MUZAFFAR JAN BUCH vs CITY BANK

SHORN of details, facts barely needed for the disposal of this complaint are that the complainant was proprietor and Managing Director of JK Trading Corporation of M/s. Shah Impex Pvt. Ltd. He was holding three Credit Cards-Diners Club Card 36559620843022, Master Visa Card No. 540175905418004 and International Gold Card No. 4553900086844010. All the three cards were being utilised by him throughout the whole country and in International Market also, for all purposes including purchase of Air Tickets, shopping and for hotel charge, etc as per the agreement.

IT is averred in the complaint that against Visa Card balance of Rs. 1,00,31,696.00 was shown as on 11.9.1999 which included interest and late fees and other charges. Complainant despatched an amount of Rs. 70,000.00 through a Bank Draft issued by Vijay Bank under No. 115680 dated 11.11.1999 which was delivered through DHL Courrier Service under their No. 200463690 addressed to the O.P. but the City Bank neither credited the said amount nor acknowledged the receipt of the said amount and on the other hand continued charging interest without any rhyme and reason. According to him the O.P. suspended the utilization of all the three cards on the pretext of so-called default of complainant for not depositing the amount against balance amount. Complainant went to purchase an Air Ticket from Jammu to Srinagar where he was told by the Air authorities that his cards stood suspended and those could not be utilized. Not only this, complainant could not utilize his card in Jammu Hotel and elsewhere in the country which caused a great loss to him both in the business and in personal activities. He has pointed out that suspension of cards gave a mental shock to him and he was mentally disturbed. Complainant has contended that the facility of cards which he was holding under rules was arbitrarily and capriciously suspended and the complainant was deprived of the facilities of the Credit Cards. Complainant served a legal notice to the O.P. when looked into the matter, realized about its omissions and commissions and redressed the grievance of the complainant by reversing the entries and restoring the facilities of the cards which were suspended. The grievance of the complainant is that he suffered Rs. 5.00 lacs on account of damages, overall inconvenience, harassment and humiliation caused to him by suspension of cards. Rs. 1.50 lacs as costs of expenditure incurred on telephones, fax, stationery, etc and thirdly Rs. 1.20 lacs has been demanded as legal expanses, totalling to Rs. 7.70 lacs. Hence the complaint. O.P. were noticed. They appeared through their Counsel submitted written version and hotly contested the claim of the complainant. Many a plea were raised by them to rebut the allegations made in the complaint. They firstly agitated that the claim is not maintainable. The Commission lacks jurisdiction both on the territorial and on the pecuniary side. They have in their objections on the one hand rebutted the allegations and on the other hand have contended that the grievance of suspension of cards was redressed by the O.P. immediately in April 2000 while coming to know that a bona fide mistake had crept in, in not adjusting the amounts and charging interest thereon. They have admitted that they restored the facilities of the cards, reversed all entries towards interest and other charges to the satisfaction of the complainant. According to the O.P. there was no deficiency existing. Even if it was so matter could be resolved before the Civil Court after full dressed probe.

Parties have led evidence. Complainant has filed his own affidavit and Mr. Lalit Gupta, Counsel for O.P. has examined Mr. Kapil Bahal, officer of the Bank.

HEARD learned Counsels for the parties. We have perused the whole record. Firstly, we would like to address ourselves to the point of jurisdiction raised by the Counsel for O.P. According to him there is no branch of the said City Bank in the State of Jammu and Kashmir so this Commission lacks jurisdiction to entertain the complaint. To elucidate this point we would like to give a short description about the credit card facility to the consumers by the O.P. Credit card facility is given to a Consumer to utilize it in every walk of life where the customer has to purchase air tickets he could produce the cards if he is not in possession of cash. He can utilize the card in any shopping centre and while staying in any hotel. It is called a Plastic Money. It is to be utilized inter-changeably with the cash vis-a-vis Insurance Company and to all day-to-day needs within the whole country. Here in this case the complainant has contended that he went to utilize the card for purchasing the Air Ticket from Jammu to Srinagar and wanted to utilize it for staying in a hotel in Jammu but he was told about the suspension of the card. We think that this gives a territorial jurisdiction to the complainant. When card is to be used everywhere in the country if the consumer is deprived of this facility at any place in country, he can raise the complaint within the jurisdiction of that place where he was deprived of this facility which gives a cause of action to him. It is a fact that the complainant has not given any substantive evidence that he wanted to utilize this card in Jammu but however his allegation in the complaint has not totally been denied by the other side and other side has squarely admitted the suspension of the card. So we are of the view that this Commission has got the territorial jurisdiction because complainant was deprived the utilization of the card in Jammu within the Jammu and Kashmir State.

