D.O.F:18/03/2014
D.O.O:30/09/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.55/2014
Dated this, the 30th day of September 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
1. S. Ramachandran aged 68 years
S/o. Sankaran Vaidyanar (Dead)
Vaidyar’s Avenue, : Complainants
Opposite Gasali Masjid,
Thalangara Post
Kasaragod.
2. Snehasheela.P.K Aged 59 years
D/o Narayanan, W/o Late. S Ramachandran
R/at Vaidyar’s Avenue, Gassali Masjid,
Gassali Nagar, Thlangara Village and post
Kasaragod Taluk and District – 671122
(Adv: Shasidhara.A. Comp: 1 & 2)
And
1. M. Sudhakara Mallya, Aged 28 years,
S/o Gurudatha Mallya,
Grocery Merchant
Opposite Jaleel Chicken
Market Road, Kasaragod
2. Vasanta Aged 50 years,
Poojari, R/at Marigudi Temple
Karakkode, Kasaragod.
3. The Manager/ Authorized Person : Opposite Parties
Motilal Oswal Securities Limited,
Head Office, Palm Spring Centre, 2nd Floor,
Palm CourtComplex, New Link Road Malad (West)
Mumbai, Maharashtra, Pin – 400064.
4. The Manager/ Authorized Person,
MotilalOswal Securities Limited
Branch Office, Ashwathi Building,
Kandakulam Cross Road,
Near Jay Auditorioum, Kozhikode, Kerala, Pin 673002
(Adv: Shivashankar Bhat OP’s)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The complaint filed under section 12 of Consumer Protection Act1986. The case in short is that complainant maintains an account with Opposite Party No:1, and Rs. 1,49,000/- stands to his credit in the account. He invested further amounts but on demand followed by notice the Opposite Party did not pay the amount due. The acts of Opposite Parties amounts to unfair trade practice and the complainant sought reliefs directing Opposite Parties to pay amounts there in with costs.
2. Opposite Party No:1 and 2 filed their version denying allegations. It is stated that Opposite Party No: 1 is conducting trade online for and on behalf of Motilal Oswal Securities Ltd, Head Office, Palm Spring Centre, 2nd Floor, Palm Court Mumbai 400061 and having branch office Aswathi building Kandamkulam, Kozhikode. Opposite Party denies keeping accounts of complainant but accounts of customers including complainant are with the said Motilal Oswal Securities with separate account numbers and all the accounts stated in the complaint were remitted with them by complainant, and that Motilal Oswal Securities is a proper and necessary party and prayed to dismiss the complaint.
3. Both parties filed chief affidavit in lieu of chief examination and produced documents. Based on the pleadings and evidence on record Commission has taken up the issue of non –joinder of necessary parties as a preliminary issue. In the meanwhile complainant died. His wife impleded as his legal heir .
4. Non joinder issue is considered by Commission, opportunity is given to the complainant to implead supplemental Opposite Party No: 3, 4 in the case as per IA 40/2021and IA 39/2021 to amend the complaint. Both petitions are allowed. Notice served to Opposite Party No:3 and 4 absent set exparte. Complainant and Opposite Parties represented no further evidence and hence taken up for final orders.
5. The points for consideration in the case are;
a) Whether complainant is entitled to receive Rs. 8,50,000/- as agreed amount with interest?
b) Whether there is any deficiency in service from Opposite Parties
c) Whether complainant is entitled for any compensation? For what reliefs?
6. The complainant filed chief affidavit marked documents as Ext A1 to A5. Ext A1 is the account slip. Ext A2 is the copy of the notice of demand issued to Opposite Party No: 1 and 2. Ext 3 and 4 are postal AD. Ext A5 is statement of account, Ext A5 is extract of bank account of complainant from 01/01/2012 to 31/12/2012. Opposite Party No: 1 filed chief affidavit and marked Ext B1 and B2. Ext B1 is statement of account with Opposite Party No: 3 and 4 from 31.03.2012 and 29/01/2015 respectively marked Ext B1 and B2.
7. All issues are taken up for consideration together for convenience
The Ext A2 notice shows that complainant invested Rs. 1,50,000/- on 04/01/2012 by way of cheque. Another sum of Rs. 1,49,000/- lying to the credit of complainant thus in total sum of Rs. 2,99,000/- is due. Notice shows that Rs. 50,000/- is paid as service charges to Opposite Party No: 2 promised re-payment of Rs. 8,45,000/- duly received by Opposite Party No: 1 and 2. But no reply is sent to the notice. In the written version no explanation for not sending any reply to Ext A2 notice. Version says that Opposite Party are not keeping any amounts of customers and all the amounts stated by complainant were remitted to his account with Opposite Party No: 3, 4. The Opposite Party No:1 and 2 have no case that Ext A1 is not true valid or genuine one in the version. During cross examination suggestion is made Ext A1 is falsely prepared. Complainant admits Ext A1 is in his hand writing but signed by Opposite Party No:2. Total invested amount of Rs. 3,49,000/-.
