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	Revisional jurisdiction of the National Commission can be exercised only when there is jurisdictional error or miscarriage of justice – Credit Card cannot be debited without the consent of the cardholder NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 3192 OF 2018 (Against the Order dated 10/08/2018 in Appeal No. 815/2016 of the State Commission, Maharashtra) MANAGER, HDFC BANK CARDS DIVISION & ANR. P.O BOX NO-8654, THIRUVANMIYAR PO CHENNAI - 600041 ...........Petitioner(s) Versus ANAND VASANT NIRGUDE R/O BUNGLOW NO-10, HIGH CAMPUS, JALNA ROAD, AURANGABAD. MAHARASHTRA ...........Respondent(s) BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA, PRESIDING MEMBER Dated : 04 Jan 2019 ORDER ORAL The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (for Short “the State Commission”), dated 10.08.2018 in Appeal No.815 of 2016, which was filed by the Petitioners against the order of the District Consumer Disputes Redressal Forum, Aurangabad (for Short “the District Forum”), dated 29.07.2016 in CC No.249 of 2015. By the impugned order, the Appeal against the order of the District Forum was dismissed. The District Forum in its order dated 29.07.2016 after considering the evidence on record, concluded that there was deficiency in service on the part of the Petitioners and issued the following directions: 1. Respondents to credit the amount which was debited to the amount of the complainant i.e. Rs.169655.77 along with interest thereon @12% p.a. from the date of debit and to inform the complainant accordingly within 30 days from the date of this order. 2. Respondents to pay Rs.20000/- to the complainant towards mental agony caused and towards the cost of present complaint within 30 days from the date of this order. It is argued by learned Counsel for the Petitioners that the Petitioners is double jeopardiesed in the sense that they had not only remitted a sum of Rs.1,69,655.77ps. on behalf of the Respondent to the Rental Company which the Respondent had hired while in Switzerland and gave his credit card number to the said Rental Company and had also entered into an agreement with them, but the Petitioners had also been directed to refund to the Complainant the said sum and thus, the Petitioners had suffered double jeopardy. Beyond that, no argument has been forwarded on behalf of the Petitioners. I have given thoughtful consideration to the argument of learned Counsel and have perused the record submitted before me. In brief, the admitted facts of the case are that the Respondent was a Credit Card Holder of the Petitioner Company. He was on tour to Switzerland and hired car for travelling from a company called Europcar Company. The said Company had charged an amount of Rs.1,69,655.77ps. from the Respondent for some damages caused to the car by the Respondent. The Petitioner paid the said amount to the said Company i.e. Europcar Company. The case of the Complainant was that he had never authorised the Petitioner to debit his money from the Credit Card Account. Since he had hired the vehicle through credit card, the company knew that he was a Credit Card Holder of the Petitioner Company. He had claimed that the dispute was between him and the Europcar Company, to which the Petitioner had no concern. He had further contended that there was no contract/agreement between him and the Petitioner entitling the Petitioner to debit his Account on demand by any 3rd person without his consent or authority. It was his contention that the said amount was not debited from his Credit Card account on his instructions. On this contention, he had claimed deficiency in service. The defence of the Petitioner was that they had debited the said amount from the Credit Card Account of the Complainant and paid the said sum to Europcar Company on behalf of the Respondent from his credit card facility on demand from the Europcar Company in terms of the agreement between the said Company and the Respondent and that they had been unnecessarily dragged into the matter although the real dispute was between the Respondent and the Europcar Company. On these facts and on the basis of the evidence, the District Forum held as under: “Respondent banks produced copy of letter 25.06.2015 sent by Europcar to the complainant informing that they have debited his master card account, copy of clause 7 and 11 of the Agreement between Europcar and the complainant, copy of letter dated 24.07.2015 written by the complainant to the Europcar company disowning the liability of damage and photographs of damaged car. All these documents are exchanged between the complainant and Europcar. Respondents banks are not a party to the correspondence. Clause 7 and 11 are the clauses of the agreement between Europcar and the complainant. Clause 7 says that the complainant shall authorize the Europcar company to retain from the card issuer a credit that corresponds to all foreseeable obligations of complainant under the car rental agreement. It is not the defence of the respondent banks that complainant had authorized Europcar company to retain a credit under the card to the extent of amount debited to his account. Clause 11 reads about liability of lessee i.e the complainant and there is nothing to show that the respondents were authorized to debit complainant’s account. With this finding, it is clear that respondent banks have debited the complainants account without any authority to do so and as such have given deficient services. Therefore they must credit the amount back to the complainants account with interest and suitable compensation. Business of banking is business of faith. Bank is trusty of the money deposited by the account holder in his account and bank is under obligation to effect operations on the account strictly as per the instructions of owner of the account i.e. the depositor. In the present case the respondent bank has debited the account of