visited the Krishnagar Branch of HDFC Bank. The Bank Authority assured for taking positive steps and asked the complainant to wait for one month but nothing was done during the next one month. Subsequently the complainant blocked the said credit card and lodged a complaint at Cyber Crime Police Station , Krishnagar being G.G.E No.167 dated 21.01.2022 for the said fraud despite visiting to the office of the OP, they did not do anything positive which caused mental pain and agony and harassment. The opposite parties have thus caused deficiency in service and unfair trade practice for which the present case is filed the cause of action arose on 21.01.2021 and thereafter everyday till the filing of this case. The complainant therefore prayed for an ward with a direction to the OP to stop EMI and the balance dues has ascertained by this Commission, Rs.22,110/- towards repayment of the actual loan fraud transaction, Rs.1,00,000/- for compensation, harassment and mental pain and agony with litigation cost of Rs.25,000/-.
The OPs contested the case by filing W/V, wherein they denied the major allegation. The OPs challenged the status of the complainant that the complainant is not a consumer and the case is bad for non-joinder and mis-joinder of parties. The positive defence case of the OPs in brief is that on 17.01.2019. The complainant opened the said Credit Card having an alternative account number 0001015300000764014. Said Credit Card was
(3)
extensively used. The complainant failed to pay the dues on time as per the terms and conditions for which outstanding dues accrued month to month basis. The complainant also opted to direct debit option/auto pay of the total amount. Accordingly, the amount was debited from the savings account of the complainant. In every month on 22nd monthly statement was generated and despatched to the complainant through e-mail to his register mail I.D. Total Rs.28,549/- is due and payable from the complainant to the OP Bank as on December, 2021 The complainant registered the biller to pay in his Credit Card account towards WBSEDCL which was duly processed. It is well settled that the secret code /CCV number/account details and other secret information pertaining to the card or account should always remain secret with the complainant. So the allegation of fraud was false. The complainant was called upon the clear the dues of Rs.3,57,039.36 as on 11.04.2022 against the said card. The OP Bank made the payment as instructed by the complainant and the payment was done in secure mode. The said card was emulised by the complainant himself or any one with the permission of the complainant. So no one can be held responsible which has been done wrongly without full knowledge except the person who is responsible. The OPs therefore claimed that the case is liable to be dismissed with cost.
The conflicting pleadings of the parties led this commission to ascertain the following points for proper adjudication of this case.
Points for determination
Point No.1
Whether the complainant is a consumer or not.
Point No.2
Whether the complainant is entitled to get the relief prayed for.
Point No.3
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1
The OPs challenged the status of the complainant and denied that the complainant is a consumer. The OPs seem to have admitted that the complainant used the Credit Card issued by them. So the relation between the complainant and the OPs appear to be a purchaser and seller. Although, the complainant denied that he applied for any Credit Card yet the pleadings of the parties and the evidence on record clearly establish that the complainant is a consumer under C.P. Act.
Accordingly point no.1 is decided in favour of the complainant.
(4)
Point No.2 &3
Both the points are very closely interlinked with each other. Accordingly, these are taken up together for brevity and convenience of discussion.
The complainant in order to substantiate the case adduced oral evidence by filing affidavit in chief and also filed different documents.
It is the specific case of the complainant that he never applied for any Credit Card but his bank account with the OPs disclose that different moneys were deducted in different times. It is the admitted case that the complainant took on loan of Rs.22,500/- and he repaid the loan through EMI from his savings account which was finally disbursed on 10.02.2021. The bone of contention is that the said loan was allotted through Credit Card but the complainant never received that Credit Card from the OPs. In spite sending the said Credit Card the OPs sent two statements to the complainant on 22.07.2021 and 22.08.2021.
It is the further case of the complainant that Rs.22,110/- has been paid in electricity bill of consumer ID 333267943 which actually stand in the name of Dipu Majhi who is not connected with the complainant in anyway.
The OPs denied the said allegation but the OPs could not file any document to show that the complainant applied for any Credit Card at any time.
So, also the OPs could not prove any document that the said disputed Credit Card was supplied to the complainant on the basis of his request.
It is also found from the analysis of the reply to the questionnaires by the complainant that the complainant claimed that they filed document to show that complainant availed the Credit Card facility. But after close scrutiny of the W/V ,it is found that there is no document to show that the OPs actually handed over the Credit Card to the complainant.
That apart the complainant categorically answered in cross examination in question No.9 under interrogatories by the OPs wherein the complainant answered that he had not applied for any Credit Card. So the question of direct debit option/ auto pay of the total amount due in the Credit Card account from his said savings account does not arise.
