Jharkhand

Bokaro

CC/17/91

Prabha Shankar Divedi - Complainant(s)

Versus

M/S Biral Sun Life Asset Management Co. Ltd. - Opp.Party(s)

11 Jun 2019

ORDER

Complainant Prabha Shankar Dviwedi has filed this complainant for a claim of Rs. 41,835.55/- and compensation of Rs. 55,000/- with litigation cost of Rs 5,000/- and interest on the claim from 05-05-2017 till the payment.

2          The case in short, is that the Complainant, in the joint name with his wife, invested Rs. 10,00,000/- in Mutual fund of the O.P., managing financial assets provided by customers more efficiently and conveniently as expert financial inter mediatise.

            As per the assurance by O.P. No.3, the complainant invested to get 8% p.a. monthly dividend every month and the amount can be withdrawn at convenience at any time after initial periods of 90 days.

            Payment was done by cheque dt. 13-01-2017. After one month the complainant contacted O.P. No.3 for monthly Dividend, complainant was conveyed that dividend shall be credited in his bank account next month. O.P. No.3 also advised to wait for 90 days.

            On 19-04-2017 Complainant got the Knowledge, that investment money has been reduced by Rs. 19,000/-. O.P. No.3 informed the complainant to withdraw the amount and re-invest elsewhere. Then the complainant withdraw the remaining amount of the investment and thereby the loss was caused to Rs. 14,835/-.

            The cause of action arose on 16-01-2017, 19-04-2017, 02-05-2017 and 04-05-2017. A legal notice was sent to O.P. on 02-05-2017 but there is no reply.

3          The following documents have been filed in support:-

            Anx-1- Copy of bank account.

            Anx- 2 and 2/C- Copies of pamphlet of Birla Sun Life.

            Anx-3- Copy of account statement.

            Anx-4 to 4/C Copies of Legal Notice to O.P.

4          O.P. No.1 and O.P. No.2 M/s Birla Sun Life appeared and filed joint W.S.

            It is submitted that complainant is not a consumer and invested money for gain. The Complainant is engaged in commercial activities. The feature trading activities is unjust enrichment and as such he is not protected under C.P. Act.

            It is also submitted that Birla Life Dynamic Bond Fund is a growth Regular Plan and there is no monthly dividend which is clear from the scheme.

            It is also submitted that investment in mutual fund are not being exclusively for the purpose of livelihood. Thus, the dispute is commercial one and excluded from C.P. Act. The return is related to the performance of assets in which risk is associated like share, debentures etc. Therefore, a prospective investor does not become a consumer. The complainant had neither purchased the goods for a consideration not hired the services of the company and this case is liable to be dismissed.

5          O.P. No.3 Rakesh Ranjan appeared and filed W.S. it is submitted that case is not maintainable as complainant is not a consumer. The disputes between the parties are relating to commercial purpose hence it is excluded from C.P. Act. The complainant has not invested the money for livelihood and it is speculative investment and profit and loss in trading is unpredictable. Thus it is risk and return is directly related to the performance of the assets like share and debenture etc.

F I N D I N G S

6          We perused the records. It is objected that Complainant is not a consumer since no consideration is paid and it is commercial investment and not for livelihood.

            Sec.2(1)(d)(i)(iv) says that consumer means a person buys goods for consideration or avails any services, which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.

            It the Instant case, the complainant avails services under deferred payment. Let suppose, the invested money growth exceeds the promised return, the complainant had to receive only promised growth and excess would to to the benefit of the O.P. Therefore, this is deemed to be consideration for this purpose.

            As regards, livelihood is concerned, no document is filed by O.P. to show that money was invested for commercial purpose. Therefore, the purpose falls under explanation clause.

            Therefore, we agreed to hold that the complainant is a consumer and the dispute is consumer dispute.

7          Regarding the dispute, the complainant invested hard earned money only for the purpose of growth for livelihood, nothing has been brought on record to show, the investment was for the commercial purpose.

            The mutual funds are secured investment through expert like this O.P. It is not a investment directly into the share market by the complainant. The complainant used to avail expert services of the O.P. for fixed growth. Therefore O.P. is liable to pay the basic investment money to the complaint as O.P. has failed to utilise his best Skill to save the interest of the consumer and this is deficiency in service.

            The claim is partly allowed.

8          Thus, we direct the O.P. M/s Birla Sun Life Asset Management co. Ltd. to pay Rs. 18,981/-(Eighteen Thousand Nine Hundred Eighty One) only to the complainant with interest of 6% (Six Percent) P.A. till realisation.

            We further direct O.P. to pay Rs. 3,000/- (Three Thousand) as litigation cost of the complainant.

            All the payment must be paid within 60 (Sixty) days of the order failing which the rate of interest on main claim shell be enhanced to 10% (Ten Percent) p.a. till realisation.