Complainant No. 1 present in person
Opponents through Lrd Adv. Natu
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(03/03/2014)
This complaint is filed by a senior citizen against the opponent bank for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant no. 1 is a senior citizen running 73 years of age. He is the trustee of Public Trust, An Educational Institute namely Maharashtra Rashtrabhasha Sbha, Pune. The complainant no. 2 is also a senior citizen, she is wife of complainant no. 1 and a Consulting Gynaecologist having her own hospital for last 43 years. She is also a Honorary Visiting Professor in Medical College at Talegaon. The opponent no. 1 is a Financial Institution engaged in banking business, opponent no. 2 is a Chief Manager of the bank and opponent no. 3 is officer in charge of mutual fund division.
2] The complainants have saving account with the opponent no. 1 and they had also deposited an amount of Rs. 38,85,000/- and Rs.50,73,207/- i.e. total amount of Rs. 89,58,207/-. The opponent no. 3 was in charge of SBI mutual fund of opponent no. 1. He told the complainant that if he will deposit amount in mutual fund, they will receive minimum 8% tax free dividends. On believing his words, the complainant had made application on 12/11/2010 to the opponent no. 2 for premature payment of fixed deposits for the investment of SBI mutual fund. Then said amount was transferred to mutual funds. While receiving list of TDR’s and maturity value in the handwriting of the opponent no. 3, the complainants came to know that penalty of Rs. 63,901/- and Rs. 58,674/- i.e. total amount of Rs.1,22,575/- was charged by the opponent. The complainants have wrote many letter about that penalty.
3] The opponent no. 3 took blank cheques from the complainants for the purpose of investment in SBI mutual fund account. The complainant made application under the RTI on 8/8/2011 and obtained zerox copy of the cheque. Those were in the handwriting of the opponent no. 3. The amount of these cheques was Rs. 1.00 Crore. That amount was transferred from saving account of the complainant to SBI mutual fund account.
4] The complainants have received dividends of Rs. 1,13,164/- and Rs.1,39,174/- i.e. less than 4% for the period from 14/11/2010 to 30/06/2011, as against the assurance of minimum 8% tax free dividends. It is the case of the complainants that the opponent no. 1 to 3 are guilty for deficiency in service, as complainants had sustained loss by transferring amount of fixed deposits to mutual funds. The complainants have claimed loss of Rs. 1,01,448/- with respect to the penalty charged by the opponent, amount of Rs. 3,97,661/- towards loss of interest, amount of Rs. 2,71,211/- towards credit of less amount while transfer from SBI Mutual Fund to saving bank account, Rs. 2,00,000/- towards compensation for mental harassment and Rs.10,000/- towards cost of the complaint. The total claim of the complainant is Rs. 9,80,270/-.
5] The opponents have resisted the complaint by filing written version. The facts as regards saving account, fixed deposit receipts and transfer of amount from the fixed deposit receipts to mutual funds are not seriously disputed by the opponents. According to the opponents, the complainants are senior citizens and well versed with the various provisions of law and dealing with the big Trust and handling financial matters of the said Trust. They enquired with the opponent no. 3 about the kind of investment. The opponent no. 3 was in charge of SBI mutual fund at the relevant time and he had informed the complainants about the said investment. Statutory warning is printed in every format of the mutual fund that mutual fund investments are subject to the market risks and investor is supposed to read the offer document before investing past performance may or may not be sustained in future. The complainant no. 1 is M.A., M.Com., LL.B. Hence, it is not possible that he had believed mere words of the opponent no. 3 and filed application on 12/11/2010 for premature payment of the fixed deposit receipts for the investment of the same in SBI mutual fund. It is the case of the opponent that as the fixed deposit receipts were encashed at premature stage, hence the penalty as claimed by the complainant were charged as per rules. The complainant had sustained loss as they have asked payment of fixed deposits at premature stage that does not amount to deficiency in service. The complainants had sustained losses after investing amount in mutual fund due to market rates and complainants were aware about these facts. The opponents have contended that there is no deficiency in service and complaint is liable to be dismissed.
6] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether the transaction between the parties as regards investment in mutual fund is a ‘consumer’ transaction? | In the negative. |
2. | Whether complainants have established that the opponents have caused deficiency in service by sustaining losses to them? | In the negative. |
3. | What order? | Complaint is dismissed. |
REASONS :-
7] It is significant to note that both the complainants are highly qualified. The complainant no. 1 is a post graduate in commerce as well as law graduate. The complainant no. 2 is a medical practitioner. Both are not lay men. It is common experience and the statutory duty of the nationalized banks to cut TDS from the interest of fixed deposit as well as on saving account. It reveals from the record that the complainants had deposited 89 lacs in fixed deposit with the opponents. When they found that they are sustaining losses due to cutting of income tax at sources, they have decided to siphon that amount towards mutual fund. With the advice of the opponent no. 3 they have invested near about 1 crore in mutual fund. It is crystal clear like sunlight that investment in mutual funds are suffering from
the market risks. Even a common man is knowing this fact. When complainants have felt that they will be benefited if market will go up and they will get handsome dividend, then they have invested in the mutual funds. It is also known to everybody that, if fixed deposit receipt is encashed before maturity, the investor has to suffer from losses. The complainants have nowhere pleaded that they are earning their lively hood on the dividends as well as interest of the fixed deposits. It is very difficult to digest that a person who is investing Rs. 1 Crore in mutual fund is investing the same for his lively hood. It appears from the transaction that complainants had invested the said amount in mutual fund for earning more and more profit for the benefit of income tax. That transaction can not be termed as transaction of a ‘consumer’. In catena of judgments of Hon’ble National Commission, State Commission and Apex Court it has been observed that the amounts invested in the mutual funds and share market are not for earning lively hood and these are commercial transaction. As the complainants have invested their amount with open eyes, they can not blame opponents for sustaining losses. This Forum does not found any deficiency in service in the disputed transaction. It is the opinion of the Forum that complainants are not ‘consumers’. They have no right to knock door of Consumer Forum with regards to this transaction. Moreover, they were knowingly invested their amount in mutual fund after realizing pros and consequences of the market risks and there is no iota of deficiency in service on the part of opponents. In the light of the above discussion, the Forum answers the points accordingly and pass the following order.
** ORDER **
1. Complaint stands dismissed. In the
peculiar circumstances, there is no order
as to the costs.
2. Copies of this order be furnished to
the parties free of cost.
3. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 03/03/2014