the depositor complainant without his authority and thus violated very basic principle of faith and trust. Earlier, on understanding that the respondent bank is going to debit his account by such amount, the complainant had asked the bank not to do so and in turn the respondent bank had informed that transaction being disputed; his account will not be debited until completion of investigation. Respondents bank thereafter took a stand that they have investigated the transaction as per settled practice and then debited the account. No evidence was put forth to enlighten as to what ‘settled practice’ is. We are at loss to understand as to how it is within the duties of the respondent bank to investigate a disputed matter between two entities to which the Bank is not at all concerned. This is a business other than banking business. Further, they have unilaterally carried out the duty of arbitrator declaring that the Europcar is entitled to claim and they are entitled to debit the account of the complainant. We thus conclude that the respondent banks have acted in high handedness exceeding their defined duties apart from committing deficiency in service. The State Commission in the Appeal, on reconsideration of the evidence on record, reached to the following conclusion: “As to issue no.1: the main ground of allegation of deficiency in service as raised by the complainant is that, the opponent Bank paid the amount of Rs.1,69,655.77 to the Europcar Company Switzerland without his consent. It is further submitted by the complainant that, after having received the message i.e. “from the opponent Bank that, the Europcar Company has issued debit request for Rs.1,69,655.77 on 30.6.2015 on his HDFC credit card ending 9600 towards car validation”, the complainant immediately contacted on phone banking and instructed the Bank as not to disburse the amount as demanded by Europcar. He also sent letter dated 01.06.2015 to the opponent Bank wherein specific instructions were given to the Bank as not to disburse the amount as he was not liable to pay the amount claimed by the Europcar Company. But despite these written instructions the amount came to be disbursed. ……….. However, ld. Counsel Sh. Kulkarni for the complainant submitted that, the opponent Bank had made contrary submission i.e. in the written version it has stated that complaint was pre-matured since no amount was deducted from the account of complainant, wherein in the written notes of argument submitted by its counsel that, the amount was debited from his account. From the perusal of the record placed before us and the rival submissions made by ld. Counsel of both the parties it manifests that, the amount of Rs.1,69,655.77 was disbursed by the opponent Bank from the credit card account of the complainant without any clear instructions or consent of the complainant. It is worth to be noted that, immediately after receiving the message from opponent Bank about demand raised by Europcar Company for debiting Rs.1,69,655.77 to the credit card account to the complainant, the complainant by way of home banking and through letter dated 01.07.2015 had given clear instruction to the opponent Bank as not to disburse the amount as he was not liable for the same. It is further interesting to note that, in response to the complainant’s letter dated 01.07.2015 the opponent Bank by way of its first e-mail dated Nil had informed the complainant that it is investigating the matter and would not disburse the amount unless investigation is completed and by its second e-mail dated 06.07.2015 it had informed to the complainant that, the transaction was not billed on his account as yet. However, subsequently it appears that the opponent Bank disbursed the amount without any instructions or consent of the complainant. Although there was agreement between the Europcar Company and the complainant the opponent bank was not party to it and therefore the opponent bank had no case for making payment on behalf of the complainant without his consent. Thus this act of opponent bank does amount to deficiency in service. It was on the findings of the facts that the State Commission dismissed the Appeal. The present Revision Petition has been filed challenging the said order only on the ground that it is a case of double jeopardy. The Jurisdiction of this Commission under Section 21(b) of the Consumer Protection Act, 1986, while dealing with the Revision Petitions, has been discussed by the Hon’ble Supreme Court in the case of “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”. The Hon’ble Supreme Court has laid down the directions to be kept in mind by this Commission while dealing with the Revision Petitions. The Hon’ble Supreme Court has held as under: “23. 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 than 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 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 findings of two Fora”. It is apparent that this Commission has limited Jurisdiction while dealing with the Revision Petitions. It is the duty of the Revisionist/Petitioner to point out the illegality in the order or the wrong exercise of the Jurisdiction on the part of the Fora below. Also, it is the duty of the Petitioner/Revisionist to show that there is miscarriage of justice. In this case, there is a concurrent finding of fact on the deficiency in service on the part of the Petitioner. My attention is not drawn to any fact on record which has not been considered and so, this concurrent finding can be said to be perverse. The finding regarding the deficiency in service is based on the facts proved on record and I find no illegality in the said finding. As regards the miscarriage of justice on the ground of double jeopardy is concerned, looking at the final directions given by the District Forum, I do not find that it is a case of double jeopardy. The Revision Petition has no merit and the same is dismissed. ******** Top**

