National Consumer Disputes Redressal
M/S. Sbi Cards & Payments Services Ltd. vs Vishal Sabharwal & Anr. on 16 June, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2098 OF 2019 (Against the Order dated 26/08/2019 in Appeal No. 352/2018 of the State Commission Chandigarh) 1. M/S. SBI CARDS & PAYMENTS SERVICES LTD. UNIT 401&402, 4TH FLOOR, AGGARWAL MILLENNUIM TOWER, E1,2,3, NETAJI SUBHASH PLACE, WAZIRPUR-110034 NEW DELHI ...........Petitioner(s) Versus 1. VISHAL SABHARWAL & ANR. S/O. LATE SH. VED PRAKASH SABHARWAL, R/O. 3158, SECTOR 19-D, CHANDIGARH 2. STATE BANK OF INDIA STATE BANK BHAWAN, MADAM CAMA ROAD, MUMBAI-400021 MAHARASTHRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Ms. Gurmeet Bindra, Advocate with
Mr. Pawan Kumar, Sr. V.P.(Litigation) and
Mr. Punit Babbar, Sr. Manager, (Litigation) For the Respondent :
Dated : 16 Jun 2020 ORDER
This revision petition has been filed by the petitioner M/s. SBI Cards & Payments Services Ltd. against the order dated 26.08.2019 of the State Consumer Disputes Redressal Commission, UT Chandigarh, (in short 'the State Commission') passed in Appeal No.352 of 2018.
2. Brief facts of the case are that the Complainant/respondent No.1 was issued credit card by opposite party/petitioner herein. Complainant/respondent No.1 filed a complaint to opposite party for 8 transactions amounting to Rs.39,999/- done on 27.10.2017 which were executed without his knowledge. The complainant even filed a FIR for the same. Opposite party refused the claim & put the liability on him. Complainant approached Banking Ombudsman of RBI whose office after investigation advised opposite party to pay the amount in dispute to complainant. However, the amount was not paid. Complainant sent legal notice to opposite party as they failed to comply with the above directions. The complainant filed a consumer complaint being CC No.192 of 2018 before the District Consumer Disputes Redressal Forum UT Chandigarh, (in short the 'District Forum'). District Forum passed the following order:-
"In view of the facts, as brought forth in the pleadings & evidence, as discussed in the preceding paragraphs, the complaint is hereby allowed against the OP No.4 with direction to reverse an amount of Rs.39,999/- in the credit card account of the complainant against the unauthorized transaction and also credit an amount of Rs.5000/- in the said account towards litigation expenses.
This Forum do not feel it expedient to award any compensation over and above the relief mentioned above."
3. Aggrieved with the above order of the District Forum, the opposite party/petitioner herein filed an appeal before the State Commission, which was dismissed vide its order dated 26.08.2019.
4. Hence this revision petition.
5. Heard the learned counsel for the petitioner at the admission stage. Learned counsel for the petitioner stated that as soon as the complaint was received, the amount was remitted to the account of the petitioner. However, when detailed inquiry was conducted, it was found that in fact the complainant had transacted with the credit card or he must have shared his details of credit card along with mobile number as the OTP was sent to his mobile number registered with the petitioner. As the whole transaction is based on OTP, which is only received by the account holder on his mobile number, which is registered with the petitioner/opposite party, it is not possible that anybody could have used his credit card or could have got the OTP to transact with credit card. The complainant himself has mentioned in his complaint that his e-mail was hacked. As the OTP is being sent on mobile as well as on e-mail and if the e-mail of the complainant was hacked by somebody else, then, the third party could have got the OTP and could have known the details of the credit card to misuse the same. But in that case, the responsibility is not of the petitioner to stop the withdrawal of the amount withdrawn. The RBI guidelines also state that if there is any fault or negligence on the part of the complainant/card holder, then the bank would not be liable to pay any amount. In the present case, clearly e-mail was hacked and somebody got the OTP through the hacked e-mail and transacted with the credit card. In such situation, the complainant is himself responsible because his e-mail was hacked and he did not take precaution in this regard. Clearly the petitioner is not responsible in such case to refund the amount withdrawn. It was further argued that if a fraud has been played upon the complainant by hacking his e-mail by a third party, then why the bank should be responsible for the same. Moreover, the cases involving fraud, forgery, cheating etc. cannot be decided by consumer fora. In support of his contention the learned counsel for the petitioner referred to the judgment of this Commission in P.N. Khanna Vs. Bank of India & Anr., FA No.9 of 2015, decided on 29.01.2015 (NC) where it has been observed that:
"6. Learned State Commission rightly observed as under:-
In Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery, etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora. In Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006 (2) CPC 668 (SC), decided by the Hon'ble Apex Court; Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s. Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank III (1992) CPJ 50, a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided, by a Consumer Fora, proceedings before which, are summary in nature."
