BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 3rd March 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.189/2013
(Admitted on 12.07.2013)
Alwyn Camil Pais,
Aged 43 years, Christain,
S/o late Michael Alex Pais,
Residing at May Flowers,
Kongour, Kulshekar Post,
Mangalore 575001.
….. COMPLAINANT
(Advocate for the Complainant: Sri DALA)
VERSUS
Reliance Mutual Fund,
C/o Reliance Capital Asset Management Fund Ltd,
One India Bulls Centre Tower one, 11th and 12th Floor,
Jupiter Mills compound,
Elphinstoe Road, Mumbai 400013,
Represented by its Branch Head,
Having its Branch Office at Maximus,
Light House Hill Road,
Mangalore 575001.
Hoige Bazar, Mangalore D.K.575001.
…............OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. MPN)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay a sum of Rs.84,702.55 illegally adjusted by the Opposite Party towards, the alleged to be made as excess payment by the opposite party and the sum of Rs.1,00,000/ as compensation. And to pay future interest at 8% per annum on the amounts awarded from the date of complaint till the payment and such other reliefs.
2. In support of the above complaint the complainant Mr. Alwyn Camil Pais, filed affidavit evidence as CW1 reiterating what has been said in the complaint and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C2 as detailed in the annexure here below. On behalf of the opposite party Mr. Sreesha K.L.(RW1) Manager, also filed affidavit evidence reiterating what has been said in the version and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R10 as detailed in the annexure here below. Filed note of arguments.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties we understood the dispute is related to investment in the year 2010 in 3 SIPS of growth plans. But the opposite party while paying the redemption value of the SIPS invested in 2010 deducted an amount claiming the amount as excess paid by inadvertence while redeeming the Reliance diversified power Sector fund invested in 2005 under Folio No 4779176063. The complainant states that, he has made an investment in Reliance Diversified Power Sector Fund in 2005 with the opposite party worth Rs.75,000/ on 18.08.2005 and redeemed the said investment on 08.06.2006. On redemption the opposite party paid Rs.1,65,368.01 after deduction of Tax and the STT and credited to the bank account of the complainant. Again the complainant invested with the opposite party in 3 SIPS of Rs.2,000/- payable per month from April 2010 under Folio No 453111191716. On 27.09.2012 the complainant redeemed these 3 SIPS and the redemption amount was Rs.1,25,159.45. But the opposite party paid only Rs.40,457.3 by deducting Rs.84,702.15 towards the excess amount paid in respect of the fund amount redeemed earlier in the year 2006. The complainant alleges the deficiency in service as the opposite party should not have deducted the excess amount paid in 2006 in another investment while paying the amount related to present investment without authority. The opposite party contested the complaint and stated that, The complainant had invested in the Reliance Diversified Power Sector Fund in 2005 with the opposite party an amount of Rs.75,000/. By inadvertence while investing in the units it was invested twice to the extent 3912.098 units and another 3817.843 units in the name of the complainant and credited to complainant folio No 4779176063. On redemption instruction all the units in the Folio including wrongly purchased are redeemed and the amount by mistake credited to the complainant account. Hence the opposite party had the right as per contract terms to recover the excess paid amount from the future amount payable to the complainant and hence there is no deficiency in service on the part of the opposite party. The opposite party also contended that the complainant being an investor the complaint filed under the section 12 of the Consumer Protection Act 1986 is neither maintainable in law or on the facts of the case. These are being the facts of dispute in resolving it we consider the following
POINTS FOR ADJUDICATION.
We have examined the evidence lead and the documents produced by the parties. The admitted facts are, the investment in Reliance Diversified Power Sector Fund in 2005 for Rs.75,000/ by the complainant with the opposite party and later another investment in 3 SIPS at Rs.2,000/ p.m. in the year 2010. It is also admitted that the opposite party have invested the amount in buying 3912.098 and another 3817.843 units and credited to the folio no 4779176063 of the complainant. The complainant not denied the receipt of Rs.1,65,368.01 credited to his account on redemption of the said fund in 2006. The opposite party admits the deduction of Rs.84,702.15 from the payment made to the complainant on redemption of the 3 SIPS investment made on 27.09.2012. It is denied by the opposite party that there is deficiency in service by deducting the excess paid amount in first investment from the later investment redeemed amount. Admissions and the denials reconciled and considered the following points for adjudication.
- Whether the complainant is a consumer under the consumer protection Act 1986?
- Whether deficiency in service against opposite party proved by the complainant?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have considered the documents produced and the evidence adduced by the parties. Considered the law and heard the party submissions and answered the above points as under.
