Delhi

StateCommission

A/360/2016

ARUNA AGARWAL - Complainant(s)

Versus

M/S INDIA INFOLINE LIMITED - Opp.Party(s)

06 Feb 2018

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Dates of Arguments: 06.02.18 

                                                                    Date of Decision:      13.02.18 

First Appeal No.360/2016

In the matter of:

          M/s India Infoline Ltd.

            A-154 D, Sector-63

            Bodia-201013 (UP)                                                                             Appellant

 

                                                                        Versus

1. Aruna Agarwal
2. Dr. Anand Agarwal
3. Ankur Agarwal

 

All residents of 1104, Coral Heights

Ramprastha Greens, Sector-7

Vaishali Extension

Ghaziabad U P – 201010.                                                          Repondents

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

SHRI O.P. GUPTA(MEMBER JUDICIAL)

                                                                                JUDGEMENT

            The present appeal is filed against order dated 15.1.16 passed by District Consumer Dispute Redressal Forum, Noida, UP vide which complaint of the respondent was allowed.  The appeal has been transferred to this Commission by National Commission vide order dated 27.05.16 passed in transfer application  No. 1 of 2016.

2.        Facts that may be gathered from the impugned order are that believing representation by one Tarikh Malik, employee of the appellant, the complainant opened account with the OP and gave four cheques of Rs. 2000/- each.  OP sent a letter intimating that three accounts had been opened one in the name of complainant  No. 1 & 2, other in the name of 1 and 4 and third in the name of complainant No. 3. Complainants invested Rs.6,42,000/-  in various shares and securities regarding which a message was received on the mobile number of complainant No. 1.  OP informed that share of Delta, RIL, HDFC, Astha and Reliance Media Company amounting to Rs.6,00,000/- was available in the account of complainant.  In June 2011 when complainant No. 1 went to office of OP, he was informed that Mohd Tarikh Malik had committed a fraud with the OP and had been sent to jail.  Next day when complainant No. 1 and 4 went to office of the OP,  one employee of the OP informed that their investment had been sold by online trading and nothing was left. Complainant No. 1 contacted Mohd. Tarikh Malik in jail who informed that investment made by complainant was secure.  Complainant issued notice informing that they have suffered a loss of Rs. 6,00,000/-.  Copy of the same was sent to SEBI also. OP sent reply alongwith annexure.  According to complainant the documents annexed with the reply were having forged signature of complainant on the basis of which the OP sold investment made  in the share.

3.        OP moved an application u/s 26 Consumer Protection Act pleading that consumer fora does not have jurisdiction because complainants do not come under the definition of consumer.  Messages about transaction in their account were respectively sent to complainant.  In case any transaction was done  without their consent it should have been objected then and there. The complainant could have taken information through internet.

5.        District Forum found that remedy under Consumer Protection Act is in addition to remedy, since OP was to get profit out of share of complainant, complainants are consumers. OP did not deny that complainant had D-mat account with it.  OP did not file WS and affidavit, hence version of the complainant that OP committed fraud, forgery and cheating by selling shares and misappropriated funds has to be accepted.  So the complaint was allowed and OP was directed pay Rs. 6,44,000/- with interest @ 12% per annum from the date of filing complaint till realization. Rs. 25,000/- were granted for mental agony and Rs. 10,000/- towards litigation charges.

6.        We have gone through the material on record and heard the arguments.  The principal argument of the appellant is that respondents were not consumers and consumer court has no jurisdiction.  In support of their argument they relied upon decision of National Commission in Shashikant S.Timmapur vs. Karvy  Stock Broking Ltd. decided on 24.07.13 reported as 2013 SCC online NCDRC 649.  In the said case complaint was dismissed by District Forum, order of District Forum was upheld by State Commission, Karnataka and in revision the National Commission maintained order of the State Commission.  Exactly same question arose in the cited case.  In one of those cases arising out of complaint No. 348/07 complainant pleaded that he was availing services of OP for the purpose of earning livelihood by means of self employment by way of trade in share and security.

7.        National Commission noticed decision of West Bengal State Commission  in Ramender Nath Vasu vs, Sanjeev Kapoor I (2009) 316, decision of State Commission, Delhi in Anand Prakash vs. A.M.Johri III(2000) CPJ 291.  It also noticed its own decision in following cases:

1.        RP No. 1179 of 2012 A.Asai thambi vs. Company Secretary Satyam Consumer Services Ltd.

2.        RP No. 287 of 2001 Dr. V.K.Aggrawal vs. Infosys Technology Ltd. decided on 24.07.12.

3.        RP No. 3345/12 Sterlited Industries (India) Ltd. vs. Ganpati Finsee Pvt. Ltd. decided on 12.07.13.

4.        FA 362/11 Ganpati Parmeshwaran vs. Bank of India.

8.        Ultimately it was held that at present availing services of OP for sale and purchase of share in heavy volume for earning huge profit does not fall within the purview of consumer.

9.        In the instant case complainant purchased shares of 4-5 different companies.

10.      Per contra the counsel for respondent relied upon decision of National Commission in  FA No. 543/11 titled as M/s Indiabulls Financial Services Ltd. vs. Mr. Varghese Skaria decided on 02.04.12. In the said case the OP did not file any version and there was no defence. Documents placed before National Commission were not before the State Commission and were not accepted by the National Commission.  Moreover, respondent No. 1 was a retired employee of a Public Limited Company and respondent no. 2 was his wife  and they have invested their hard earned money with appellant for purchasing and trading of shares.  In this context it was held that it can reasonably be said that purpose of investing money of shares was not for commercial gain but to earn their livelihood after their retirement.  This is why respondents were held to be covered in the meaning of consumer.

11.      The decision cited by counsel for respondent is distinguishable and is not applicable to the facts of the case in hand.

12.      We specifically asked the counsel for respondent whether they alleged in the complaint that they were investing money to earn livelihood.  He had to reply in the negative.

13.      Moreover as per decision in Reliance Industries vs. United India 1998 CPJ 13, Sirish Kritkar vs. State Bank of Patiala IV (2015) CPJ 154 NC & RP No. 4535/13 titled as Rakesh Kumar vs. ICICI Prudential decided by National Commission on 04.03.14  question of forged signatures can not be gone into by Consumer Foras.

14.      As result of the above the appeal succeeds. The same is accepted, impugned order is set aside and complaint is dismissed.

            Copy of the order be sent to both the parties free of cost.

            One copy of the order be sent to District Forum for information.

 

 

 

       (O.P.GUPTA)                                                         (ANIL SRIVASTAVA)                                                   

      MEMBER(JUDICIAL)                                                      MEMBER