6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and examined the record. First of all, it is seen that both the fora below have given concurrent finding of facts and have allowed the payment of Rs.39,999/- to the complainant. The facts have already been assessed by the fora below and this Commission cannot reassess the facts in the light of the decision of the Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been held:-
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."
7. The fact of withdrawal of the amount of Rs.39,999/- has been challenged in the revision petition on which both the fora below have already given concurrent finding and the scope under these circumstances in the revision petition is quite limited. The amount involved is a small amount and this Commission would not like to interfere with the concurrent orders passed by the fora below. Accepting this revision petition will result in further litigation expenditure by both the parties which will not be in the interest of both the parties as the disputed amount is not much. This view is being taken in the light of the judgment of the Hon'ble Supreme Court in Gurgaon Gramin Bank Vs. Khazani & Anr., IV (2012) CPJ 5 (SC), wherein the Hon'ble Apex Court has observed;
"2. Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers' skin. Judicial system is over-burdened, naturally causes delay in adjudication of disputes. Mediation centers opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink. Unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, Courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category."
The Apex Court further held;
"10. The Chief Manager stated in the affidavit that no bill was raised by the counsel for the bank for conducting the matter before the National Consumer Dispute Redressal Commission. We have not been told how much money has been spent by the bank officers for their to and fro journeys to the lawyers' office, to the District Forum, State Forum, National Commission and, to the Supreme Court. For a paltry amount of ₹15,000/-even according to the affidavit, bank has already spent a total amount of ₹12,950/- leaving aside the time spent and other miscellaneous expenses spent by the officers of the bank for to and fro expenses etc. Further, it may be noted that the District Forum had awarded ₹3,000/-towards cost of litigation and compensation for the harassment caused to Smt. Khazani. Adding this amount, the cost goes up to ₹15,950/-. Remember, the buffalo had died 10 years back, but the litigation is not over, fight is still on for ₹15,000/-.
11. Learned counsel appearing for the bank, Shri Amit Grover, submitted that though the amount involved is not very high but the claim was fake and on inspection by the insurance company, no tag was found on the dead body of the buffalo and hence the insurer was not bound to make good the loss, consequently the bank had to proceed against Smt. Khazani.
12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court.
13. Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to a large extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences.
14. We, in this case, find no error in the decisions taken by all fact finding authorities including the National Disputes Redressal Commission. The appeal is accordingly dismissed with cost of ₹10,000/- to be paid by the bank to the first respondent within a period of one month. Resultantly, the Bank now has to spend altogether ₹25,950/- for a claim of ₹15,000/-, apart from to and fro travelling expenses of the Bank officials. Let God save the Gramins."
8. The only legal point raised by the petitioner is that a consumer forum cannot decide a complaint involving fraud, forgery or cheating. In the present case, as the e-mail of the complainant was hacked by a third party, clearly, no fraud, forgery or cheating has been committed by either of the parties in the complaint case. The circular dated 06.07.2017 of the RBI also supports the case of the complainant, therefore, in my opinion, the judgment of this Commission in P.N. Khanna Vs. Bank of India & Anr. (supra) would not be attracted in the present case.
9. Based on the above discussion, I do not find any force in the present revision petition and this Commission would refrain from interfering with the concurrent orders passed by the fora below. Consequently, revision petition no.2098 of 2019 is dismissed in limine.
...................... PREM NARAIN PRESIDING MEMBER