8. Opposite Party cross examined. No case for complainant that amount is paid or collected by Opposite Party No: 1, but definite case is that amount is paid to Opposite Party No:2. Opposite Party No: 2 admits received the amount but his case is that entire amount is paid over to Opposite Party No: 3 and 4 but not maintaining any account. Dw2 admits there is no connection between complainant and Opposite Party No: 3 and 4. Dw2 further admitted that. Ext A1 contains his signature. He also admits he signed Ext A4. Even in re- examination, he admits that Ext A1 contains his signature. But explains that he signed in black paper and he does not know who is its scribe and he signed it as an acknowledgment for handing over to Opposite Party No: 3 and 4 entrusted by complainant. But at the same time in his chief affidavit. Dw2 deposed that “ Ext A1 is not a genuine document signed by me” thus denied the signature found in A1. Ext B1 and B2 are not proved as per mandate of law by examining the person who issued the same. As per complainant a sum of Rs. 1,00,000/- was paid by way of cheque encashed on 05/01/2012 not denied in version or deposition. Ext A5 entries shows encashment of Rs. 1,00,000/- by Opposite Party No:3. In the version it is stated that Opposite Party No:1 and 2 are franchises of Opposite Party No: 3and 4. The contention that they are not maintaining any records of any payment made by customers and no account is maintained by them and that entire payment made by complainant is remitted with Opposite Party No: 3 and 4 is not acceptable. Opposite Party No:3 and 4 did not file any written version. They are also legally liable to compensate the complainant. Since part payment are credited to their account also. They remind silent without filing any version.
9. The complainant is seeking relief for refund of Rs. 8,50,000/- with interest and compensation. According to version of Opposite Party accounts of customers including complainant are with the said Motilal Oswal Securities with separate account numbers and all the amounts stated in the complaint were remitted with them by complainant, that therefore Motilal Oswal Securities is a proper and necessary party to the complaint and impleaded, accordingly Opposite Party No:1 and 2 did not take steps to summon documents of credit of amounts made by Opposite Party No:1 and 2 received from complainant.
10. Considering the whole aspects of the case documentary as well as oral evidence, in consisted and contradictory stands taken by Opposite Party No:1 and 2 and silence on the part of Opposite Party No:3 and 4 though notice received, clear admission of Opposite Party No:1 having signed Ext A1 document, and not sending any reply to Ext A1 registered notice on its receipt and no satisfactory explanation and in not taking any legal action for alleged fabrication of Ext A1 document and having filed joined version by Opposite Party No: 1 and 2 being authorized persons of Opposite Party No: 3 and 4, failed in their duty and responsibility having collected the amount promising to pay with profits, complainant having fought the case from 2012 till he breathed his last on 05/06/2020 and continued by his wife, the Commission finds that Opposite Party No:1 to 4 are jointly and severally liable to pay the amount invested by complainant namely Rs.3,49,000/- with interest at 8% per annum from 31/03/2012 till repayment to the complainant.
11. Since Opposite Party has collected the amount with a promise to re-pay with profits having failed to honour commitment deliberately despite filing consumer complaint continued for years together taking one or other contentions inconsistent and contradictory stands, there is serious negligence and deficiency in service and clearly amount to unfair trade practice and thus Opposite Parties are liable to pay compensation thereof estimated at Rs. 25000/- besides a sum of Rs10,000/- towards cost of litigation.
In the result complaint is allowed in part. Opposite Party No:1 to 4 are jointly and severally directed to pay Rs. 3,49,000/- with interest at 8% per annum from 31/03/2012 till repayment to the complainant and also Rs. 25,000/- ( Rupees Twenty five thousand only)as compensation for deficiency in service and Rs 10,000/- (Rupees Ten thousand only) towards litigation costs to the complainant within 30 days of receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Account slip
A2- Copy of the notice
A3- & A4- Postal Acknowledgment card
A5- Statement of account
B1- Statement of account
B2- Statement of account
Witness Examined
Pw1- S. Ramachandran
Dw1- Sudhakara Mallya
Dw2- Vasantha
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
