IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 25th day of July 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt. S.Sandhya Rani,Bsc, LL.B ,Member
CC.No.28/15
Sayoorkahan : Complainant
S/o Uthuman Ravuthar
S.R.Manzil
Kakkodu,Valacodu Muri
Valacodu Village,Kakkodu P.O,Punalur
Kollam-691331.
[By Adv.Akshadharan.P.R.S]
V/s
- Managing Director : Opposite parties
Muthoot Securities Ltd.
Alpha Plaza, K.P.Vallan Road
Kadavanthra, Cochi-682020
- Branch Manager
Muthoot Securities Ltd.
Anchal Branch
Thomson Shopping Complex
College Junction,Anchal
Kollam-691306.
- Branch Manager
Muthoot Securities Ltd.
Kollam Branch,Muthoot Buildings
Vadayattucotta Road,Kollam-691001.
[By Adv.Anil Raj.K.T]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , President
1.This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
2.The complainant is a gulf employee. On 1st week of January 2010 one Sajikumar who is a close friend and neighbourhood and LIC agent and also
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working as an agent of the 2nd opposite party to approach the complainant by knowing that he is having the amount with him which was received from the LIC and advised the complainant to deposit Rs.2,00,000/- at the 2nd opposite party institution and in such event he would get Rs.10,000/- per month as interest and the 2nd opposite party will arrange to obtain PAN card to the complainant as free of cost. As instructed by the said Sajikumar, one lady by name Soumya who is the Branch Manager of the 2nd opposite party contacted the complainant over phone and also repeated the promise made by the said Saji Kumar regarding the benefit if the complainant in the event of depositing Rs.2,00,000/-. Later the said Saji Kumar took the complainant to the office of the 2nd opposite party and met the said Soumya who assured that he will get Rs.10,000/- as interest and the same will be deposited in the bank account of the complainant and thereby persuaded the complainant to make deposit of Rs.2,00,000/-. On 04.01.10 the said Saji Kumar went to the residence of the complainant and obtained the signature of the complainant on certain papers which was printed in English. He has also obtained the ID card and photographs of the complainant and his wife. They have also caused the complainant to withdraw Rs.2,00,000/- from the complainant and deposited the same in the SB a/c of the complainant in the Canera Bank and also caused to issue a cheque for Rs.2,00,000/-. On the same day evening the said Saji Kumar has also hand over a receipt having received the said amount from the complainant. On 15.01.2010 the opposite parties presented the cheque and withdrawn the amount from the SB a/c of the complainant. After 2 weeks the opposite party sent certain papers and book let by post to the complainant. After the elapse of 2 months there after the complainant has not obtained any income or interest as promised by the 2nd opposite party and the said SajiKumar.
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3.Thereafter the complainant contacted the said Saji Kumar and both Saji Kumar and the complainant approached the 2nd opposite parties office and it was understood that the amount has been deposited in the share market. On that day only the complainant understood that the amount of Rs.2,00,000/- obtained by the complainant by making him to believe that the same will be deposited in the name of the complainant in Fixed deposit and will fetch Rs.10,000/- per month as interest has been utilised by the opposite parties to deposit at the share market. The opposite parties were having intention to deposit the amount in the share market is not divulged to the complainant deliberately. The complainant was also not having any knowledge regarding the share business If the opposite parties stated to the complainant that the amount will be deposited in the share market, he would not have given his hard earned money to the opposite parties at the 2nd opposite party institution. During the 1st week of April the opposite parties sent a holding statement to the complainant wherein it is stated that the opposite parties have purchased 250 shares of Sathyam Computers. But he has not received any financial benefit from the above shares and therefore on 07.06.2010 the complainant along with the said Sajikumar rushed to the office of the 2nd opposite party. On enquiry it was revealed that the opposite parties have invested the amount at different shares such as Aban Off shore, Sathyam Computers, Maruthi Suzuki India Ltd. etc. The 2nd opposite party has also hand over to hold detailed statement to the complainant wherein it is stated that the 2nd opposite party has purchased 100 shares of Aban Offshore, 250 shares of Sathyam Computers and 2 shares of Maruthi Suzhuki India Ltd. But the complainant has not given any instruction to the opposite parties to purchase any of the shares and also not forced the opposite parties to sell the above shares at any time utilising the above amount withdrawn from the Fixed deposit of the complainant. The opposite parties have invested the amount in share market according to their
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whims and fancies and without getting any benefit to the complainant and thereby caused loss to the complainant. The opposite party who made the investment on behalf of the complainant in the share market had not shown necessary qualities of an intermediary and therefore the investment ended into loss. He has only received dividend warrants for less than Rs.100/- on several occasions and thereby the opposite parties have cheated the complainant.
