BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOPPAL.<br /> CONSUMER COMPLAINT NO. – 38/2007.<br /> <br /> PRESENT: - 1. Sri. Rachappa.A.Chiniwal, B.Sc., L.L.B. .. President<br /> 2. Sri. S.B. Reddy, B.A., L.L.B. .. Member<br /> <br /> <br /> I. Name of the compalinant: - Sri. Pranesh Kulkarni,<br /> S/o: Lakshman Rao Kulkarni,<br /> Age: 40 Year, Occ: Business,<br /> R/o; Gangavathi,<br /> Dist: Koppal.<br /> <br /> VERSUS<br /> <br /> II. Name of the Opposite Parties: - 1. Trade Name: 5 Paisa Com.India<br /> Infoline Securities Pvt.Ltd.,<br /> 24, Nirlon Complex,<br /> Off W.E. Highway,<br /> Goregaon (E),<br /> Mumbai.<br /> 2. Shivakumar, <br /> Office Incharge,<br /> 5 Paisa Com.India,<br /> Bus Stand Road,<br /> Gangavathi.<br /> <br /> Counsels:<br /> Complainant : Sri. Asif Ali, Advocate, Koppal<br /> Opposite Parties : 1&2: Sri. V.M.Bhusanoormath, Advocate, Koppal.<br /> <br /> ORDER<br /> <br /> <br /> This is a case filed by the complainant under section 12 of the Consumer Protection Act – 1986 alleging deficiency against the opponents and to direct them to pay sum of Rs.90,000/- as compensation for his mental agony and causing loss in share business in the interest of justice and equity.<br /> <br /> <br /> <br /> 2. Brief facts of case are that the 1st opposite party is running business in the name and style Infoline Securities Ltd., at Mumbai as Head Office. They have also having website namely 5 Paisa.Com and branch office at Gangavathi. The 2nd opponent is working under guidelines and directions of the 1st opponent approached the complainant and introduced business with a request to open account at their security service; considering request of the 2nd opponent the complainant opened an account with the 1st opponent with Client ID No.11176579 dated: 07-10-2006 by paying sum of Rs.5,000/- to the 2nd opponent. Thereafter the complainant came to know that the opponents have discriminated in taking money for opening such accounts, they used to charge only Rs.500/- for opening such accounts to other clients. On enquiry with the 2nd opponent for collecting heavy amount (Rs.5,000/-) from him (complainant), who returned Rs.3,000/- but failed to return remaining excess amount collected from this complainant. Thereafter the complainant intimated the opponents to close his said account with a request to refund remaining balance at his credit; inspite of intimation and correspondence the opponents failed to close the account. On the other hand he received SMS messages dated: 14-06-2007, 18-06-2007, 21-06-2007 and 27-06-2007 pertaining to share transaction at Bullion Market. As a last resolt on 22-06-2007 the complainant wrote a letter requesting both the opponents to close his account, for which the opponents have not responded so far, on account of this the complainant experienced sufferings mentally and physically, which amounts to deficiency in service on part of the opponents. With these and among other contentions the complainant has prayed to award compensation claimed in the complaint. <br /> <br /> 3. Upon service of summons both the opponents appeared through counsel and filed written version contending that the complainant with an intention to become a member to do stock trade business with the 1st opponent entered into agreement of Broking and Depository services, Combined Risk agreement, GPA etc., and signed said documents with his own accord after going through its contents and with proper understanding. At that time he voluntarily deposited sum of Rs.5,000/- by way of cheque to the opposite parties towards opening of his account. They denied charging of Rs.5,000/- for opening such accounts, they used to collect for opening of account at Rs.500/- and odd, but not Rs.5,000/- as alleged in the complaint. The opponents have denied rest of allegations made in the complaint as false and frivolous, hence the complaint is liable tobe dismissed with cost. They further contended that the 1st opponent is a Company and it is a reputed one in India; they are maintaining their accounts and dealings by hiring all qualified account officers. All transactions of customers including the complainant are getting scrutinized and checked by qualified and efficient executives. The complainant has also received confirmation letter, E-mail about transaction of accounts and did not object any faults on Accounts and confirmed the same without any protest, as such there is no deficiency in service on part of the opponents as alleged in the complaint. The claimed amount towards mental harassment is exorbitant one; he has not produced any documentary evidence on which date in which transaction he suffered loss, mental harassment. He has not proved mental sufferings by producing documentary evidence; cause of action does not arise at Koppal. As per terms and conditions of the agreement, the matter has tobe referred to Sole Arbitrator at Mumbai to get resolve such disputes, hence this Forum has no jurisdiction to entertain the complaint. With these and among other contentions the opponents have prayed for dismissal of the complaint with cost in the interest of justice and equity. <br /> <br /> 4. In order to prove allegations made in the complaint, the complainant Sri. Pranesh S/o: Laxmanrao Kulkarni, R/o: Gangavathi has filed his evidence on affidavit; same is treated as PW1. After filing the written version both the opponents remained absent, hence their side of evidence is treated as closed vide order sheet dated: 09-01-2008. This case was posted to hear final argument on 14-01-2008, then to 17-01-2008, 22-01-2008 and 28-01-2008, during these days neither the complainant nor the opponents appeared before the Forum, as such it was taken as ‘argument is not addressed’ and taken-up this case for disposal today.<br /> <br /> 5. On perusal of material placed by both sides, following points that arise for our consideration are;<br /> <br /> 1. Whether the complainant proves deficiency in service on part of the opponents for having neglected his request to close depository account with them?