Jharkhand

Bokaro

CC/17/92

Smt. Saroj Deviedi - Complainant(s)

Versus

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

11 Jun 2019

ORDER

Complainant Smt. Saroj  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 her husband, invested Rs. 10,00,000/- (Ten Lac) in Mutual fund Scheme namely, Birla Sun Life dynamic Bound Fund regular plan to receive regular monthly dividend from O.P. No1 and O.P. No.2. O.P. No.3, the agent of O.P. assuring regular monthly dividend @ 8% p.a payable every month. The amount can be withdrawn, at convenience, after initial period of 90 days. Upon this assurance, the complainant had invested through check on 13-1-2017 and the amount was credited in the fund account of O.Ps. on 17-01-2017

                        The further case, is that after one month the complainant contacted O.P. 3 office and she was advices to wait for 90 days, the amount will be credited in her bank account. During 90 days period, the complainant did not receive any monthly dividend.

            On 19-04-2017 the complainant could know the principal amount has reduced to Rs. 9,81,000/- and O.P.3 suggested to withdraw it and invest elsewhere. The complainant withdrew entire amount on 02-05-2017 and 04-05-2017. This, according to the complainant, is a deficiency in service and hence this case is filed.

3          The following documents have been filed in support:-

            Anx-1- Copy of bank account showing deduction of amount.

            Anx- 2, 2/A, 2/B and 2/C- Copies of brochure of Mutual Fund.

            Anx-3- Copy of account statement of the fund.

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

4          After issue of notice O.P. No.1 and O.P. No.2 have appeared and on their behalf a joint written statement in filed.

            The first objection regarding maintainability is that the complainant is not a consumer U/S 2(1) (d) of the C.P. Act. The complainant is a investor therefore, this forum lacks subject matter of jurisdiction. The investment is made for commercial purpose and O.P. has acted according to the terms and condition. It is further submitted that trading in share is highly speculative investment and profit and losses in the trading is unpredictable, and it is subject to market risk and return is directly related to the performance of underline assets.

            It is further submitted that a prospective investor does not become a consumer. Hence, this complaint is liable to be dismissed as there is no deficiency in service.

            O.P. No.1 and O.P. No.2 relied on the law Morgan Stanley Mutual Fund Vs Kartick Das, 1994 SCC (4) 225 in which it has been held that in law, a prospective investor does not become consumer as defined under the Act. Even assuming that shares could be goods before allotment, the so- called consumer has neither purchased the goods for a consideration nor hired the services of the company for consideration.

5          O.P. No.3 Rakesh Ranjan, Bokaro Securities has appeared and filed W.S. with documents. It is submitted that this complaint is not maintainable as the complainant is not a consumer. The dispute is related to investment for gain and not for livelihood by way of self employment and it is purely for commercial purpose. It is further stated that trading in share is highly speculative and profits and losses are unpredictable and mutual fund investment is subject to market risk and return is directly related to the performance of the assets. Therefore, this case is liable to be dismissed.

            Anx- A to G has been filed on behalf of O.P No.3.

           

FINDINGS

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 go 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. 18,822/-(Eighteen Thousand Eight Hundred Twenty Two) 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.