BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 26/11/2008

Date of Order : 04/06/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 451/2008

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :-

The complainant is holding an S.B. Account and a DEMAT account with the opposite parties. The complainant noticed certain irregularities in the accounts since 17-11-2007. An amount of Rs. 20,461.09 towards spot selling of shares has been credited twice to the complainant's account. The same account has been credited on 17-11-2007 in the S.B. Account which is not reflected in the DEMAT account. In spite of repeated requests for clarification, the opposite party failed to respond to. Without giving a reply and contacting the complainant, the opposite parties sold the shares of ADVLAB & PRHSP held by the complainant. The opposite parties in its mail dated 04-08-2008 have stated that they requested the complainant to fund the opposite parties account to debit the excess amount. The excess amount has not been detailed till date. On 12-01-2008, the complainant's S.B. Account was having a credit of Rs. 50,000/-. An amount of Rs. 10,976/- was debited from the complainant's account without notice. The shares amounting to Rs. 14,280/- was not released by the opposite parties and ceased to operate even after debiting the amount from the account. The complainant caused to issue a lawyer notice to the opposite parties stating his grievances, but to no avail. As the opposite parties debited the entire amount in the account, the members of his family could not operate the same, thereby they were in distress. The complainant is entitled to get a total compensation of Rs. 12 lakhs from the opposite parties due to their deficiency in service and the consequential loss, injury and hardships sustained by the complainant. Thus, the complainant is before us seeking direction against the opposite parties to pay the compensation and costs of the proceedings.

2. The version of the 1^st and 2^nd opposite parties :

The speculative transaction and services were availed for commercial purpose are not covered within the definition of consumer as per Section 2 (d) of the Consumer Protection Act. The 1^st and 2^nd opposite parties offer online booking services to its clients through the online portal. In any event, the dispute between the parties have to be resolved through arbitration provided in the Rules and Regulations of National Stock Exchange of India Ltd. The complainant had a loss of Rs. 12,937.50 as on 15-11-2007, out of which Rs. 12,811.94 could not be recovered from the complainant's bank account due to insufficient funds. The complainant had also sold a few shares on the same day involving a total pay-out amount of Rs. 20,461.09. The amount was credited to the complainant's linked account on 16-11-2007. After crediting the payment amount an amount of Rs. 12,811.94 was debited from the complainant's bank account towards the outstanding amount. However, an amount of Rs. 20,461.09 was again credited by system to the complainant's Bank Account by mistake on 17-11-2007. Thus, the opposite party was bonafide in recovering the excess amount credited to the complainant's Bank account which was duly informed to the complainant. The allegation of the complainant are false incorrect with an intention to extort undue amount from the opposite parties.

3. This Forum vide order dated 13-08-2010 closed the proceedings in the complaint, since the reliefs sought for by the complainant was beyond the pecuniary jurisdiction of the Forum. The complainant preferred appeal against the order and the Hon'ble Kerala State Consumer Disputes Redressal Commission vide order dated 04-02-2012 passed the following order :

“The appellant/complainant has submitted that the compensation amount claimed was really Rs. 12 lakhs from all the opposite parties and that if there is any ambiguity he shall carry out the required amendment. In the circumstances, the order of the Forum is set aside and the matter is remitted back to the Forum. Forum is directed to permit the complainant to effect the required amendment.

In the result, the appeal is allowed. The matter stands posted before the Forum 09-03-2012.”

In furtherance of the above order, the complainant filed I.A. 147/2012 to get the complaint amended and the same was allowed.

4. In spite of service of notice from this Forum, the additional 3^rd opposite party did not turn up for their own reasons. The complainant was examined as PW1 and Exts. A1 to A7 were marked on his wide. No oral evidence was adduced by the opposite parties. Exts. B1 to B6 were marked on the side of the 1^st and 2^nd opposite parties. Heard the counsel for the contesting parties.

5. The points that came up for consideration are :

1. Whether the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get a compensation of Rs.12 lakhs from the opposite parties?

3. Whether the opposite parties are liable to pay the costs of the proceedings to the complainant?

6. Point No. i. :- Firstly, the learned counsel for the opposite party contended that the complaint is not maintainable, since the complainant was engaged in trading of shares which amounts to commercial activity. Secondly as per Ext. B3 contract note, the dispute must be referred for arbitration.

7. According to the Hon'ble National Consumer Disputes Redressal Commission if the purpose of investing money in shares not for commercial gain the investor is a consumer as per the provisions of the Consumer protection Act. (India Bulls Financial Services Ltd. & Anr. Vs. Varghese Skaria & Anr. II (2012) CPJ 382 (NC). The Hon'ble Apex Court even as early as in 1996 held in Fair Air Engineers Vs. N.K. Modi 1996 CTJ 749 (SC) (CP), that despite the provision of arbitration clause in the agreement, a consumer can validly opt for action under the Consumer Protection Act.

8. In view of the above authority considering the opinion of the higher wisdom that consumer is king. We have no hesitation to hold that the complainant is a consumer and this complaint is maintainable in this Forum.

9. Point Nos. ii. and iii. :- The crux of the case of the complainant is that his demat account does not tally with the S.B. account. According to him, an amount of Rs. 20,461.09 towards spot selling of shares was credited twice to the complainant's account on 16-11-2007 and 17-11-2007. On the contrary, the opposite parties contend that an amount of Rs. 20,461.09 was mistakenly credited to the complainant's account on 17-11-2007. Therefore on 19-12-2007, 02-05-2008 and 05-06-2008, the opposite parties sent messages to the online trading account of the complainant informing him to allocate sufficient funds in his account to met the excess payment. During evidence, the complainant admitted the receipt of the above notices, however, he took a stand that since there was sufficient funds in his account at that time, he did not respond to. Neither parties did produce the bank account statement at the relevant point of time for reasons of their own and unexplained. However, the complainant caused Ext. A5 letter dated 04-09-2008 to the 1^st and 2^nd opposite parties highlighting his grievances. Though the opposite parties received the same, there was no response the above conduct of the 1^st and 2^nd opposite parties amounts to deficiency in service on their part for which they are answerable having put the complainant put to unnecessary inconveniences. Moreover, the 1^st and 2^nd opposite parties blocked the shares of the complainant without issuing notice to the complainant. It is to be noted that no evidence is on record to quantify the alleged loss sustained by the complainant due to the blockage of shares by the 1^st and 2^nd opposite parties in spite of a complaint raised. Furthermore, the messages sent by the opposite parties are not self-explanatory. During evidence, the complainant stated that his lawyer would clarify regarding the tall claims of compensation of Rs. 12,30,000/-. But nothing is coming forth in explanation or clarification on the part of the complainant to substantiate or quantify the same. Considering the entire evidence in this case, we adjudge that in the face of facts in actuality and in necessity, we allow a compensation of Rs. 20,000/- to abate the agony of the complainant not to mention which includes costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 4^th day of June 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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