BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.
Complaint No.15 of 2014.
Date of institution: 8.01.2014.
Date of decision: 22.04.2016
Prem Sagar Garg aged about 67 years son of Sh. Rameshwar Dass Garg, 7 KM Stone, Chhachhrauli Road, V.P.O. Udhamgarh, Jagadhri 135003, District Yamuna Nagar.
…Complainant.
Versus
- Reliance Mutual Fund 11th and 12th Floor One Indiabulls Centre Tower-1 Jupiter Mills Compund, 841, Swenapati Bapat Marg, Elphinstone road, Mumbai-400013.
- H.D.F.C. Bank Limited, Near Nirankari Bhawan, Jagadhri Road, Yamuna Nagar
…Respondents.
BEFORE: SH. ASHOK KUMAR GARG, PRESIDENT.
SH. S.C.SHARMA, MEMBER.
Present: Sh. Pawan Kumar Punia, Advocate, counsel for complainant.
Sh. Atul Pandey, Advocate, counsel for respondent No.1
Sh. K.K.Gupta, Advocate, counsel for respondent No.2.
ORDER
1. Complainant Prem Sagar Garg has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to refund of the fund value of the investment i.e. Rs. 1,58,296/- with upto date interest thereof and liquidated damages alongwith interest at the rate of 24% per annum from the date of due till its realization and further to pay Rs. 1,00,000/- as compensation for mental agony and harassment as well as litigation expenses to the tune of Rs. 20,000/-.
2. Brief facts of the present complaint, as alleged by the complainant, are that the complainant purchased the Reliance Mutual Funds under SIP Plan on 6.9.2007 from Op No.1 through Op No.2 vide application No. 1957534 and invested Rs. 1,20,000/-. As per latest statement received from the company, the fund value of the above investment was Rs. 1,58,296/- as on 20.1.2012. The complainant made a request to OP No.1 through Op No.2 for redemption of above investment several times. However, each time, the redemption request made by the complainant was rejected under the pretext of different signatures on the redemption slip and the signatures available on the application form available with Op No.1 on the face of the fact that such redemption requests were sent to Op No.1 through Op No.2 and signatures duly verified by the later. The Op No.1 had not acceded the request of complainant of redemption of abovesaid investment despite repeated requests and request of the complainant was rejected. From the above sequence of events, it is construed that the OP No.1 has willfully harassed and prevented the complainant to redeem the amount invested by him in the reliance Diversified Power Sector Fund (Folio No. 4115443263) and is liable to refund the fund value Rs. 1,58,296/- with upto date interest thereof and liquidated damages. The complainant a number of times requested the Ops to refund the fund value with upto date interest but they always put off the matter on one pretext or the other and finally refused to accede the genuine request of the complainant. Finding no other alternative the complainant got served a registered AD legal notice dated 17.7.2013 to the Ops which was duly received by them. However, the OP No.1 instead of complying with the notice has sent an evasive reply. The OPs have rendered deficient and negligent services by not refunding the fund value of the investment, due to which the complainant has suffered a lot of mental agony, harassment etc. Hence this complaint.
3. Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is false, incorrect, baseless, malicious and malafide and is wholly misconceived and groundless and is nothing but an abuse of the process of law, suppress the material facts, the complaint is vexatious and frivolous and on merit it has been submitted that the complainant had at his own wish and volition made an investment in Reliance Diversified Power Sector Fund- Growth Plan-Growth option, a scheme of RMF for an amount of Rs. 20,000/- by way of subscription application and had also initiated a systematic investment plan (hereinafter referred to as SIP) with Op No.1 for the same amount of Rs. 20,000/- which would be deductible on the 10th of every month commencing from October 2007 to August 2008, from his HDFC Bank account No. 2101000052019 vide request submitted by him. A copy of the said initial purchase application form (Annexure R-1). In this way the complainant had authorized his bank i.e. HDFC to deduct a sum of Rs. 20,000/- from his saving bank account No. 2101000052019 and invest the same in Reliance Diversified Power Sector Fund-Growth Plan- Growth option, a scheme of Reliance Mutual Fund. In the month of June, 2012 the complainant submitted a request for redemption of said investment; however, the said request was rejected for the reason that the signature on the redemption slip submitted with OP No.1 was different from the signature of complainant on the initial application form that had been submitted with them at the time of first purchase. Accordingly, a system generated letter dated 28.6.2012 was sent to OP No.1 in respect of the same and it was also stated that if OP No.1 intended to update his signature in the records of OP No.1, he was required to submit in person the documents alongwith valid identity proof i.e. fresh request with new signature duly attested by the bank, original cheque leaf, original bank account statement for verification.
