By. Sri. Chandran Alachery, Member:
The complaint is filed Under section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite parties to pay Rs.2,00,000/- as compensation for the loss sustained to the complainant financially and mentally due to the deficiency of service from the part of opposite parties along with cost of the proceedings.
2. Brief of the complaint:- The complainant entered in to commodity trading with opposite parties after paying Rs.1,23,100/- by way of cheque to the opposite parties and the opposite parties started trading for and on behalf of complainant. The opposite parties used to accept brokerage from complainant as consideration for their service. On 29.04.2014, when the complainant have sufficient bank balance in his account, the complainant gave direction to opposite parties to hold 1 copper along with 2 cardamom and to avoid silver mini. But on the contrary, the opposite parties hold silver mini and avoid copper and thereby caused heavy loss. When the complainant send notice to Hedge commodities limited Director, the complainant got a reply stating that the complainant at that time did not have sufficient bank balance.
3. On receipt of complaint, Notices were issued to opposite parties and they appeared before the Forum and filed a statement directly. In the statement, opposite parties contented that the transactions executed in the account of the complainant were as per the knowledge and consent of complainant only. The opposite parties were alerting the complainant through sms to the mobile of complainant for each transactions intimating the bill amount on a daily basis and also contract notes to the registered mail of complainant. The payments from the complainant are frequently taking more than reasonable time to clear or bounced by bank quoting fund insufficient as the reason. The opposite parties admitted that opposite parties received a total payment of Rs.1,03,000/- on various dates from the complainant and paid payment of Rs.13,500/-. The opposite parties strongly deny the statement of complainant that the opposite parties were trading on behalf of complainant. All trades were executed according to the complainant's order. The opposite parties provided confirmations and contract notes for the trades of complainant on daily basis. On 29.04.2014, the account balance of complainant was Rs.4,740.77/- and the complainant produced a cheque for Rs.12,400/- in good faith, the opposite parties had given exposure to trade in futures contract in cardamom, copper and silver mini. As per the above margin details, it is very clear that the opposite parties were not in a position to hold 2 cardamom and 1 copper since the margin requirement was Rs.31,134/-. So opposite parties retained only 1 cardamom June contract with a margin requirement of Rs.5,133/- against his clear credit balance. Later the cheque was bounced on 15.04.2014, he had traded in copper April contract and silver mini contract. The complainant bought 3 lots of above contract at an average market price of Rs.405/- per kg. If the complainant wanted to book a maximum loss of Rs.3,000/-, the complainant could have placed a top loss order to limit his loss but he have not done that. Also the complainant did not raise any complaint about these trades until 12.05.2014, while the complainant was trading on various days after 15.04.2014. Considering the above facts, it is very clear that the complaint is baseless. The complainant is liable to pay Rs.11,394.03/- to the opposite parties and the complainant filed this complaint to avoid civil and criminal litigation against him. In addition to the statement, the opposite parties filed another version and denied all material allegations in the complaint. The opposite parties received only Rs.1,03,000/- and not Rs.1,23,100/- as alleged. On 29.04.2014 only Rs.4,740/- was there in the account of the complainant and not Rs.25,000/- as alleged. The complainant is used to arrange cheque for trade usually there is delayed encashments in the account. The opposite parties were taking risk of trading even without sufficient credit balance in the account of the complainant. There is no deficiency of service from the part of opposite parties.
4. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether the complaint is maintainable before this Forum?
2. Whether there is any deficiency of service from the part of opposite parties?
3. Relief and Cost.
5. Point No.1:- The complainant filed proof affidavit and is examined as PW1 and documents are marked as Ext.A1 to Ext.A17 and called for documents is marked as Ext.X1. The opposite parties filed proof affidavit and is examined as OPW1 and Ext.B1 to Ext.B4 were marked. First of all, the Forum has to look in to the first issue of maintainability. The opposite parties filed an I.A.267/2014 praying to stay the further proceedings of the case and refer the matter for arbitration. As per the judgment Honorable National Commission reported in CPJ part-6, June 2014, the Honorable National Commission held that if same relief were claimed before Arbitrator and the Forum or State Commission, two parallel proceedings for similar relief cannot run simultaneously. Here no arbitration case is pending any where regarding the subject matter. The I.A.267/2014 is a petition to refer the matter for arbitration. Here the complainant alleges deficiency of service from the part of opposite parties. This Forum have no power to refer the matter for arbitration. Regarding the question, whether commodity trading is coming under commercial transactions, no such pleading is there with respect to it in the version and statement filed by the opposite parties. The complainant stated that the commodity trading done by him is only for his livelihood and not for commercial purpose. On analyzing the trading of complainant in this particular case the Forum found that the complainant is not trading with huge amounts or crores of business. It is seen that he is doing business for earning very low income for his livelihood. The Honorable National Commission held in a case reported in 2012 (2) CPR 395(NC), the National Commission held that the purpose of investing money in shares is not for commercial gain but to earn livelihood. The Forum is of the view that the term “commercial purpose” must be interpreted considering the facts and circumstances of each case. Here in this case, the circumstances is different and the complainant is coming under consumer as stated in section 2(1) (d)of consumer Protection Act. Point No.1 is answered in favour of complainant.
