Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This appeal has been filed by the appellant taking strong exception to the order passed by Addl. District Consumer Forum, Thane in consumer complaint No.174/2008 decided on 09/01/2009. By the said impugned judgement and award, District Consumer Forum directed the appellant to pay a sum of `60,000/- plus `5,000/- towards mental agony and `2,000/- towards cost and directed that payment should be made within 45 days else it will carry interest @12%p.a. As such, org. opponent has filed this appeal.
We are finding that the respondent had opened a Demat account in the M/s.India Infoline Ltd. in March 2008 for dealing in shares through opponent. In the course of dealings, she noticed that brokerage charged to her was `1/- in place of 5 paise. She was aggrieved by this fact and one day she sent email to opponent/appellant herein. In the email, she specifically asked the appellant to immediately stop the transaction till it reverted the excess brokerage in her account. It was case of the complainant that even after sending this email of stop transactions, opponent continued to deal in shares on her behalf and thereby she sustained loss. She, therefore, filed consumer complaint alleging deficiency in service on the part of opponent.
Opponent was duly served with the notice, but opponent preferred not to contest the matter and matter proceeded ex-parte and upon hearing the complainant and her Advocate and on perusal of the documents placed on record, District Consumer Forum passed ex-parte award as mentioned in the opening para. As such, org. opponent has filed this appeal. In filing appeal there was 19 days delay which we have condoned subject to cost.
We heard both the parties and we are finding that the matter is required to be decided on merits in the District Consumer Forum, Thane. In the District Consumer Forum, opponent had not contested the matter. It is vehemently contended by Counsel for the appellant that after receiving email they had refunded excess brokerage charged by them to the complainant. Therefore, it appears that appellant has good case to contest. As such, we are inclined to give second inning to the appellant to contest the matter by remitting this complaint back to the District Consumer Forum subject to certain costs. Hence, we pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 09/01/2009 is quashed and set aside.
2. Complaint No.174/2008 is remitted back to the Addl. District Consumer Forum, Thane offering reasonable opportunity to the opponent to file written version and documents and affidavit, if any to contest the matter and then to decide the complaint afresh on merits.
3. Appellant is directed to pay `5,000/- as cost of this proceeding as condition precedent to the respondent/org. complainant.
4. Amount of `25,000/- was already deposited with this Commission, Registrar is directed to refund `20,000/- to the appellant and `5,000/- to the respondent/org. complainant, since we have awarded cost of `5,000/- to the respondent/org. complainant.
5. Both parties are directed to appear in the District Consumer Forum on 15/02/2011.
6. Copies of the order be furnished to the parties.