SO far as the pecuniary jurisdiction is concerned Mr. Lalit Gupta has contended that the complaint was firmly drafted for the compensation of Rs. 2.50 lacs but thereafter complainant has inflated it to Rs. 7.70 lacs for the reasons best known to him. May be to bring it within the jurisdiction of this Commission. He has invited our attention to complaint itself where he has pointed out that overwriting and cuttings have been made to raise the compensation to the tune of Rs. 7.70 lacs and the complainant has forgotten to make the change in para 5 where he says that the complainant has got full right to claim Rs. 2.50 lacs from O.P. These changes, if any, admittedly have been made before filing the complaint. SO complainant is within his rights to make corrections in the complaint before presenting it to the Commission. However, this Commission also offered the parties to return the complaint for filing it before the Divisional Forum but the Counsel for both the parties unanimously asserted that the case has now been at its fag end, the evidence has been recorded, it will not be in the interest of justice to send it to the Forum and to start the trial de novo. For these reasons, therefore, we proceed to hear the case on merits. Learned Counsel for O.P. Mr. Lalit Gupta has vehemently argued that there is no deficiency at all in the service of O.P. rendered to the complainant, if at all there was some bona fide mistake that has been corrected to the entire satisfaction of the complainant prior to the filing of the his complaint. According to him complainant cannot be deemed to be a consumer under the definition given by Section 2 of J & K Consumers Protection Act. According to him complainant has himself admitted that he received a set-back to his business so the complainant who was utilizing the card for commercial purpose cannot be deemed to be a consumer under the definition of J & K State Consumer Protection Act. We have thoughtfully considered these arguments. We have not succeeded in persuading ourselves to agree with the contention of learned Counsel from the O.P. that the whole claim is not entertainable on the basis that such cards have been used by the complainant for commercial purposes also. At the outset we have shortly mentioned the kind of services which complainant derived from the Credit Card facility. It is not to be used only for commercial purpose but it is being used for all purposes that may be of shopping of any kinds of goods, purchasing of Air Tickets, paying hotel bills etc. This facility is being used for day-to-day activities by the consumers. It is a fact that we can consider this aspect of argument raised by Counsel for O.P. while assessing the loss, if any, caused to the complainant. Here the whole claim cannot be brushed aside because cards could be used for business purposes also and we cannot loose sight of this facility which is being used by the complainant for day-to-day activities. Learned Counsel for O.P. Mr. Lalit Gupta has in his argument contended that complex questions of laws and facts are involved which may not be resolved by this Commission in a short summary method so it needs a full dressed inquiry which can be done only through a Civil Court. Consumer Protection Act is a social oriented legislation which has been enacted for the benefit of consumer and it is equally a fact that where matter involves the complex question of law and facts and the Commission is not in a position to deal with the matter within a shortest period of time as envisaged by the J & K State Consumers Protection Act the complaint is to be returned for presenting it before a proper Forum. That may be a Civil Court also. So far as the facts of this case are concerned we cannot return the complaint on the pretext of complicacy of question of law and fact. So far as this case is concerned, it is fairly admitted by the O.P. that cards were suspended under mistake which was corrected and facility of card was restored. In this connection we refer communication dated 22.5.2000 Exhibit D.W. 1/A. This communication has been admitted by the O.P. which inter alia reads as under: "This refers to the legal notice issued on your behalf by your Counsel Mr. B.A. Bashir, with reference to the above mentioned card accounts. Card 5401759005418004 We confirm having credited your card account with Rs. 70,000.00 towards the payment sent by you. This credit reflects in your April, 2000 statement. We regret the delay in crediting the same to your card account. We have also reversed the charges amounting to Rs. 62,192.71 and these will reflect in your May, 2000 statement. We have now referred the service charges of Rs. 515.18 billed in your May, 2000 statement, and this credit will reflect in your June, 2000 statement. Card 455390008644010 We have reversed the charges amounting to Rs. 31,068.82 and this credit reflects in your May, 2000 statement. As on date, there is no amount outstanding in your Gold Master Card account and International Gold Card account. There is a credit balance of Rs. 264.64 in your Diners Club Card account bearing 36559620843022 and we are glad to inform you that we have restored the charge facilities on your Diners Blub Card account and International Gold Card account bearing 36559620843022 and 45590086844010 respectively. Kindly use these cards for your future purchases. We have also restored the charge facilities in your Gold Master Card bearing 540175900518004 have sent you the renewed card as the earlier card had expired. Kindly use the renewed card for the future transactions." From this communication it is now clear that the O.P. has realized the mistake and has very much regretted the delay in crediting the same in Card Account of the complainant. It is also mentioned in this letter that the O.P. has reversed all the charges of interest not only this O.P. even in its written version at para 3 has categorically admitted that the error was caused for entering Rs. 70,000.00. They have further admitted that this mistake was caused due to some error developed in the computer Y2K Phenomena throughout the world. It is also admitted that as soon the error was detected the grievance of the complainant was redressed. It is thus clear from this communication that no complicated question of law and facts are involved in the case. O.P. has clearly and squarely admitted the suspension of cards. Admitted the error and admitted that the error was corrected and the grievance of complainant was redressed after 3 months of the suspension of cards so there is no question of return of complaint.

