Date of Complaint : 19.01.2010
Date of Order :13.04.2016
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3
PRESENT : THIRU. B. RAMALINGAM, M.A.M.L., : PRESIDENT
TMT.K. AMALA, M.A. L.L.B., : MEMBER – I
DR.T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.No. 171 / 2010
THIS WEDNESDAY 13TH DAY OF APRIL 2016
A. Kandaswami (decased),
2. A. Kamaldevi, wife and
K. Jayasekar, son
48, Solomon Street,
East Tambaram,
Chennai 600 059. .. Complainant.
- Vs-
M/s. Aditya Birla Commodities Broking Ltd., No.55, Greams Road, Chennai 600 006. .. Opposite party. | | .. Opposite party. |
| | |
For the complainant : M/s.C.Hanumantha Rao
For the opposite party : Exparte
ORDER
THIRUMATHI.K.AMALA, :: MEMBER-I
1. Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite party to pay a sum of Rs.29,920/- along with interest and also to pay a sum of Rs.50,000/- for mental agony and cost the compliant.
2. Even after receipt of the notice from this forum in this proceeding, the opposite party did not appear before this Forum and did not file any written version. Hence the opposite party was set exparte on 1.2.2012.
3. Perused the complaint, and the documents Ex.A1 to Ex.A3 filed by the complainant and proof affidavit and the entire C.C. records and considered the arguments of the complainant’s counsel.
4. The complainants contended that 1st complainant purchased three lots of gold from the opposite parties under their golden scheme on 1.2.2008, 29.7.2008, and 8.9.2008 respectively. The 1st complainant sold the first lot on 28.5.2008 and the 2nd lot on 3.10.2008. He was waiting to sell the 3rd lot only when the gold price is quoted at Rs.1,540/- per gram. But the opposite party without informing or taking consent from him sold the third lot of gold at a low price. Subsequently he received a cheque for Rs.19,296/- on 16.11.2008 without any statement of account or covering letter. Then the 1st complainant came to know that the said amount is the value of the 3rd lot of gold sold by the opposite party. so he complained to the Executive Director of the opposite party orally and writing several times but there was no reply. Finally he met the authorities on 27.8.2009 but there was no fruit full result. He also insisted for statement of accounts for which the opposite party provided a statement of account which was cooked up and fabricated one. He was also informed by the Mr.V.G.Santhanam, Sub broker that the 3rd lot was sold by the opposite party at Rs.12,408/- per 10 gram which is much below the target. If the opposite party had sold the 3rd lot at price of Rs.15,400/- he would have earned a profit of Rs.29,920/-. The complainants states that the opposite parties action in selling the 3rd lot of gold without getting any authority or instruction at a low price is illegal and thereby they had committed deficiency in service. Hence the 1st complainant also issued legal notice dated 20.11.2009 to compensate for the deficiency in service of opposite party which was received by them but failed to send any reply. Hence the above complaint is filed to direct the opposite party to pay Rs.29920/- together with interest at 24% p.a. and Rs.50,000/- towards mental aongy and cost of the complaint.
5. On perusing the complaint, it reveals that originally the complaint was filed against Apollo Sindhoori Commodities Trading Limited. The opposite party appear in the case on 24.9.2010 and filed an affidavit in CMP No.200/2011 stating that their name has been changed as Aditya Brila Commodities Broking Limited. Accordingly the name of the opposite party was amended as per in CMP 200/2011, dated 19.7.2011. It also reveals that originally the complaint was filed by the 1st complainant. Due to the death of the 1st complainant, the 2nd and 3rd complainants were impleaded as his legal heirs as per order in CMP No.50/2014, dated 3.9.2014.
6. On perusal of the complaint, it is found that the 1st complainant purchased three lots of gold from the opposite party under their golden scheme on 1.2.2008, 29.7.2008, and 8.9.2008 respectively. The 1st complainant sold the first lot on 28.5.2008 and the 2nd lot on 3.10.2008. The main grievance of the complainant is that when the 1st complainant was waiting to sell the 3rd lot only when the gold price is quoted at Rs.1,540/- per gram, the opposite party had sold the 3rd lot of gold at low price and sent a cheque for Rs.19,296/- on 16.11.2008 without any statement of account and covering letter. The 1st complainant was informed by a sub-broker that the 3rd lot was sold by the opposite party at Rs.12,408/- per 10 gram which is much below the target. Whereas if the opposite party had sold the 3rd lot at price of Rs.15,400/- the 1st complainant would have earned a profit of Rs.29,920/-. Hence he attributed allegations against the opposite party that they sold the 3rd lot at very low price and incurred loss to him. His further grievance is that the statement of account sent by the opposite party was cooked up and fabricated one. When he sent legal notice to the opposite party they did not respond it even after receipt of notice and thereby committed deficiency in service.
7. The grievance raised in the alleged transaction is trading gold with the opposite party i.e. buying and selling of gold which is evidenced through Ex.A2 which clearly shows that it is commercial transaction. The facts of the case proves that the 1st complainant had availed the service of the opposite party for doing trading gold.
8. Further Sec.2 (1) (d) (ii) of the C.P. Act 1986 it read as follows:
“(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of ] the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] “
Hence as per the above provision of the act the grievance of the complainant is raised out of commercial transaction and as such he will not come under the purview of consumer and as such complaint is not maintainable under Consumer Protection Act 1986. Moreover the complainants has not averred either in the complaint or in the proof affidavit that he had availed the service of the opposite party for his personal benefit or for self employment.
9. Furthermore there are certain allegations leveled against the opposite party that they had committed illegal activities in fabricating statement of account which clearly shows that the complainant is entitled to take only criminal action against the opposite party and such proceedings will not come under the purview of this forum. since such allegations invites elaborate evidence to be tried in the appropriate court of law. Though the 1st complainant had sent legal notice to the opposite party which was received by them and not responded the complainants are duty bound to establish their case.
10. Hence we are of the considered view that the 1st complainant had availed the service of the opposite party for commercial transaction which is not maintainable before this forum, since the complaint will not come under the purview of Consumer Protection Act 1986 as per Sec.2 (1) (d) (ii).
11. Therefore considering the facts and circumstances of the case we are of the considered view that since the grievance of the complainant raised out of transactions of trading in gold which is purely commercial in nature and profit motive the complainant cannot said to be a consumer and complaint will not come under the purview of the Consumer Protection Act 1986 and as such it is not maintainable and liable to be dismissed. However, the complainants are at liberty to file civil suit. The time spent by the complainants before this Forum is excluded for the purpose of limitation under Sec.14 of The Limitation Act.
In the result, the complaint is dismissed. No cost.
Dictated directly by the Member-I to the Assistant, transcribed and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the 13th day of April 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s Side documents :
Ex.A1- 20.11.2009 - Copy of notice sent by the complainants counsel to the
opposite party
Ex.A2- 27.11.20009 - Copy of Postal Ack. duly signed by the opposite party
Ex.A3 - - - Copy of Statement of account given by the opposite party to the
Complainant.
Opposite party’s side documents: -
.. Nil .. (exparte)
MEMBER-I MEMBER-II PRESIDENT.