The complainant also stated in cross examination to question number 13 that the OPs had denied to receive any complaint from him rather they asked him for making complaint through e-mail which he made as per bank official instructions. The disputed electric bill which was paid by
(5)
using the Credit Card of the complainant was actually not within the knowledge of the complainant as it is evident from the answer given by the complainant in question number 21 wherein the complainant stated that he came to know from the electricity I.D has mentioned in the alleged Credit Card statement about the electricity bill which was paid is belong to one Dipu Majhi of Dignagar Consumer Care Centre WBSEDCL.
Ld. Defence Council argued that payment through Credit Card is done after using the OTP which is a secret one and unless, it is disclosed there is no scope of payment through the Credit Card. Ld. Advocate for the complainant referred to a decision reported in the case of M/S. SBI Card and Payment Services Vs. Vishal Sabharwal & Anr. Dated 16.06.2020 down loaded from the Indian Kanoon. In that case it was decided that where the e-mail was hacked or there was fraud in transaction over which either the complainant or the OPs has no control. The complainant cannot be held responsible. In that case the decision reported in 2012 Volume II CPJ 151 (NC) and 2006 Volume II CPC 668 (SC) were relied on.
Ld. Advocate for the complainant also argued that the complainant filed G.D.E. and complaint over that matter which is still under investigation. The complainant took the copy of the G. D.E. 167 dated 21.01.2022. He further proved the written complaint to the inspector in charge Cyber Crime Police Station Krishnagar, Nadia.
It is the specific allegation of the complainant that the OPs after closing old Credit Card issued another new Credit Card to the complainant. The OPs could not give any explanation as to why during the pendency of the dispute over the old Credit Card and unwillingness of the complainant to have any Credit Card, the OPs issued another Credit Card.
Ld. Advocate for the complainant filed the copy of RBI guidelines in respect of the law of the customer. As per the said guidelines a customer has zero liability in case of contributory fraud/negligence/deficiency on the part of the bank and for third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system. A customer has limited liability in case 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 unauthorised transaction to the bank.
In the instant case the complainant categorically pleaded and proved that he raised the complaint to the OP bank. OP Bank authority could not prove any defence evidence to establish that the complainant shared his credentials or confidential OTP with anybody. So there is nothing to show that the complainant had any fault.
Ld. Advocate for the OPs referred to a decision in AIR 2005 SC 2813 in appellate number 2831 of 2005 wherein it was held that the stranger to the contract is neither necessary nor proper parties and not entitled to join as party.
(6)
The said case law does not apply because the OPs in the instance case are proper and necessary party. That apart the OPs could not specify as to who other are the proper and necessary party for absence of whom the case is bad for defect of parties. Ld. Advocate for the OP further referred to another decision in down loaded form of Hon’ble State of Cuttack in complaint number 81/2008 wherein it was held that under a higher purchase transaction the financer does not render any service within the meaning of Consumer Protection Act.
The said case law is not applicable in as much as the OPs in the instant case acted as a service provider by providing loan and deducting EMI.
The complainant also put some questions to the OPs. The answered given actually goes in favour of the complainant. As per question number 2 the complainant asked the OPs to mention the date when the Credit Card was delivered to the complainant but the OPs avoided the said question by answering the question that it is matter of record. Against the question number 3 the OPs answered that it is the duty of the Credit Card holder not to share his OTP or any credential information with any unknown person.
But the OPs could not adduce any evidence to establish that the complainant shared the OTP to any stranger.
So relying upon the RBI guidelines and the case law as stated herein above it stands well established that the complainant had no fault in the disputed transaction and as such the demeanour on the part of the OPs tantamount to deficiency in service which caused mental pain and agony.
However, it is also matter of paramount consideration that the RBI guidelines does not mention for penalising the complainant in the given facts and circumstances of this case.
Accordingly, point no.2 & 3 are answered in affirmative on behalf of the complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/09/2022 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand)in favour of the complainant. The complainant do get an award with a direction to the OPs to close the Credit Card account of the complainant after repayment of the actual loan and disputed transaction for Rs.22,110/-
(7)
(Rupees Twenty two thousand one hundred ten). The OPs shall pay compensation to the complainant for Rs.20,000/-(Rupees twenty thousand) for deficiency in service, harassment, mental pain and agony. The OP bank shall be entitled to recover the actual outstanding loan through EMI on the basis of the agreement. The OPs are directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand) to the complainant within 30 days from the date of passing the order failing which the entire award money shall carry an interest of 8% per annum from the date of passing the final order till the date of its realisation.
Dealing Assistant to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
........................................
MEMBER
(NIROD BARAN ROY CHOWDHURY)