4. Thereafter, the OP No.1 had again received redemption requests from the complainant on 11th July 2012 and 6th September 2012, both the requests were rejected as the signature of the complainant on the redemption slip was different from the signature on the initial application form submitted with them. Accordingly, system generated letters dated 12th July 2012 and 8th September 2012 respectively were sent to the complainant. As such the allegations of the complainant against the Op No.1 speaks great volumes by itself about the malafide, mischievous and ulterior intentions of the complainant and Op No.1 vehemently denies all such statements, averments, allegations of the complainant and prayed for dismissal of complaint.
5. OP No.2 filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi, complainant has concealed the true and material facts from this Forum and there is no relationship of consumer and supplier between the complainant and OP No.2 and on merit it has been submitted that all the documents related to said policy were sent by Op No.2 being sourcing agency to OP No.1 thereafter the OP No.2 has no relevancy with the said policy and the same is relevant between the complainant and OP No.1. As such, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of complaint.
6. To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photo copy of application form as Annexure C-1, Photo copy of registered AD legal notice dated 17.7.2013 as Annexure C-2, Photo copy letter of rejection of redemption request as Annexure C-3, Acknowledgement as Annexure C-4, Photo copy of letter dated 28.6.2012 as Annexure C-5, Photo copy of letter dated 18.07.2012 as Annexure C-6, Photo copy of letter dated 12.07.2012 as Annexure C-7, Photo copy of letter dated 02.09.2012 as Annexure C-8 and closed the evidence on behalf of complainant.
7. On the other hand, counsel for the OP No.1 tendered into evidence documents such as Photo copy of Application Form as Annexure R-1, Photo copy of statement of account dated 20.07.2013 as Annexure R-2, Photo copy of letter dated 28.06.2012 for redemption of units in Reliance Diversified Power Sector Fund-Retail growth plan -Growth option as Annexure R-3, Photo copy of letter dated 12.07.2012 for redemption of units as Annexure R-4, Photo copy of registered AD Legal Notice as Annexure R-5, Photo copy of reply of notice dated 17.07.2013 as Annexure R-6 and closed the evidence on behalf of OP No.1.
8. Counsel for the OP No.2 tendered into evidence affidavit of Ashish Jain, Dy. Branch Manager of HDFC Bank as Annexure RW2/A and closed the evidence on behalf of OP No.2.
9. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.
It is not disputed that complainant purchased Reliance Mutual Fund SIP Plan on 6.9.2007 from Op No.1 through Op No.2 vide application No. 1957534 and invested Rs. 1,20,000/- by paying Rs.. 20,000/- every year on the 10th of every Month commencing from October, 2007 from his HDFC Bank account bearing No. 2101000052019. It is also not disputed that in the month of June 2012, complainant submitted a request for redemption of said investment. However, the said request was rejected for the reason that signature on redemption slip submitted by OP No.1 was different from the signature of the complainant on the initial application form that had been submitted with the OPs at the time of first purchase. Further, it is not disputed that complainant submitted again redemption request on 11.7.2012 and 6.9.2012 but both the requests were also rejected on the same ground.
10. The only plea of the complainant is that despite requests of redemption of the policy in question made in the month of June, 2012 the OPs Insurance Company has not refunded the Fund Value alongwith interest up to date and liquidated charges to the complainant on the false ground that signatures on the redemption slip was different from the signature of complainant on the initial application form which constituted the deficiency in service unfair trade practice on the part of OPs and referred the case law titled as INC Fund Management Ltd. Versus Shakuntala Brij Mohan & Others, III(2003) CPJ page 34 (NC) wherein it has been held that Consumer Protection Act, 1986- Section 21(b)- Securities- Units of “Ind Jyoti- 7 Years Incremental Growth Fund” purchased- Redemption seeked after expiry of 7 years period- Repurchase value paid instead to redeem the investments- No question of repurchase after the life of scheme- Deficiency in service proved- Mutual Fund- Authorities liable to pay differential amount with interest and costs.
11 On the other hand, the contention of the OP No.1 i.e. Reliance Mutual Fund is that all the contents of the complaint are totally manipulated, false and vexatious and abuse of process of law. First of all, complaint of the complainant is not maintainable as it is settled principle of law that unit link insurance policies are not subject matter of the Fora and referred the case law titled as Ram Vallabh Aggarwalla Vs. Bajaj Alliance Life Insurance 2013 (iii) CPJ Page 203.