4.At the beginning of the month of January 2014 the complainant rushed the 2nd opposite party’s office and requested to return the amount deposited by him. Thereupon the opposite party made him to believe that the amount obtained by the complainant has been deposited in the shares of Aban Off shore Company and the deposit will be closed within 1 week and the amount will be deposited in the bank account of the complainant. But even after 10 days no amount has been received in the bank account of the complainant, Hence the complainant again rushed the 2nd opposite parties office and thereupon the 2nd opposite party talked the complainant in a harsh language and also stated lame excuses. Later the complainant on 17.01.14 filed a complaint before the DYSP, Punalur who called the 2nd opposite party at his office and directed the complainant to return the amount of Rs.2,00,000/- deposited by the complainant along with profit within 3 month. But the 2nd opposite party has not deposited any amount in the bank account of the complainant. Again he approached the DYSP who told him to approach the court. Hence the complaint.
5.In response to the notice opposite party No.1 to 3 entered appearance and filed joint written version resisting the complaint. The main contentions in the joint version are as follows.
The complaint is not maintainable either in law or on facts. This forum has no jurisdiction to entertain the complaint as it is not a consumer dispute under the provisions of the Consumer Protection Act. In the KYC application form submitted by the complainant to the opposite parties it is mentioned that
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the complainant is a driver by profession. Hence the return from this investment was not exclusively the means of livelihood. However the opposite parties would admit that Mr.Saji Kumar mentioned in the complaint was a marketing executive of opposite party company off rolls. He is a person who is associated with opposite party company for bringing in new clients, with whom the opposite parties share brokerage revenue generated from such clients. No fixed salary is paid to him. However he has introduced the complainant to the company. But the opposite parties are unaware of the promises that Mr.Sajikumar has given to the customer and the opposite parties have not authorised him to assure anyone with such promises. Mrs. Soumya is still working with opposite parties as the Branch Manager of the 2nd opposite party’s branch. On receipt of the complaint the opposite parties enquired with her and she assured that no such promises of fixed monthly returns were given to the complainant as alleged by him, that she had also disclosed the risks associated with investing in the stock market to the customer. The opposite parties have not given any written documents assuring fixed returns. Instead the complainant has duly acknowledged the risk disclosure document which clearlynarrated the risk factors associated with the stock broking industry. The complainant has read understood and acknowledged the member client agreement and the risk disclosure document which forms apart of the KYC document. The trade summary of the complainant shows the shares in which the complainant has transacted. All transactions were taken place in the trading account of the complainant with his knowledge only.
6.As per the trade system of the opposite parties after every transaction, at the end of the trade day, opposite parties give trade confirmation to the complainant directly from our Corporate Office by means of Automated Trade Calls through Our Bound dialling system. In this case also, such trade confirmations are issued from our end on all the trade days. There are 109 such
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calls generated to the mobile number of the complainant at the end of every trade day and the complainant has attended 50 of such calls. Rest of the calls were neglected by him. Call log for the automated trade confirmation calls issued from our office to the complainant is available and will be produced before the forum. From the log it is clear that during February 2010 the complainant has listened to the call fully and he was aware of the account balance as well. Further, contract notes[statement containing all the trade details of a particular trade day] are also sent to the complainant at the end of every trade day, to the e-mail id of the complainant was registered with opposite parties(th January 2011. It can’t be justified that the complainant waited till 2014 to come up with a dispute on this matter. Opposite party Company has not tried to hide any transaction detail from the complainant. As a stock broker, every measure has been adopted to safeguard the interest of the valuable customers. But, if the complainant is not paying attention to the different types of trade confirmations and not informing the opposite parties the discrepancies and disputes, opposite parties are helpless.
7.The intention of sending three kinds of trade confirmations directly to the complainant, centrally from the Corporate office of the opposite party is to alert the complainant regarding the transactions taking place in his account. The complainant is expected to turn up immediately if he notices any kind of
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anomalies taking place in his account Referring to the transaction ledger, it is clear that the amount in the complainant’s account is not washed out in a day or two. Transactions have taken place during one and a half years, for around 90 trading days (from 14.01.2010 to 08.06.2011) and the complainant is in receipt of automated trade confirmation calls, electronic contract notes and SMS confirmations on these days. If the transactions were not known to the complainant, he should have approached opposite parties at least once during this period and should not have waited for four years. The complainant was in receipt of the Dividend Warrants from those companies mentioned in the complaint since he was holding the shares of those companies in his demat account held with the company. If the trades taken place in the customer’s account was not of fraudulent in nature.
