Date of filing : 19-01-2010 Date of order : 25-09-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 10/2010 Dated this, the 25th day of September 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER Vijayalakshmi.M.V, W/o. Sathyanarayana.K.A, } Complainant Alathadka House, Po.Mulleria, Kasaragod. 671 543. (Adv. C.Damodaran, Kasaragod) The Manager, } Opposite party Geojith Comtrade, Ist floor Tiger Hills, Near L.I.C Kasaragod. 671121. (Adv. Jacob Joseph, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Shorn of all unnecessaries the case of complainant Vijayalakshmi is that being a client of opposite party on 18-11-2009 she sold 10 units of gold worth `1,70,854/- to be covered (brought) on the last day of settlement i.e. 05-01-2010 or before as per her instructions. She is doing the transaction through phone and not by personal visit. But to her surprise on 7-12-2009 she received a contract note dated 2-12-2009 whereby the gold units are purchased at `1,82,141/- by opposite party without her knowledge and instructions thereby causing a loss of `11,287. On 8-12-09 complainant visited the opposite party. According to opposite party complainant could not be informed. Since they could not get the complainant on line. There was no problem to the complainant’s phone and on further discussion it was revealed that opposite party used STD code to call complainant. The code was not necessary to get the complainant on line which the opposite party doing for last months. Since the Branch Manager expressed helplessness complainant contacted Divisional Manager, Kannur who advised the complainant to give a written complaint as the problem was wrong use of STD code according to him. On 10-12-2009 complainant submitted written complaint to opposite party and opposite party made an offer of `3,000/- as a compromise and it was not acceptable to the complainant The attempt of the complainant to settle the issue through Legal Service Authority is also failed due to non-co-operation of opposite party. Complainant could have made a profit of `4,000/- to `5,000/- if the gold was purchased on 5-1-2010 that last day of settlement. But for the unauthorized purchase of the gold without any instruction she suffered loss. Therefore the complainant claiming the pecuniary loss of `17,000/- and `10,000/- towards mental agony and `3,000/- towards the cost of the complaint. 2. Opposite party entered appearance and filed version. According to them trading in future commodity derivatives involves daily settlement position. Every day the open position are marked to market based in the closing price. The closing price has moved against the complainant. The complainant has not deposited the amount of loss resulting from the daily movement. She is bound to pay margin (loss) before commencement of trading on the very next day. The complainant failed to deposit the additional margin and an outstanding debt occurs in complainant’s account, the opposite party square up the whole position of the complainant on 2-12-2009. As per the terms and conditions between the complainant and opposite party, the complainant liable for any losses incurred due to such square up. The amount of initial margin is small relative to the value of the commodity. Transactions in commodity derivatives involves a high degree of risk. At the time of entering the commodity future trading, the complainant acknowledge and accept that there can be no guarantee of profits or no exception from losses while executing orders for purchase and sale of commodity derivatives being traded on MCX/NMEX/NCDEX. If the client commits default in paying in the MTM loss the opposite party shall be entitled to close out any of the clients position. There is no unauthorized purchase of gold and hence opposite party did not offer any compensation. There is no deficiency in service or negligence on the part of opposite party in dealing with the complainant. The complaint is without a cause of action and it is therefore liable to be dismissed. 3. Complainant filed proof affidavit in support of her claim. Exts A1 & A2 marked. Complainant cross-examined by the counsel for opposite party. On the side of opposite party Ext.B1 marked. Both sides heard documents examined. 4. Ext.A2 is the contract note of sale dt.18-11-2009 as per that 10 units of gold is sold for `1,70,854.53. As per Ext.A1 contract note of buy dt.2-12-2009 10 units of gold is purchased for 1,82,141/-. 5. The prime grievance of the complainant is that without her instruction opposite party done the transaction. She further alleges that in order to cover up the negligence opposite party attributes that they tried to contact her over phone by using STD code of the land line is not correct since on earlier occasions they used to contact her in the same land line number. But opposite party is quite silent about this averment. 6. Opposite party is not disputing that the complainant had time up to 5-1-2010 for the settlement of transactions as per the contract of sale. But without allowing the complainant to wait and without her instruction opposite party engaged in trade causing loss to the complainant. According to opposite party Ext.B1 agreement permits them to do such transactions. 7. But on perusal it appears that Ext.B1 nowhere gives unbridled authority to do transactions without the knowledge and consent of the client. Therefore the purchase as per Ext.A1 contract note without the knowledge and consent of complainant amounts to deficiency in service and opposite party is therefore liable to compensate the complainant on account of the loss sustained to her in the said transaction. 8. The claim of complainant is `30,000/- with interest and costs. According to the complainant she could have made a profit of `4,000/- to `5,000/-, if the gold was purchased on 5-1-10 the last date of settlement. But the dealing in commodity futures is a speculative business. One cannot always expect positive margins there is risks also associated with commodity positions in the market. Therefore the complainant is not entitled for the profit as she claimed. But the opposite party is liable to pay the differential margins figured in Exts A1 & A2. That would comes to `1,82,141/- - `1,70,854 = `11,287 apart from the compensation for the mental agony she suffered. Therefore the complaint is allowed and opposite party is directed to pay `11,287/- (rounded to `11,200/-) and a compensation of `4,000/- for the mental agony she suffered together with a cost of `3,000/- within one month from the date of receipt of copy of order. Failing which opposite party shall be further liable to pay interest for `11,200/-@ 12% from the date of complaint till payment. Sd/- Sd/- MEMBER PRESIDENT Exts. A1. 18-11-2009 Transaction Statement. A2. 2-12-09 Transaction statement. B1.13-1-09. Copy of the individual client registration form cum member client agreement entered in to between complainant and opposite party. PW1. Vijayalakshmi. Sd/- Sd/- MEMBER PRESIDENT Forwarded by order SENIOR SUPERINTEDENT Pj/ ` | 
