(9th November 2012) Per- Hon’ble President I/C - Mrs. Jyoti A. Mandale 1. According to the Order passed by the Hon’ble State Commission on 14/01/2011 this matter is remitted back to this Forum for the Opponent to file W/S and documents of evidences. 2. It is submitted by the Complainant that she had opened the demat account in March 2008 for selling and purchase of shares i.e for trading with Opponent. She has deposited amount of Rs.60,555/- with the Opponents as stated by Opponent amount of Rs.5 paise was to be taken as brokerage for trading. It was noticed by the Complainant that instead of charging Rs. 5 paise they have charged Rs. 10 paise as brokerage and on 06th June 2008 itself the email was sent by the Complainant to the Opponent to stop the transaction going into the account but inspite of her email request Opponent continued the trading transaction and disposed amount from her account. The Complainant on 02/08/2008 sent letter to Opponent saying that the amount Rs.60,000/- should be reversed back into her account with interest or else she legal action against them. She submitted that as no response was given by Opponent the Complainant again on 20/09/2008 sent a notice to the Manager of the Company saying that the deposited amount in her account should be reversed into her account with interest. The Complainant says that she suffered immense mental stress, agony due to the conduct of Opponent. 3. The Complainant has filed this complaint alongwith affidavit and List of Documents. In the list of documents she has filed the application given to the Vashi Police Station dtd. 27/08/2008,e-mail sent to Opponent on 06/06/2008 and 02/08/2008, Xerox copy of pass book of Bank of India, Notice sent to Opponent on 20/09/2008, Acknowledgement receipt of the notice dtd.22/09/2008. 4. Notice was sent to Opponent Viz. exhibit 9 A which was acknowledged by Exhibit 19 as the matter was remitted back to the District Forum the Opportunity was given to the Opponent to file the written version and thereby resisted the claim of the Complainant. Opponent filed written version alongwith the documents. In written version it is submitted by the Opponent that as the Complainant is being taking services from us for commercial purposes for making profit by trading in stock market so she is not a consumer and as the Complainant is not a consumer this complaint should be dismissed with heavy cost. Secondly the Opponent says that as Complicated issued are involved in this matter and elaborate evidence is to be taken as number of transactions, relating to orders placed with the respondent who is a share broker for purchaser of shares in various companies. The proper remedy for the Complainant is to file the regular suit before the competent Civil Court. For this purpose the Opponent has listed no. of references in his W/s. The Opponent says that as this matter is not maintainable as no cause of action is there in this complaint the matter may be dismissed with cost. 5. The Opponent further submits that Opponent no. 2 is a Limited Company and incorporated under Companies Act, 1956 having its registered office at Thane and trading member of National Stock Exchange of India Ltd (NSE) having registered with the Securities and Exchange Board of India (SEBI) under the Stock Brokers and Sub-Brokers rules, 1992 under registration no. INB231097537. The Complainant entered into the agreement with the Opponent to become the member to do the stock trade business with the Opponent she entered into the agreement of broking and depository services, Combined risk agreement, GPA etc. She is well aware of the terms and conditions as she has executed the documents given by the Opponents. After going through the terms and conditions the Complainant issued the cheque in favour of the Opponent and opened her account and according to the terms and conditions the Complainant is well aware that if any dispute arises in the transactions, the dispute may be settled by referring to the sole Arbitration at Mumbai as per the Arbitration Act. Any dispute if arises out of the agreement it shall be settled by the arbitrator appointed by India Infoline Securities Pvt. Ltd., which shall be held in Mumbai. Any disputes arising between the parties in respect of this agreement of any contract dealings or transactions or interpretation or construction of the agreement are subject to the arbitration procedure as prescribed by the Exchange provisions so Complainant has no right to seek any reliefs for the want of jurisdictions. 6. The Opponent says that they are maintaining their accounts and dealings by hiring all qualified Accounts Officers. All the transactions of the customers are getting scrutinized and checked by qualified and efficient Accounts people at given point of time. According to this they sent confirmation letter, E-mail about transaction of accounts which was accepted by her without any protest. They further denies that they were taking brokerage from the Complainant @10 paise. They say that when it was revealed immediately the Opponent deposited the excess brokerage to the Complainants account no email was received by them from the Complainant. The ledger account was showing that the trading was done from June 2008 to June 2009 which was informed to the Complainant from SMS on the Mobile number. As the entire complaint is based on broker client agreement the servant and masters liability doctrine is not applicable. 