BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> <br /> 2. M.N.MANOHARA, B.A., LLB., Member,<br /> <br /> 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, <br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.86/2009<br /> <br /> Order dated this the 10th day of December 2009<br /> <br /> COMPLAINANT/S <br /> <br /> Sri.Ashoka B.N. R/o Bevina Kuppe Village, Kasaba Hobli, Pandavapura Taluk.<br /> <br /> (By Sri.M.S.Kumar., Advocate)<br /> <br /> -Vs-<br /> <br /> OPPOSITE PARTY/S<br /> 1. The Manager, India Info Line Limited, Nirlon Complex, Garegaon (E), Maharastra State Branch.<br /> 2. The Manager, India Info Line Ltd., Narayana Shastri Road, Mysore City.<br /> 3. Sri.C.S.Sanjay C/o Puttaswamy Gowda, R/o Hirode Beedi, Pandavapura Town, Mandya District. (Exparte)<br /> <br /> (By Sri.C.L.Shivakumar., Advocate)<br /> <br /> Date of complaint 17.07.2009<br /> Date of service of notice to<br /> Opposite parties 03.08.2009<br /> Date of order 10.12.2009<br /> Total Period 4 Months 7 Days<br /> Result The complaint is dismissed. However, there is no order as to costs. <br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming Rs.1,09,800/- alleging deficiency in service.<br /> 2. The case of the Complainant is that the 1st Opposite party is the investing company and having business of finance investments by taking investments from the customers and acting as well as the commission Agent 2nd Opposite party is the Branch Manager of 1st Opposite party and 3rd Opposite party is the Relationship Manager of 1st Opposite party. The Complainant is the one of the investor and customer of 1st Opposite party. As per the agreement, the Opposie party must invest the money of the customers to the different companies with consent of the customers and it is also the duty of the Opposite parties to inform the day to day affairs to the customers. The Complainant has made investment of Rs.40,000/- in November 2008 with 1st Opposite party. The Opposite parties have made an illegal transaction from the account of the Complainant without the consent of the Complainant and incurred a loss of Rs.52,000/-. As the Complainant had not received any information about his invested amount, he applied for copies of transaction before the 2nd Opposite party. Then only the Complainant came to know the above said illegal and negligent act of the Opposite parties. Immediately he approached the 2nd & 3rd Opposite parties and asked them to compensate the loss suffered by him. There was no proper reply from 1st & 2nd Opposite parties. Therefore, the Complainant got issued legal notice on 23.06.2009. The 2nd & 3rd Opposite parties neither replied nor fulfilled the loss incurred by the Complainant. Therefore, he has sought for loss of Rs.52,000/- with interest at Rs.7,800/- and compensation of Rs.50,000/- totally Rs.1,09,800/-.<br /> 3. The notices were served on Opposite parties 1 to 3. The 3rd Opposite party has remained absent and so he is placed exparte. <br /> 4. The 1st & 2nd Opposite parties have filed common version. It is contended that the Complainant is not a Consumer as the Complainant purchases and sells the shares and he is a trader and not the consumer as per the Act. It is contended that 1st Opposite party is a registered company and registered as member of National Stock Exchange of India and also registered with Security Exchange Board of India. The Complainant voluntarily came and approached the Opposite party to become member to do stock trade business with the Opposite party and entered into Broker Client Agreement and understanding the terms and conditions has signed the number of documents. The Complainant has agreed about the profit and loss of the transactions in the share market. The Complainant cannot approach the Forum in view of the terms of the agreement that any dispute between the parties shall be subjected to the arbitrator procedure and submitted to the jurisdiction of the Courts in Mumbai. The Complainant had agreed to receive the digital contract notes through internet to his unique client ID or to his designated E-mail ID and he has also agreed to confirm all the transactions if the same has not been objected within 24 hours to the Opposite party. The Complainant has agreed to take responsibility for all the transactions conducted by the Opposite parties, using the E-broker service and it shall not be an option to the client to contend or try and avoid a transaction on the allegation that a trade conducted on its account using the password allotted to the client was not a transaction done by or on behalf of the client. All the transactions started with the permission and consent of the Complainant and information and accounts are sent through internet, E-mail and statement of accounts were entered into the customers trade account. The Opposite party is deligent, careful and prompt in dealing with the transaction and immediately it transfers through its auto generated server to their respective E-mail ID and customers trade account. There is no question of deficiency in service at any given point of time. The Complainant has not clearly specified what is the loss he has suffered and how he has suffered. The details of transaction held in the Complainant’s account have been sent to his E-mail ID