12. Learned counsel for the OP No.1 further argued that in the month of June 2012, the complainant submitted a request for redemption of the said investment made by him with Reliance Mutual Fund. However, the said redemption request was rejected for the reason that the signature on the redemption slip submitted with Op No.1 was different from the signature of the complainant on the initial application form that had been submitted with them at the time of first purchase. Accordingly the OP No.1 sent a letter to the complainant to submit the documents such as fresh request with new signature duly attested by the banker mentioning the bank account number and original cheque leaf and original bank account statement alongwith a valid identity proof for verification but the intention of the complainant is to harass and vex the Op No.1. Without exhausting any of the processes, methods or remedies available to the complainant, he has directly approached this Forum alleging unethical and treacherous practices. Learned counsel for the OP No.1 referred the case law titled as Morgan Stanley Mutual Fund Versus Kartick Das with Arvind Gupta Vs. Securities and Exchange Board of India and others, Civil Appeal No. 4584 and 4587 of 1994 decided on 20.05.1994 by our Hon’ble Supreme Court of India wherein it has been held that there is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We thing such a tendency should be curbed. Having regard to the frivolous nature of the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily. Therefore, we award cost of Rs. 25,000/- in favour of the appellant. It shall be recovered from the first respondent C.A. 4584/94 arising our of SLP © No. 272/94 is allowed accordingly. Learned counsel for the OP No1 further referred the case law titled as Shri Chandra Shekhar Mishra Versus Indiabulls Securities Ltd. etc. Revision Petition No. 2821 of 2012 National Commission wherein it has been held that the Consumer Protection Act I not for entertaining or compensating speculative transactions or losses”. Therefore, the appellant is hereby directed to agitate his grievances before the competent dispute resolution mechanism as provided under the SEBI Act, if he so likes.
13. Learned counsel for the OP No.1 further referred the case law titled as Ram Lal Aggarwalla Versus Bajaj Allianz Life Insurance Co. Ltd. & Others, 2013(3) CPC Page 46 National Commission wherein it has been held that policy was taken for investment of premium amount in share market for a speculative gain and as such complaint is not covered under the definition of a Consumer- Complaint under C.P.Act is not maintainable and further referred the case law titled as Jaimala Versus M/s Reliance Portfolio Management with A Subramaniam Iyer versus M/s Reliance Portfolio Management, 2015(4) CLT page 503 wherein it has been held that Share Trading- Commercial purpose- OP Partly admitted deficiency on their part- Complainant has neither pleaded nor proved investment for earning his livelihood by means of self employment and transaction of shares were totally speculative- Held- Complaint is not maintainable-OP party admitted deficiency on their part- Further held- As complaint itself is not entertainable by Consumer For a, Complainants cannot get benefit of this admission.
14 After hearing the parties at length, we are of the considered view that there is a deficiency in service or unfair trade practice on the part of OP No.1 as the OP No.1 insurance company has not filed any expert report of handwriting expert or any cogent evidence that signature of the complainant was different on the redemption slip as well as on the initial application submitted by the complainant. Even, no affidavit has been filed by the officials who examined both the documents with his comments/report on the difference in the signature as alleged in the written statement. Further, the OP No.1 Insurance Company even did not bother to file the copy of that request letter and initial application form to prove their version. However, from the perusal of proposal form Annexure R-1 filed by OP No.1 on which the signature of the complainant is clearly visible prima facie totally tally with the signatures appended on the complaint as well as other documents, affidavit Annexure CW/A and application dated 18.07.2012 (Annexure C-6).
15. Now a days the insurance companies in India with a view to escape and avoiding its legal and factual liabilities to make the payment of sum assured are fake acting in dramatically, opposite of the principle of fairs play and decency and in that series it is not even carrying that its wrongly actions are causing wrongful losses to their customers. In the present case instead of acting fairly the insurance company is trying to avoid from its liability by making false pretext, which cannot be allowed to do so.
16. In the circumstances noted above, as the OP No.1 Insurance Company has withheld the best evidence due to the reason best known to them by not filing the documents i.e. request for redemption in the month of June and report of handing writing expert or officials who tally the signatures of the complainant and opined that the signatures were different, we are unable to held that there was no deficiency in service or unfair trade practice on the part of Op No.1. The law cited by the counsel for the OP No.1 is not disputed but not applicable in the present case as in the present case the OP No.1 Insurance Company has wrongly and with malafide intention rejected the redemption request of the complainant in respect of policy in question on the false and flimsy grounds. Hence, we have no option except to partly allow the complaint of complainant qua OP No.1 and as nothing has been proved against OP No.2, so, the complaint qua OP No.2 is hereby dismissed.
17. Resultantly, we partly allow the complaint of complainant and direct the Op No.1 to refund the Fund Value of the investment and other benefits, if any, as on the date of request made for redemption i.e. 27.6.2012, which is evident from the account statement (Annexure R-2) alongwith interest at the rate of 7% per annum from the date of redemption i.e. 27.6.2012 till its actual realization. OP No.1 is further directed to pay Rs. 2000/- as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.
Announced in open court. 22.04.2016.
(AHSOK KUMAR GARG)
PRESIDENT
(S.C.SHARMA)
MEMBER