8. It is true that the complainant had lodges a complaint with the DYSP office at Punalur. Our Branch Manager of Anchal was called upon and she had explained the facts before the police officials. The officials were convinced about our part and the complaint was dismissed by them. No assurance was given before the DYSP from our side as mentioned in the complaint.
9.All details regarding the nature and risk involved in the investment in stock market were well informed to the complaint at the time of account opening. The complainant had read, understood and signed the Member Client Agreement and the Risk Disclosure document that forms a part of the KYC form and a copy of such executed documents were given to the complainant along with the welcome kit. The complainant is deliberately and repeatedly attempting to recover his losses incurred in the share market. All the allegations raised against opposite parties are baseless and is a result of an afterthought, which cannot be justifiable at all. Our Company has taken every possible measure to protect the interests of our clients. Every possible alert and documents are given to our clients at right time, but in this case, the
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complainant didn’t turn up with any kind of dispute, on receipt of any of these. Later, when his account ended up in total loss, he came up with the complaint against the Company, demanding compensation from us. The Company cannot be held liable on account of complainant’s negligence and laxity. There is no deficiency of service or unfair practice on the part of the opposite parties.
10.In view of the above pleadings the point that arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- Whether the complainant is entitled to get back the amount of Rs.2,00,000/- with interest as claimed in the petition?
- Whether the complainant is entitled to get compensation and costs of the proceedings?
- Reliefs and costs.
11.Evidence on the side of the complainant consists of oral evidence of PW1 to PW3 and Ext.P1 to P14 series. No oral evidence has been adduced on the side of the opposite parties but got marked Ext.D1 document. Though sufficient opportunity was granted both sides have not filed any notes of arguments nor advanced any oral arguments.
Point No. 1 to 3
12.For avoiding repetition of discussion of materials these 3 points are considered together. Out of the 3 witnesses examined on the side of the complainant PW1 is Sayoor Khan who is none other than the complainant in this case. He has filed an affidavit in lieu of chief examination by fully re-iterating the averments in the complaint. He further proves Ext.P1 to P10 documents and also proves Ext.D1.
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13.The specific case of the complainant in his complaint as well as when he was in the witness box as PW1 is that LIC agent Saji Kumar initially approached him by fully knowing that he is having sufficient amount with him persuaded to make a fixed deposit in the 2nd opposite party branch office of Muthoot Securities Ltd. and in such event he would get Rs.10,000/- as interest and the said interest will be credited in his bank account. He has also introduced the Manager of the 2nd opposite party branch of Muthoot Securities Ltd. who also introduced a lady by name Soumya who is the manager of the branch. Subsequently it was revealed that the amount obtained by him at the instance of the said Saji Kumar and Soumya was not deposited in FD in the name of the complainant but the said amount was invested in share market by the 2nd opposite party. However neither the said Saji Kumar nor the said Soumya were made opposite parties in the present complaint. The said Saji Kumar is also not examined as witness on the side of the complainant. The Branch Manager Muthoot Securities Ltd. Anchal branch has been made as the 2nd opposite party but the complainant has failed to incorporate the name of the said Soumya as the Branch Manager. Generally an institution is represented by its Manager or Branch Manager. But in this case the specific case of the complainant is that Mrs.Soumya being the Branch Manager of 2nd opposite party has persuaded him to make fixed deposit in the 2nd opposite party branch office at Anchal and in such event he would get Rs.10,000/- as interest and by believing the above representation the complainant has entrusted the cheque to the 2nd opposite party through LIC agent Saji Kumar. The non making Smt.Soumya and LIC agent Saji Kumar as the opposite parties in this complaint is much fatal to the case. There is no reliable materials to prove that the complainant has entrusted cheque for Rs.2,00,000/- to the said Soumya at the instance of the said Saji Kumar for the purpose of making fixed deposit in
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the branch. The opposite parties have vehemently resisted the above case of the complainant. According to them the complainant has invested Rs.2,00,000/- in the share market and not made any fixed deposit as claimed by the complainant. In the circumstance the complainant ought to have made Saji Kumar and Soumya as opposite parties or at least examine them as witnesses to prove that they made any assurance to the complainant regarding interest and caused to believe that the amount will be deposited in the Fixed deposit as claimed by the complainant. The oral evidence of PW2&PW3 and the documentary evidence adduced by the complainant also would not probabilise the above case of the complainant.