i.e., kiran uppi@yahoo.co.in, which has provided at the time of signing the agreements. Further, the Complainant has never questioned the alleged transactions within 24 hours as agreed. The Complainant was regularly visiting the Opposite party Branch Office and collected the contract notes and his signature on the client contract notes ledger and 1st Opposite party has supplied all the details of transactions through his account and through E-mail. The Opposite party is not liable to compensate any loss to the Complainant in view of the agreement. Therefore, the complaint is liable to be dismissed. The Complainant has received Rs.7,000/- from 2nd Opposite party by way of cheque on 01.01.2009. The Complainant has not proved any negligence on the part of the Opposite party. Only on the instructions and powers given by the Complainant, the Opposite parties have performed the transactions and sold the nifty-mini. In this regard, the Opposite party has incurred loss of Rs.10,000/-, the Complainant should pay the amount of Rs.10,000/- to the 2nd Opposite party. The 2nd Opposite party issued legal notice to the Complainant on 23.06.2009, but it is returned back as the Complainant purposefully avoided. Therefore, the complaint is liable to be dismissed with costs.<br /> 5. During trial, the Complainant is examined and the Complainant has produced the documents Ex.C.1 to C.10. The 2nd Opposite party is examined and Ex.R.1 to R.7 are produced. <br /> 6. We have heard the both sides.<br /> 7. Now the points that arise for our considerations are:-<br /> 1. Whether the Complainant is a Consumer?<br /> 2. Whether this Forum has no jurisdiction to entertain the complaint?<br /> 3. Whether the 1st & 2nd Opposite parties have committed deficiency in service?<br /> 4. Whether the Complainant is entitled to relief sought for?<br /> 8. Our findings and reasons are as here under:-<br /> 9. POINTS NO.1 & 2:- The undisputed facts borne out from the materials on record are that the 1st Opposite party is doing business of finance investment by taking investment from the customers acting as a commission Agent and Complainant has invested Rs.40,000/- to invest the said amount in share market and the Complainant has executed the account opening form as per Ex.R.1 which contains the terms and conditions and the Opposite party has conducted business of investment transaction on behalf of the Complainant on commission basis.<br /> 10. The Opposite party has taken contention that the Complainant is not a Consumer, because the contract entered into is a personal contract dealing in share market on payment of commission and not any service charges. The brokers are selling or purchasing shares in their own name and the contract between the seller and broker are principal to principal, while selling / purchasing the shares, also the price or purchase price including the commission, the relationship between the seller and the broker is the relationship providing service for consideration by charging commission. Therefore, the Complainant will become a Consumer within the meaning of Section 2(1)(d) of the Act, as per the decision reported in 1993(2) CPR page 463, in the case of Indravadan Choksey –Vs- Hitesh Dinesh. In 1993(1) CPJ page 3 in the case of Rama Narayan Iyer -Vs- Larson and Turbo Ltd., it is held that the share holder can approach the Consumer Forum if has suffered loss due to deficiency in service and negligence on the part of the Opposite parties.<br /> 11. Admittedly, the Opposite party is the authorized agent of the Complainant by way of agreement to conduct trade in respect of the shares of the Complainant and admittedly for such transaction, the Opposite party collects brokerage, which is nothing but commission as admitted by R.W.1. Therefore, the transaction of the shares on behalf of the Complainant by the Opposite party receiving the commission amounts to providing service on payment. Therefore, the Complainant is a Consumer.<br /> 12. The Opposite party has taken contention that the District Forum, Mandya has no jurisdiction to entertain the Complaint in view of the agreement that all the disputes arising out of the agreement shall be subjected the arbitration in Bombay and subjected to the jurisdictional courts in Mumbai. But, nowhere in the agreement, we find that specifically the Complainant is barred from approaching any other authority provided under law. As per Section 3 of the Consumer Protection Act, 1986, the provisions of this Act are in addition and not in derogation of the provisions of any other law for the time being in force. The rights and remedies under the Act cannot be curbed either by arbitration provision agreement entered into between the parties. Therefore, the Complainant is the Consumer of the Opposite parties and the agreement was entered into within the Mandya District. So this Forum has jurisdiction to entertain the complaint. Therefore, the defence of the Opposite party that this Forum has no jurisdiction to entertain the complaint is devoid of merits and hence is rejected. <br /> 13. The grievance of the Complainant is that the Opposite party as an agent of the Complainant as per the agreement has not performed the duties in investment of amount in shares and due to negligence i.e., doing share transaction business without consent of the Complainant has caused loss, thereby Opposite party has committed deficiency in service. But, according to the Opposite party, the share transaction was informed to the Complainant through phone, SMS messages and also through E-mail to the E-mail ID given by the Complainant as mentioned in the agreement Ex.R.1 and the Complainant is liable for any risk of loss or profit and therefore, the Opposite party has not committed any negligence or deficiency in service. If the Complainant was aggrieved by the transaction, soon after receipt of the message SMS or E-mail should have objected to cancel the transaction within 24 hours, but the Complainant has kept quiet. Therefore, the Opposite party is not liable to pay any loss to the Complainant.