LEARNED Counsel for the O.P. has argued that there is no deficiency at all and if error was committed it was the bona fide mistake. This argument is not well founded in view of the stand taken by O.P. both in the written version at para 3 and in aforementioned communication dated 22.5.2000. The deficiency of service is well established because of the suspension of the cards which was due to not crediting the amounts of Rs. 70,000.00 deposited by the complainant against the balance amount. Mistake is there. O.P. cannot absolve itself by saying that the mistake was a bona fide one. Consumer is to be provided service without break and without any error or mistake. O.P. cannot be allowed to resist the claim for deficiency of service on the pretext of bona fide mistake. Had there been no deficiency in service, O.P. would not have regretted the mistake in the aforementioned communication. There cannot be denial from the consequences of suspension of card which caused great harassment, mental agony and inconvenience to the O.P. It is an admitted case that the complainant suffered for 3 months and it is after more than 3 months that the facility of cards were restored. We are of the view that there is definite deficiency of service.

WE have also dealt with the same point in Appeal No. 25/Y2K in the case Mohammad Rajab Lalla v. J & K Bank. Facts of this case were that some tenders were issued by the Executive Engineer for some work and the earnest money of Rs. 18,300/- was to be deposited first by the Contractor with the tenders. The complainant had more amount in his account of J & K Bank. He asked them to prepare a draft for Rs. 18,300/- but Bank sent the draft for Rs. 13,800/- only to the Executive Engineer. His tender form was rejected on the basis that full earnest money was not deposited but later on this tender notice was cancelled due to some departmental wranglings. O.P. pleaded that as the tender was cancelled so no injury was caused to the complainant. This Commission on basis of the Apex Court judgment reported in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=1993 CCJ 1100 (SC), has held that the loss caused to the complainant does not constitute only actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss due to deficiency of service. This Commission allowed the complaint and held the Bank responsible for causing mental agony to the complainant whose form was rejected only on the basis of depositing of lesser amount even in the circumstances when the tender was cancelled. This principle of law applies very much in the present case also. It is the fact that the complainant has asked for Rs. 5.00 lacs as damages all over the inconvenience, trouble, harassment, humiliation which is highly inflated sum which he asks for. We may agree with the learned Counsel for O.P. Mr. Lalit Gupta that we have not to allow the huge amount as asked for by the complainant to be given from the O.P. side without any proof and it is also a fact that no actual loss has been shown by the complainant nor he has given detailed estimate of loss. It is equally a fact that credit facility is a great facility which is enjoyed by the consumer who can utilize it throughout the country and in the international market also. Our attention has been drawn to the photostat copies of the documents, Exhibits B1 to B8, produced by the complainant from which it is seemingly clear that the complainant has been availing the facility of this card for Indian Air-lines in Premier Hotel, Jammu, KC Plaza Hotel, Jammu and so on and so forth. Suspension of this facility itself means causing a great loss to the complainant by depriving of this facility in day-to-day dealings. We would not have hesitated to grant actual compensation, had the complainant been able to prove it by way of evidence. But here we cannot shut our eyes that suspension of such a great facility for 3 months is a great shock to the complainant which may have caused a great inconvenience both mentally and as compensation under this head. 12. So far as Rs. 1.50 lacs as costs of expenditure allegedly incurred by the complainant on Telephone, Fax, Stationery and other items are concerned it seems to be exaggerated and no proof has been submitted by the complainant. Merely making a demand for certain amount at randum will not suffice without proof. However, under this head we grant Rs. 10,000.00 which might have been incurred under this head. Similarly, demand for Rs. 1.20 lacs as legal expenses is also exaggerated and exorbitant. No proof has been furnished for demanding at randum of this huge amount of legal expenses which is not justifiable in absence of proof. However, we feel Rs. 15,000/- is a reasonable amount to meet expenses under this head. So we grant this amount for legal expenses. In total we direct O.P. to indemnify the complainant by making the payment of Rs. 1.00 lac with 9% interest from the date of complaint within a period of 5 weeks failing which interest chargeable after 5 weeks will be 12%.

A copy of this order be given to the parties to be collected by them on their own in person or through their authorized agent. Complaint disposed of.