Revisional jurisdiction of the National Commission can be exercised only when there is jurisdictional error or miscarriage of justice – Credit Card cannot be debited without the consent of the cardholder

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 3192 OF 2018
(Against the Order dated 10/08/2018 in Appeal No. 815/2016 of the State Commission, Maharashtra)

MANAGER, HDFC BANK CARDS DIVISION & ANR.
P.O BOX NO-8654, THIRUVANMIYAR PO
CHENNAI - 600041    ...........Petitioner(s)
Versus
ANAND VASANT NIRGUDE
R/O BUNGLOW NO-10, HIGH CAMPUS, JALNA ROAD, AURANGABAD. MAHARASHTRA ...........Respondent(s)

BEFORE:
    HON'BLE MRS. JUSTICE DEEPA SHARMA, PRESIDING MEMBER

Dated : 04 Jan 2019

ORDER

ORAL

The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (for Short “the State Commission”), dated 10.08.2018 in Appeal No.815 of 2016, which was filed by the Petitioners against the order of the District Consumer Disputes Redressal Forum, Aurangabad (for Short “the District Forum”), dated 29.07.2016 in CC No.249 of 2015. By the impugned order, the Appeal against the order of the District Forum was dismissed. The District Forum in its order dated 29.07.2016 after considering the evidence on record, concluded that there was deficiency in service on the part of the Petitioners and issued the following directions:
1.   Respondents to credit the amount which was debited to the amount of the complainant i.e. Rs.169655.77 along with interest thereon @12% p.a. from the date of debit and to inform the complainant accordingly within 30 days from the date of this order.
2.   Respondents to pay Rs.20000/- to the complainant towards mental agony caused and towards the cost of present complaint within 30 days from the date of this order.

It is argued by learned Counsel for the Petitioners that the Petitioners is double jeopardiesed in the sense that they had not only remitted a sum of Rs.1,69,655.77ps. on behalf of the Respondent to the Rental Company which the Respondent had hired while in Switzerland and gave his credit card number to the said Rental Company and had also entered into an agreement with them, but the Petitioners had also been directed to refund to the Complainant the said sum and thus, the Petitioners had suffered double jeopardy.

Beyond that, no argument has been forwarded on behalf of the Petitioners.
I have given thoughtful consideration to the argument of learned Counsel and have perused the record submitted before me. In brief, the admitted facts of the case are that the Respondent was a Credit Card Holder of the Petitioner Company. He was on tour to Switzerland and hired car for travelling from a company called Europcar Company. The said Company had charged an amount of Rs.1,69,655.77ps. from the Respondent for some damages caused to the car by the Respondent. The Petitioner paid the said amount to the said Company i.e. Europcar Company. The case of the Complainant was that he had never authorised the Petitioner to debit his money from the Credit Card Account. Since he had hired the vehicle through credit card, the company knew that he was a Credit Card Holder of the Petitioner Company. He had claimed that the dispute was between him and the Europcar Company, to which the Petitioner had no concern. He had further contended that there was no contract/agreement between him and the Petitioner entitling the Petitioner to debit his Account on demand by any 3rd person without his consent or authority. It was his contention that the said amount was not debited from his Credit Card account on his instructions. On this contention, he had claimed deficiency in service.

The defence of the Petitioner was that they had debited the said amount from the Credit Card Account of the Complainant and paid the said sum to Europcar Company on behalf of the Respondent from his credit card facility on demand from the Europcar Company in terms of the agreement between the said Company and the Respondent and that they had been unnecessarily dragged into the matter although the real dispute was between the Respondent and the Europcar Company. On these facts and on the basis of the evidence, the District Forum held as under:

    “Respondent banks produced copy of letter 25.06.2015 sent by Europcar to the complainant informing that they have debited his master card account, copy of clause 7 and 11 of the Agreement between Europcar and the complainant, copy of letter dated 24.07.2015 written by the complainant to the Europcar company disowning the liability of damage and photographs of damaged car. All these documents are exchanged between the complainant and Europcar. Respondents banks are not a party to the correspondence. Clause 7 and 11 are the clauses of the agreement between Europcar and the complainant. Clause 7 says that the complainant shall authorize the Europcar company to retain from the card issuer a credit that corresponds to all foreseeable obligations of complainant under the car rental agreement. It is not the defence of the respondent banks that complainant had authorized Europcar company to retain a credit under the card to the extent of amount debited to his account. Clause 11 reads about liability of lessee i.e the complainant and there is nothing to show that the respondents were authorized to debit complainant’s account. With this finding, it is clear that respondent banks have debited the complainants account without any authority to do so and as such have given deficient services. Therefore they must credit the amount back to the complainants account with interest and suitable compensation.