14.It is to be pointed out in this connection that Ext.P1 receipt produced by the complainant would clearly indicate that the complainant has deposited the amount towards payment of NSE Margin and account opening. Ext.P1 is dated 04.01.2010 on which date the complainant is alleged to have given cheque for the amount. It is cristal clear that the cheque or amount received is on behalf of Muthoot Securities Ltd. towards payment of NSE Margin and account opening. The name of the institution and purpose for payment of Rs.2,00,000/- etc. stated in P1 receipt would clearly indicate that the complainant has not made any fixed deposit but hand over cheque for Rs.2,00,000/- on 04.01.2010 towards NSE Margin and account opening as a new client. Ext.P2 to P5 documents would also probabilise the case of the opposite parties that the amount has been invested not in the fixed deposit but in the share market. Ext.P2 is the DP details indicating the DP ID date of opening account which is 11/1/2010 name of the 1st account holder is Sayoorkhan. Ext.P3 is the instruction slip for delivery/receipt CDSL. Ext.P4 is the holding statement as on 31.03.2010. Ext.P5 is the holding details relating to the complainant. Ext.P4 and P5 would indicate that an amount of Rs.1,93,394/- has been invested in the name of the complainant by purchasing different
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shares such as Aban 100 shares, Sathyam 250 shares, Maruti 2 shares. Ext.P7 is the dividend warrant of Aban Off Shore Ltd. Ext.P8 is another dividend warrant of the same company. Ext.P10 is the postal ballot form of Aban Off Shore Ltd.
15. Ext.D1 dated 06.01.2010 is admittedly an agreement executed by the complainant in favour of the opposite parties wherein the complainant agrees to open demat beneficiary account and also authorising the 1st opposite party to transfer the shares purchased by the complainant into that demat account. All the above documents would clearly indicate that the amount obtained by the way of cheque from the complainant has not been deposited in any fixed deposit but invested in shares and that fact is within the knowledge of the complainant while executing Ext.D1 agreement itself. But the complainant has not seen raised his little finger against the alleged unauthorised act of the opposite parties for about 4 years which would clearly indicate that the opposite party have collected the amount from the complainant for not making any fixed deposit but to invest in the share market as contented by the opposite parties. It is to be pointed out that apart from the self serving evidence adduced by the complainant, there is no reliable materials to hold that any of the opposite parties have obtained any amount or cheque by making him to believe that it will be deposited in any fixed deposit and will be paid Rs.10,000/- per month as interest to the complainant through his bank account. The self serving oral and documentary evidence adduced by the complainant is not believable in the light of other documentary evidence such as Ext.P1 to P8 and Ext.P10 documents which will cut the very root of the complainants case.
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16. On evaluating the entire materials available on record we find no merit in the allegations in the complaint. As the complainant failed to establish any deficiency in service or unfair trade practices the complaint is only to be dismissed. The point answered accordingly.
Point No.4
In the result the complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 25th day of July 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
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INDEX
Witnesses Examined for the Complainant:-
PW1 : Sayoorkhan
PW2 : Lekshmi Narayanan
PW3 : Shahin Komath
Documents marked for the complainant
Ext.P1 : Receipt dated 04.01.2010 (Rs.2,00,000/-)
Ext.P2 : Details of account
Ext.P3 : Instruction slip for delivery/Receipt
Ext.P4 : Holding statement(31.03.2010)
Ext.P5 : Holding statement(07.06.2010)
Ext.P6 : Receipt of complaint
Ext.P7 : Counter foil of dividend warrant dated 24.09.2010
Ext.P8 : Counter foil of dividend warrant dated 28.09.2011
Ext.P9 : Counter foil of dividend warrant dated 19.09.2014
Ext.P10 : Postal Ballot Form
Ext.P11 : Authorisation letter(B.S.N.L)
Ext.P12 : Address details of Mobile Number 9446707893
Ext.P13 : Statement filed by Nodal Officer, Vodafone
Ext.P14 series : Prepaid Customer Information Form.(2 No.s)
Witness examined for the opposite party:-Nil
Documents marked for the opposite party
Ext.D1 : Agreement executed by the complainant dated
06.01.2010.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