7. The Opponent says that the Complainant has not stated or furnished any documents details to prove her claim and also not explained the exemplary damages she has caused and the charges of the legal notice travelling expenses the complainant has not produced any voucher etc., hence is not entitled to any relief in this complaint so this complaint may be dismissed with cost. 8. The Opponent has filed documents alongwith the written version as follows- 1.Broker Client Agreement between the Complainant and Opponent BSE and NSE. 2. Statement of Ledger Account. 3. SMS Logs sent by Complainant to Opponent on her mobile number 4. Email loges whereby the Opponent sent all trade confirmation on her email ID 5. Reply dtd. 15th October 2008 addressed to Mr. Sanjay Sampat, Dy. Manager BSE. 6. Reply dtd. 16th October 2008 addressed to NSE Mumbai by the Opponent. 7. Investor Grievance Redressal Committee Quorum justice R.G.Sindhakar Rtd., and Ulhas Lalbai decision dtd. 2/12/2008 advised the Complainant to go for arbitration. 9. We have gone through the W/A of Opponent , reply to the documents by the Opponent was given by the Complainant, her oral submission on 05/10/2012. Opponent was absent. Matter was heard and following points were raised for consideration- 1.whether the Complainant is a consumer as defined u/s 2(1)d of Consumer Protection Act ? Ans – No. 2. Whether the Complainant is entitled to relief as prayed in the complaint? Ans – No. Findings are as follows- 10. The Complainant has not submitted the agreement copy alongiwth her complaint except the e-mail sent by her to Opponent and passbook of the bank of India to show the Bank statement. The Opponent in the W/s has raised the objection that the Complainant is not a consumer under provisions of Consumer Protection Act 1986 as Complainant is availing services of the Opponent for commercial purpose it is submitted by the Complainant that she has opened a Dmat account with the Opponent for buying and selling the shares and trading in stock market and for that purpose she is a consumer. On the contrary the Opponent say that the object behind opening that account was of commercial nature and in view of the terms 2(1)d of Consumer Protection Act 1986 parties who avail services are excluded from the definition of the consumer and therefore the Complainant is not a consumer and therefore the complaint is not maintainable under Consumer Protection Act and therefore is should be dismissed with cost. 11. It is clear from the averments made in the complaint that in order to facilitate trading in shares and securities transactions the complainant had opened a Dmat account with the Opponent parties. The Opponent Parties according to the agreement has decided to charge Rs. 5 paise as brokerage charges for the trading Dmat account. The Complainant grievances is that inspite of the agreement she further came to know that they had charged Rs.10 paise instead of charging Rs. 5 paise as brokerage charges. 12. In the complaint it is avered that the Complainant opened the account for trading and it is specifically observed that this trading Dmat account opened by the Complainant with the Opponent was to derive more income and object for the account was of commercial in nature. 13. By the amendment account 2003 person who avails services for commercial purposes as excluded from the definition of the Consumer for this purposes the Forum relied on the decision of the Hon’ble State Commission R J Uttamchandani V/s. Indian Overseas Bank decided on 29/11/2010 in the Hon’ble State Commission has held that it is a case of hiring services utilizing facility of demat account for trading in shares or investment for a commercial purpose. Thus the appellants/complainants are not the within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act.” 14. In another decision of the State Commission in complaint no. 09/162 decided on 18/01/2011 the state commission has held that “ We find that, alleged banking services of Dmat acount of the bank being hired for the commercial purpose namely to trade in shares, the Complainants are not consumer. 15. The Hon’ble State Commission in 1st Appeal no. A/10/532 decided on 22/06/2011 in which it was alleged that deficiency in services relates to activity of trading in shares such trading activity being a commercial activity in service hired( if any) relates to it which one is falling under the category of hiring services for commercial purposes. The Complainant has not make out any case under the explanation under section 2(1)(d) of the Consumer Protection Act 1986 to the effect that such trading is for her self employment and earning her livelihood therefore she being not a consumer within the meaning of Consumer Protection act the dispute is not a consumer dispute. 16. From the facts of the present case and the aforesaid discussion we held that the Complainant has availed services for commercial purposes and therefore the complainant is not a consumer as defined under Consumer Protection Act in the result we answer the question in negative. 17. As the complainant is not a Consumer under section 2(1)(d) of the Consumer Protection Act she is not entitled for any relief as Prayed from the Opponent. Hence we pass the following order- ORDER 1.Complaint no. 174/2008 stands dismissed. 2.No order as to cost. Dated – 09/11/2012 Place – Kokan Bhavan Navi Mumbai | 