       Business of banking is business of faith. Bank is trusty of the money deposited by the account holder in his account and bank is under obligation to effect operations on the account strictly as per the instructions of owner of the account i.e. the depositor. In the present case the respondent bank has debited the account of the depositor complainant without his authority and thus violated very basic principle of faith and trust.

      Earlier, on understanding that the respondent bank is going to debit his account by such amount, the complainant had asked the bank not to do so and in turn the respondent bank had informed that transaction being disputed; his account will not be debited until completion of investigation. Respondents bank thereafter took a stand that they have investigated the transaction as per settled practice and then debited the account.

        No evidence was put forth to enlighten as to what ‘settled practice’ is. We are at loss to understand as to how it is within the duties of the respondent bank to investigate a disputed matter between two entities to which the Bank is not at all concerned. This is a business other than banking business. Further, they have unilaterally carried out the duty of arbitrator declaring that the Europcar is entitled to claim and they are entitled to debit the account of the complainant. We thus conclude that the respondent banks have acted in high handedness exceeding their defined duties apart from committing deficiency in service.

The State Commission in the Appeal, on reconsideration of the evidence on record, reached to the following conclusion:
“As to issue no.1: the main ground of allegation of deficiency in service as raised by the complainant is that, the opponent Bank paid the amount of Rs.1,69,655.77 to the Europcar Company Switzerland without his consent. It is further submitted by the complainant that, after having received the message i.e. “from the opponent Bank that, the Europcar Company has issued debit request for Rs.1,69,655.77 on 30.6.2015 on his HDFC credit card ending 9600 towards car validation”, the complainant immediately contacted on phone banking and instructed the Bank as not to disburse the amount as demanded by Europcar. He also sent letter dated 01.06.2015 to the opponent Bank wherein specific instructions were given to the Bank as not to disburse the amount as he was not liable to pay the amount claimed by the Europcar Company. But despite these written instructions the amount came to be disbursed.
………..
However, ld. Counsel Sh. Kulkarni for the complainant submitted that, the opponent Bank had made contrary submission i.e. in the written version it has stated that complaint was pre-matured since no amount was deducted from the account of complainant, wherein in the written notes of argument submitted by its counsel that, the amount was debited from his account. From the perusal of the record placed before us and the rival submissions made by ld. Counsel of both the parties it manifests that, the amount of Rs.1,69,655.77 was disbursed by the opponent Bank from the credit card account of the complainant without any clear instructions or consent of the complainant. It is worth to be noted that, immediately after receiving the message from opponent Bank about demand raised by Europcar Company for debiting Rs.1,69,655.77 to the credit card account to the complainant, the complainant by way of home banking and through letter dated 01.07.2015 had given clear instruction to the opponent Bank as not to disburse the amount as he was not liable for the same. It is further interesting to note that, in response to the complainant’s letter dated 01.07.2015 the opponent Bank by way of its first e-mail dated Nil had informed the complainant that it is investigating the matter and would not disburse the amount unless investigation is completed and by its second e-mail dated 06.07.2015 it had informed to the complainant that, the transaction was not billed on his account as yet. However, subsequently it appears that the opponent Bank disbursed the amount without any instructions or consent of the complainant. Although there was agreement between the Europcar Company and the complainant the opponent bank was not party to it and therefore the opponent bank had no case for making payment on behalf of the complainant without his consent. Thus this act of opponent bank does amount to deficiency in service.

It was on the findings of the facts that the State Commission dismissed the Appeal.

The present Revision Petition has been filed challenging the said order only on the ground that it is a case of double jeopardy.

The Jurisdiction of this Commission under Section 21(b) of the Consumer Protection Act, 1986, while dealing with the Revision Petitions, has been discussed by the Hon’ble Supreme Court in the case of “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”. The Hon’ble Supreme Court has laid down the directions to be kept in mind by this Commission while dealing with the Revision Petitions. The Hon’ble Supreme Court has held as under:

“23.   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 than 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 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 findings of two Fora”.

It is apparent that this Commission has limited Jurisdiction while dealing with the Revision Petitions. It is the duty of the Revisionist/Petitioner to point out the illegality in the order or the wrong exercise of the Jurisdiction on the part of the Fora below. Also, it is the duty of the Petitioner/Revisionist to show that there is miscarriage of justice. In this case, there is a concurrent finding of fact on the deficiency in service on the part of the Petitioner. My attention is not drawn to any fact on record which has not been considered and so, this concurrent finding can be said to be perverse. The finding regarding the deficiency in service is based on the facts proved on record and I find no illegality in the said finding. As regards the miscarriage of justice on the ground of double jeopardy is concerned, looking at the final directions given by the District Forum, I do not find that it is a case of double jeopardy.

The Revision Petition has no merit and the same is dismissed.

**********