Delhi

New Delhi

CC/459/2007

K.C. Agarwal - Complainant(s)

Versus

M/S. Motilal Oswal Securities Ltd. - Opp.Party(s)

19 Mar 2015

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110002.

 

 

Case No.C.C./459/07                                                                                                                                                                              Dated:

In the matter of:

1. Mr. K C Aggarwal

R/O D-136, Sec-36,

Noida-201303 U.P.

                      ……..COMPLAINANT

 

VERSUS

 

1. Motilal Oswal Securities Ltd.

C-103, 10^th Floor,

Himalaya House,

23, KG Marg,N.DELHI-11001

Through Mr. Raam Deo Aggarwal

Managing Director & Ors.

 

.... OPPOSITE PARTIES

 

ORDER

Member  :  RITU GARODIA

        The complaint pertains to deficiency in service regarding return on investments in shares.  

Brief facts of the complaint are that complainant invested Rs.20,43,085.37/- with OP which is a Portfolio Management Company in Feb.,2004 out of which Rs.5, 43,085.37 was retained by Bombay Office and Rs.15,00,000/- was sent to Delhi Office for trading. The complainant further avers that he is an authorized has opened an entity by the name of knowledge Book from which he has only incurred losses.  Complainant has also annexed to him by OP was Rs.6,81,529 and Rs.7,93,000/-  He also alleged loss of Rs.19,61,018.24 on expected return.  

OP in its reply averted that complainant is no a consumer.  OP has further annexed that complainant wanted a part transfer of funds to Delhi as they were residing in Delhi.  OP also avers that complainant shifted the investment from “Bulls Eye PMS” to “Value PMS” which is long term investment.  OP also a state that is based from giving assurance of returns and same is duly mentioned in PMS Agri….

after two years the value of account should have been Rs.26,33,966.05/- but was refunded only Rs.23,32,977/-  The complainant after investment alleged unprofessional handling of her account.  She further averred that OP fabricated the statement of accounts to cheat investors like her and due to this she suffer a loss of Rs4,86,224.45/-.

        OP in their written version has stated that a complainant is not a consumer.  OP further contended that the complainant entered into an agreement for “Bull Eye PMS” for short term in Jan.,2004 and later on shifted to “Value PMS” which is a relatively long term investment.  OP further stated that investors have recorded profit between 27% to 45% and complainant has also made reasonable profit on her investment.

        The first question that arise for consideration is whether the complainant came within the category of consumer under section 2(1)(d) of Consumer Protection Act, 1986  The complainant has averred in the complaint that she is a visiting lecturer in a business school and she is availing services of OP as Port folio Manager.  Section 2(1)(d) of the Consumer Protection Act is reproduced as under:

2(1)(d) “consumer” means any person who,

1. Buy any good

ii) [hires or avails of] of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose)

[Explanation-for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment].

        From perusal of the aforesaid provision, it is evident that a person who avails such services for any commercial purposes, has been excluded from a definition as per amendment of 2002 w.e.f. 15.3.03.  However, it is clarified in the explanation that after a person purchases a goods or avail the services exclusively for the purpose of earnings  his livelihood then such goods or services would not amount to have been purchased or availed for commercial purposes.   In the matter under consideration, the complainant has admitted to be a lecturer and further admitted that a amount was invested with the Portfolio Manager.  It is not the cases of complainant that the services of OP’s were availed for earning livelihood.  Obviously the complainant was only investing money. Otherwise also, it is a  matter of common knowledge that share trading is a commercial activities and services availed for that purpose would obviously be considered to have been availed.

        National Commission in M/s. Steel City Securities Ltd. Vs. G P Ramesh has held : “respondents are trading regularly in a share business which is a  commercial activity, under these situation, respondents would not come under definition of consumer as per the Act. Moreover, regular trading in the sale and purchases of the shares is a commercial activity and the only motive is to earn profit therefore, this activity being purely commercial one, is not covered under the provisions of the Act”.

        Accordingly we held that the complainant is not a consumer as per the provision of the Act and the complaint is hereby dismissed.

        Pronounced in open Court on 19.03.2015.

The file is to be sent to record Room.

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

 

(C.K.CHATURVEDI)

President

 

 

 

(S.R.CHAUDHARY)          (RITU  GARODIA)

Member                                   Member