- In the negative.
- Does not arise.
- Does not arise.
- As per delivered order
REASON
POINT NO 1: The complainant not produced any documents to show that he is the consumer. However the documents produced by the opposite party established the complainant is the customer of the opposite party. The question is whether the complainant being the customer of the opposite party is a consumer or not. All customers are not consumers. The opposite party contended that the complaint not maintainable under the Consumer Protection Act 1986 either in law or the facts of the case.
As per sec.2(d)(i) of the Consumer Protection Act 1986 in purchase of goods, excludes a person who obtains such goods for resale or for any commercial purpose and as per sec.2(d)(ii) exclude a person who avails of such services for any commercial purposes from the ambit of consumer definition terming it as the commercial purpose. As per Act the commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. As per the explanation for the provision, exempts the commercial purpose if it is for earning lively hood by self employment. On careful scrutiny of the complaint and the version of the parties the facts emanated are the complainant through the opposite party purchased the units of the fund in the name of the complainant for reselling it at the time of redemption for a profit. Either the units purchased or service availed to invest in the fund for buying units is purely commercial purpose which is the investment in shares and stocks to earn profit. Some time may be loss also. It is not for earning livelihood by self employment basis. Also the dispute is related to not of service of the opposite party but alleged wrong recovery of excess paid amount in the previous investment from the later investment redeemed proceeds. Section 72 and 73 of the contract Act provides for recovery of excess amount paid by mistake which reads 72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it
Hence the subject matter is the one related to the mode of recovery of money but not of breach of promise or unfair trade practice in relation with service rendered or product purchased resulting in deficiency in service which is not to be dealt with under the Consumer Protection Act 1986. As such we are of the opinion that the complainant is not the consumer as defined in the Consumer Protection Act 1986 and the complaint is not maintainable under this forum and hence we answered the point no 1 in the negative.
POINT NO 2 and 3: Since we hold the point no 1 in the negative as the complainant is not the consumer and the dispute is not maintainable under this forum we answered as does not arise. Since evidence already lead and the proceedings reached the final stage we would like to express an observation without going into the merit of the dispute and keeping an option open to the complainant to approach appropriate Forum for his grievance.
2. From the complaint averments and the documents and the evidence of the parties we observed the complainant admitted that he had paid only Rs.75,000/ for the purpose of investment to the opposite party and the opposite party purchased the 3918.098 units on 22.08.2005 and another 3817.848 units on the following day on 23.08.2005. We cannot imagine an amount of Rs.75,000/ investment fetches an amount of Rs. 1,65,368.01 within a year. On request by the opposite party the complainant not produced the debit entry in his bank account for having paid Rs.75,000/ again for the purchase of 3817 units on the following day on 23.08.2005. There is ample ground to presume the mistake in purchase of units twice for the invested amount of Rs. 75,000/. Hence the opposite party as per contract Act section 72 is entitled for the recovery of the excess paid. Only the question is the mode of recovery. The complainant claims he has not given authority to deduct from the future dues to him where as the opposite party contends that as per additional information clause 11 they have right to set off from the future payments. Since the complainant is not the consumer as per the Consumer Protection Act 1986 this forum cannot adjudicate the matter hence not proceeded further.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost. The complainant is at liberty to approach appropriate Forum for his grievance and may take the advantage of the section 14 of the limitation Act.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 3rd March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Alwyn Camil Pais,
Documents marked on behalf of the Complainant:
Ex C1: Office copy of lawyers notice dated 21.3.2013 issued to Opposite Party.
Ex C2: postal Acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW1: Mr. Sreesha K.L.
Documents marked on behalf of the Opposite Party:
Ex.R1: Letter of Authority of Opposite Party.
Ex.R2: 18.8.2005: Purchase application by the complainant.
Ex.R3: 08.10.2011: Letter issued by the Opposite Party to the complainant.
Ex.R4: 12.04.2012: Letter issued by the Opposite Party to the complainant.
Ex.R5: 17.09.2012: Letter issued by the Opposite Party to the complainant.
Ex.R6: 01.10.2012: Letter issued by the Opposite Party to the complainant.
Ex.R7: 17.10.2012: Letter issued by the Opposite Party to the complainant.
Ex.R8: 04.10.2012 to 19.10.2012: Copy of the internet Communication.
ExR9: 22.11.2012: Letter issued by the Opposite Party to the complainant.
Ex.10: 18.04.2013: Reply notice to the legal notice issued on behalf of the complainant.
Dated: 03.03.2017 MEMBER