<br /> 14. Though, it is pleaded that the Complainant has not explained what is the loss he has suffered and how has suffered the loss, but it is commonsense that if the investor looses money from the amount deposited in share market, he will come to know the loss or profit seeing transaction documents and the documents furnished by the Opposite party proves the loss. The Complainant has produced Ex.C.2 the transaction sheet from 01.04.2009 to 05.06.2009 and it shows loss of Rs.36,238/-. On the back of Ex.C.2, we find the loss of Rs.545/- in the transaction deducted between 01.06.2008 to 31.03.2009.<br /> 15. The contention is that the Complainant entered in to an agreement as per Ex.R.1 on 12.11.2008 and the E-mail sheet Ex.R.7 produced starts from October 17th and therefore, it is not related to the Complainant and the Opposite party has not produced the statement of accounts has pleaded in para – 7 and 8 of the version. It is contended that the Opposite party has not pleaded the execution of the authorization letter, but has produced and therefore, it is a concocted. But, the Complainant has admitted in his evidence about the execution of the authorization letter as per Ex.R.2.<br /> 16. The main grievance of the Complainant is that the share transactions conducted by 1st Opposite party are without the consent and knowledge of the Complainant. Conceeding that the details of the share transaction were not sent through E-mail, but the Complainant in his cross-examination has admitted that he used to make phone call often and often to 2nd Opposite party. He has admitted that on 01.01.2009 he has drawn Rs.7,000/-, after receiving the cheque from Mysore Branch, delivered by 3rd Opposite party. He has admitted that after investment of the amount, he did not enquire about loss or profit. He has admitted that the 2nd Opposite party was sending SMS, in spite of SMS messages, he did not submit any protest about the investment. It is admitted that as per the agreement if the Opposite party Company invest the amount in any share, the Complainant should submit objections within 24 hours and in that regard, the Complainant has not submitted any objections for investment made by the Opposite party on behalf of the Complainant from time to time. Further, in the cross-examination, though the Complainant deposed that the Opposite party did not give the E-mail ID, the Complainant deposed that he replied that he has no E-mail ID and at that time Opposite party told that E-mail ID of kiran would be entered in the application and for this, he did not object. He has deposed that is not aware that to E-mail ID they were sending the accounts details. Further, the Complainant has produced Ex.C.10 and contended that though he tried to get the messages through the E-mail ID of kiran uppi@yahoo.co.in but no such messages was sent in view of Ex.C.10. But according to the Complainant, he does not know the password for that E-mail ID. It is well known that without password mere use of E-mail ID will not give the details of the messages sent to the particular E-mail ID. Without password one cannot see what are the messages sent to the particular E-mail address. Therefore, it is doubtful to believe, the evidence of the Complainant that transaction of the share done by the Opposite party on behalf of the Complainant were not sent through E-mail given by the Complainant. It is known that the profit or loss will be depend upon the share market and it varies from hour to hour or day to day and it will be fluctuating and it is subjected to loss or profit. When admittedly, when SMS were sent by the Opposite party through his phone and other phones contact given by the Complainant as per Ex.C.6 call details and receipt of messages to his cell phone, the Complainant is estopped from contending that without his knowledge and consent, his amount was invested in share market causing loss. Therefore, the Complainant has not come to Court with clean hands. Therefore, the Complainant has failed to prove the negligence or deficiency in service against the Opposite parties. <br /> 17. In view of our finding on point no.3, the Complainant is not entitled to the amount claimed in the complaint and the Complainant is not entitled to any relief.<br /> 18. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is dismissed. However, there is no order as to costs. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 10th day of December 2009).<br /> <br /> (PRESIDENT) (MEMBER) (MEMBER)