Date of judgment : 08.09.2015

JUDGMENT

The instant appeal is directed against judgment dated 28.01.2014 passed by Ld. Distict Consumer Disputes Redressal Forum, South 24-Parganas at Alipore in consumer complaint case No.417 of 2013 allowing the same on contest against Opposite party  with cost of Rs.5000/- directing the opposite party to send contact notes and other communication/confirmation notes in respect of share trading regularly to the complainant separately in accordance with the agreement in question mentioning that if the opposite party fails to comply with the order the complainant is at liberty to put the decree into execution.

Being aggrieved by the impugned order the opposite party has preferred the instant appeal on agrounds, intr alia, that the complainant is not a consumer under the opposite party (appellant herein) as because the activities involved in share trading are commercial transactions in nature and thus involve in commercial purpose. 

The case of the complainant in brief is that being approached by the Marketing Manager of the opposite party, he agreed for share trading and thus invested his superannuation benefits with the same for earning his livelihood by means of self-employment.  The complainant further stated that an account was opened on 27.7.2008 with ZO IIFL, Kolkata which was subsequently transferred to the branches but the Garia Branch failed to render service timely at 9 A.M. causing financial loss.  The complainant stated that the matter was brought to the notice of the National Stock Exchange resulting which the IIFL H.O. begged apology for the inconvenience owing to not rendering service timely.  The complainant has further stated that there are also various deficiencies in service on the part of the Opposite party such as contact note has not been sent as per rule, ‘daily finance sauda confirmation’ had not been given for filing, interest was not paid as per promise for which the complainant has prayed before Ld. District Forum to direct the opposite party to pay compensation to the tune of Rs.50,000/- and an additional Rs.50,000/- towards compensation for causing mental agony and continuous sufferings.

The opposite party contested the case denying and disputing all material allegations stating, inter alia, that the complainant is a regular trader in capital market and indulges in stipulations on buying and selling on the same day and, therefore, has been  well aware about risks involved in trading in the securities market and moreover, has acknowledged risk disclosure document in that respect.  Therefore, the liabilities for not earning the amount as speculated  cannot be upon the shoulder of the opposite party.

In course of hearing of the appeal Ld. Advocate for the appellant has submitted that the respondent is not a consumer under the appellant.  Since the matter of dispute is involved with commercial activities.  Ld. Advocate for the appellant has further submitted that there is no deficiency on the part of the O.P. since the promised services have been rendered to the complainant regularly and regarding not earning the desired amount by the respondent, the appellant has nothing to do as because profiting in share trade is subject to certain market risks.

The respondent is found absent on repeated calls.

Having heard submissions made by the Ld. Advocate for the appellant and on perusal of documents on record, it is evident that the complinant is a share trader.  Now, the point to be determined is that whether the complainant is a consumer under the opposite party.  In his petition of complaint, the complainant has averred that he invested his superannuation benefits by taking overdraft on his fixed deposit  in the share trade for earning his livelihood by means of self-employment.  Section 2(1)(d) of Consumer Protection Act, 1986 runs as folows :

‘consumer’ means any person who, - (i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or

(ii) hires or avails 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 other than the person who hires or avails of the 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/her exclusively for the purposes of earning his livelihood by means of self-employment.’

          It is evident from this  definition that commercial purpose excludes the services availed by the hirer exclusively for the purpose of earning livelihood by means of self-employment.  In the instant case, the complainant averred that he runs the share trading for earning his livelihood by means of self-employment but did not disclose the fact that whether he has other source of income or not wherefrom it would have been  evident that the share trading business run by him is the only source of income of him for earning his livelihood.  In course of hearing of the appeal Ld. Advocate for the appellant has cited the decision of Hon’ble National Commission in revision petition No.3060 of 2011 wherein the Hon’ble Commission held that since respondents trade regularly in the share trading business which is commercial activity, under this circumstances the respondents will  not fall under the definition of consumer  as per the Act.  Moreover, regular trading in the sale and purchase of share is purely commercial activity and the motive is to earn profit.  Therefore, the activity being purely commercial one, is not covered under the provisions of this Act.  This view is clearly applicable to the instant case and hence, we are of the opinion that the respondent is not a consumer under the appellant.

          In the result, the appeal succeeds.

          Hence,

ORDERED

that the appeal is allowed but without any order as to costs.  The impugned order is set aside.

          Consequently, the petition of complaint is dismissed.