6. Point No.2:- The complainant stated that the opposite party sold the copper for Rs.394.95/- instead of the direction given by the complainant to sell the copper for Rs.404.50/- and thereby the complainant sustained loss. To prove this, the complainant produced Ext.C1 audio CD contains the conversation between complainant and opposite party No.1. It is stated in Ext.A5 and Ext.B3 series documents. In cross-examination, OPW1 stated that on 15.04.2014 the complainant directed the opposite party to sell the copper for Rs.404.50/- and opposite party could not sell it due to lack of time and market fluctuation. This is a clear violation of Ext.B1 Client Registration Form. Another allegation of complainant is that the opposite party did not perform the directions given to opposite party by the complainant on 29.04.2014 to hold the copper to the next day. But the opposite party did not hold the copper and sold the copper. The value of copper is increased in the next days and by that the complainant sustained a loss of Rs.10,000/-. As per Ext.B3 page No.1, Call No.1 & 2 shows that the complainant give direction to hold copper and not to sell copper. But opposite party says that the complainant did not have sufficient margin to hold copper. Hence the Forum is of the opinion that in such cases, the opposite party can demand to maintain sufficient funds in the account of the complainant instead of selling the item in a lesser price. More over, the opposite party did not produce any document to show that the complainant do not have sufficient funds in the account. It is up to the opposite party to prove that the complainant did not maintain sufficient funds in the account for day to day transaction. But no convincing and cogent evidence is produced by the opposite party to substantiate their case. If opposite party had sustained any loss out of the transactions with the complainant, the opposite party must take steps to recover it from the complainant. But in this case, no such steps are seen taken by opposite party so far. The complainant says that he had submitted cheque for presentation on 07.04.2014 and is having sufficient fund in the account of complainant on 15.04.2014. Again the complainant stated that he had submitted 2 cheques on 25.04.2014 and 29.04.2014 for conducting business. It is up to the opposite party to prove otherwise by cogent and convincing evidence. But the opposite party failed to prove their case. So by analyzing the entire evidences, the Forum found that there is deficiency of service from the part of opposite parties in performing their service. Point No.1 is found accordingly.
7. Point No.3:- Since Point No.2 is found in favour of complainant, the complainant is entitled to get cost and compensation.
In the result, the complaint is partly allowed and the opposite parties are directed to pay Rs.75,000/- (Rupees Seventy Five Thousand) as compensation to the complainant for the deficiency of service from the part of opposite parties and the opposite parties are also directed to pay Rs.10,000/- (Rupees Ten Thousand) as cost of the proceedings. The opposite parties shall comply the Order within 30 days from the date of receipt of this Order, failing which the complainant is entitled to get 12% interest for the whole sum.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30th day of September 2015.
Date of Filing:02.06.2014.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Thankachan. Complainant.
Witness for the Opposite Parties:-
OPW1. Binumon. Hedge Equity Executive Operation.
Exhibits for the complainant:
A1. Copy of Lawyer Notice.
A2. Postal Receipt.
A3. Acknowledgment Card.
A4. Reply Notice. Dt:15.05.2014.
A5. Telephone call details in writing.
A6. Telephone call details in writing.
A7. Telephone call details in writing.
A8. Memory Card.
A9. CD.
A10. Telephone call details in writing.
A11. Telephone call details in writing.
A12. Telephone call details in writing.
A13. Telephone call details in writing.
A14. Copy of Letter. Dt:13.01.2015.
A15. Copy of Statement.
A16. Sms Details in writing.
A17. Payment Slip. Dt:07.04.2014.
X1. Bank Account Statement.
Exhibits for the opposite parties:-
B1(1) to B(19). Client Registration Form.
B2. Transaction Details.
B3. Conversations in the CD in writing.
B4. Copy of Circular.
C1. CD.
C2. Transaction details for 2014-15.
C3. Transaction details.
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PRESIDENT, CDRF, WAYANAD.
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