Delhi

StateCommission

A/574/2015

MAMTA GUPTA - Complainant(s)

Versus

KOTAK MAHINDRA BANK - Opp.Party(s)

08 May 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 08.05.2017

 

First Appeal No. 574/15

(Arising out of order dated 28.10.2015 passed by the Consumer Disputes Redressal Forum-II, New Delhi in Complaint Case No. 254/14)

 

 

        In the Matter of:

 

                Mamta Gupta

         W/o Sh. Lenin Gupta,

         R/o B-4/38, First Floor,

         Safdarjung Enclave,

         New Delhi-110029

 

……Appellant     Versus     1. Kotal Mahindra Bank A-a/24, Safdarjung Enclave, New Delhi-110029   2. Kotak Mahindra Bank Reg Office- 27 BKC, C-27 G Block, Bandra Kurla Complex, Bandra E, Mumbai-4                                                                            …….Respondents

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

 

 

 

 

 

 

 

 

Justice Veena Birbal, President

1.             This is an appeal u/s 15 of the Consumer Protection Act (in short ‘the Act’) wherein challenge is made to order dated 28.10.2015 passed by the Consumer Disputes Redressal Forum-II, Qutub Institutional Area, New Delhi in Complaint Case No. 254/2014 whereby the aforesaid complaint has been dismissed.

2.             A complaint u/s 12 of the Act was filed by the appellant herein i.e. complainant before the Ld. District Forum stating therein that appellant/complainant was having a savings account with respondent/OP. It was alleged that the appellant/complainant had received a call from the official of respondent/OP whereby she was advised for investment in SBI bond  funds. On the said advice, the appellant/complainant had purchased SBI Funds for Rs. 3 Lakh on 06.11.2012 and Rs. 6 Lakh in June 2013 vide folio No. 13579901 from respondent/OP as a broker with assurance that she would get return of 12% per annum. It was alleged that appellant/complainant was not provided the said funds in her demat account by respondent/OP. It was alleged that appellant/complainant was advised to open her investment account for online management of funds for which appellant/complainant signed the form three times in November 2012 and June 2013 and also provided all the documents but the investment account was never opened. On 15.07.2013 the appellant/complainant had received a copy of statement of the SBI Funds and found that the fund value was less than the amount which appellant/complainant had invested. Later on appellant/complainant also read in news that bond funds would fall further as such the appellant/complainant decided to redeem her SBI Funds. However, appellant/complainant was not attended by the official of respondent/OP when she visited the concerned branch. Thereafter, appellant/complainant contacted number of officials in the bank but appellant/complainant was not attended properly. On 15.08.2013 the respondent/OP finally agreed for redemption and appellant/complainant got Rs. 34,516/- less than the invested amount. It was alleged that appellant/complainant was not informed at the time of investment that the fund value could be reduced as per market conditions. It was alleged that on 10.03.2014 the appellant/complainant made a written complaint to the respondent/OP but no response of received. It was alleged that there was deficiency in service on the part of respondent/OP as the appellant/complainant had suffered loss of Rs. 34,500/- in her capital and Rs. 18,000/- as FD interest of 3 Lakhs for nine months and Rs. 40,000/- for mental harassment, agony as well  as other losses. The appellant/OP had prayed that respondent/OP be directed to pay Rs. 52,500/- along with compensation of Rs. 40,000/- towards mental pain and agony undergone by her and had also prayed towards costs.

3.             The complaint was opposed by the respondent/OP by filing a written statement wherein it was stated that appellant/OP invested Rs. 3 Lakh in SBI Dynamic Bond Funds on 06.11.2012 from her Savings Account maintained with respondent/OP. The said investments were giving good results. In June 2013 the appellant/complainant expressed her desire to invest  again in mutual funds and appellant/complainant was shown the list of investments, out of which she opted for SBI Mutual Magnum Income Fund. It was alleged that all the necessary information/documents were given to the appellant/complainant which also stated the risk involved in investments in said mutual fund. However, appellant/complainant of her own invested in aforesaid mutual fund. It was alleged t hat there was no delay in redemption on the part of the appellant/OP as the concerned mutual fund schemes pertain to SBI Mutual Funds and not to the appellant/OP Bank. It was stated that the appellant/complainant was receiving e-mail statements directly by SBI Mutual Funds. It was alleged that appellant/complainant was actively participating in the trade of shares and securities and as such it could not be said that appellant/complainant was not aware of implications of trading/dealing with market linked investment, instruments/schemes including the mutual fund schemes. It was alleged that complaint filed by her was liable to be rejected.

4.             Both the parties filed evidence in the form of affidavits.

5.             After hearing the parties, the Ld District forum dismissed the complaint relying upon the judgment of UTI Vs. Sabitri Devi Agarwal, II (2000) CPJ 9 (NC).

6.             Aggrieved with the aforesaid order, the present appeal is filed.

7.             We have heard, appellant who is appearing in person and Ms. Zeba Khair, Advocate for the respondent.

8.             Appellant/complainant has contended that she is asking for compensation for deficiency in service on the part of respondent/OP and the District Forum is wrong in dismissing the complaint. It is contended that the respondent/OP did not credit her aforesaid mutual funds in demat account. Had it been done she could have got her fund redeemed immediately.

9.             The stand of the respondent/OP is that appellant/complainant is not a ‘consumer’ as the present case relates to investment in mutual fund which is subject to market risk and the same is not covered under the Act. It is further contended that appellant/complainant never made any request for crediting mutual fund in her demat account. It is further contended that appellant/OP is an educated woman and she was informed about the risk involved in the same and the District Forum has rightly passed the impugned order.

10.            The relevant findings of the Ld. District Forum is as under:

                        “It is not in dispute that Complainant had invested Rs. 3 lakhs in 2012 and Rs.  6 lakhs in 2013 with the OP in mutual fund. She entered into a speculative transaction which is subject matter to the market risks. The Consumer Protection Act is not for entertaining or compensating speculative transaction or losses. She took a risk in entering into an contract for investing her money in mutual funds. [UTI Vs. Sabitri Devi Agarwal- II (2000) CPJ 4 (NC). She had admitted signed the mutual fund papers containing the conditions. She should be presumed to have knowledge of the pros and cons of dealing with the mutual funds. Under the circumstances the present complaint is without any legal basis and is meritless. Accordingly, the same is hereby dismissed. Parties are left to bear their own costs.”

11.            As per her own case she has suffered a loss of Rs. 32,000/- on investing Rs. 9 Lakhs through respondent/OP in SBI Mutual Fund. There is no mention in the complaint or in her evidence that investment was for earning her livelihood. As per case set up by complainant, she hired the service of respondent/OP for investment. Since hiring of service is for commercial purpose (investment in mutual fund) the appellant/complainant is not a ‘consumer’ within the meaning of Section 2(1)(d)(ii) of Act. Reliance is placed on the judgment of Economic Transport Organization Vs. Charan Spinning Mills Pvt. Ltd. & Anr. 2010 CTJ 361 (SC).

12.            In any event there is no positive evidence on record that appellant/OP ever requested the respondent/OP for credit of above referred mutual fund units in her demat account.

13.            There is no illegality in the impugned order. Appeal stands dismissed.

 

 

                A copy of the order be sent to the parties as well as to District Forum for necessary information. Thereafter, the file be consigned to record room.

(Justice Veena Birbal)

President

 

 

(Salma Noor)

        Member