<br /> <br /> 2. Whether this Forum has jurisdiction to entertain the complaint?<br /> <br /> 3. Whether the complainant is entitled to relief sought for? <br /> <br /> <br /> Our findings to above points are as under;<br /> <br /> 1. Affirmative 2. Affirmative 3. As per final Order<br /> <br /> <br /> <br /> REASONS<br /> Point No. 1, 2 & 3: - <br /> <br /> 6. It is not material as to whether the 2nd opponent introduced the business by supplying broachers pertaining to activity of the 1st opponent to the complainant and induced him to become a member to do stock business with the opponent No.1 or vice-versa as contended at Para-3 of the complaint. It is apparent on face of record the 2nd opponent enrolled the complainant as customer of the 1st opponent to do stock trade business vide client ID No.11176579 dated; 07-10-2006. The complainant executed necessary agreement of Broking and Depository Services, Combined Risk Agreement, GPA in favour of the opponents authorizing them to do stock trade business on his behalf. The complainant has also produced Xerox copy of agreement and so also opponents have produced Xerox copy of said agreement, DP client agreement, GPA, statement of accounts, etc., in support of their defence. <br /> <br /> 7. On the other hand at Para-3 of the complaint, he has made some allegations against the opponent No.2 stating that the opponent No.2 collected sum of Rs.5,000/- from him for opening an account, which is exorbitant when compared with similar case of other customers. They usually collected Rs.500/- for opening account from other customers. In this regard there is no material on behalf of the complainant to consider these allegations and same does not weigh on his part to make such allegations against the opponents. As has already stated above the complainant while opening depository account with the opponents executed agreement, power of attorney and other documents authorizing them (opponents) to do stock trade business on his behalf, which bears his signature; the complainant has not disputed his signatures appearing on these documents produced by the opponents along with their written version; details of which are narrated at Para-6 of the written version. When this being so, terms and conditions incorporated in these documents are binding upon the complainant. A further perusal of DP client agreement go to show that the complainant has voluntarily deposited sum of Rs.5,000/- by way of cheque to the opponents while opening of his account, which was inclusive of charges for opening account. Moreover the complainant has not claimed balance credited at his account from the opponents, same cannot be considered at all.<br /> <br /> 8. Another contention of the complainant is that subsequently he intimated the opponents to close his depository account and to return remaining balance at his credit, for which the opponents have not properly responded. On the other hand, inspite of his intimation to close his account, the opponents have been sending SMS messages on (i) 14-06-2007, (ii) 18-06-2007, (iii) 21-06-2007 and (iv) 27-06-2007; in support of his contention the complainant has produced above said messages of the opponents reduced into writing, which has not been controverted by the opponents in their written version. That’s why the complainant wrote a letter dated: 20-07-2007 & 22-07-2007 with a request to the opponents to close his account. The opponents have also produced copy of said letter of the complainant dated: 20-07-2007, which is enclosed to their written version as Annexure-D; it is proper to quote some contents of said letter addressed to the 2nd opponent reads thus;<br /> <br /> <br /> “Sir,<br /> Ref: My letter dated: 22/6/2007<br /> (Client ID No.11176579)<br /> <br /> Please see my letter cited in reference. After receiving and going through the said letter you had told me through mobile phone on 27-6-07 that, within fifteen days amount would be sent to my address with an intimation of closure of my account. But after waiting up to the date i.e. 19-7-2007 I received nothing from you.<br /> <br /> Therefore, I would like to inform you that by the date 1-8-2007, if you fail to settle my account, I will approach the court of law.<br /> <br /> Thanking you,<br /> <br /> Yours’<br /> Sd/<br /> (PRANESH KULKARNI)<br /> SRI LAXMIKANAKACHALA KRUPA<br /> H.NO.1-5-60, 2nd STAGE<br /> JAYANAGAR, SIDDIKERE ROAD.<br /> <br /> 9. From this letter it is crystal clear that the complainant had no intention to become a member to do stock trade business with the 1st opponents, when this being so it is bounden duty of the opponents to close his account soon after receipt of said letter, instead of doing so they have continued his account by sending SMS as alleged at Para-4 of the complaint, which amounts to deficiency in service on part of the opponents.<br /> <br /> 10. Of-course as rightly contended by the opponents at Para-28 of their written version, share business is highly speculative in nature and is totally depending on the performance of company, which has issued the shares and is depending on bullion market; it is a fluctuating one and nobody can predict anything earlier. So it is not in hands of person to whom the authorization is given, so that he can predict the same. It is not defence of the opponents that the complainant is due to pay to it in respect of share trade business, if at all the complainant is due to pay to it the opponents do at liberty to recover same by invoking arbitration clause as stipulated in DP client agreement and etc., In our considered view inspite of receipt of several intimations including letter dated: 20-07-2007 from the complainant they have neglected to take action to close depository account of the complainant, which amounts to defiant service to the complainant by the opponents.<br /> <br /> 11. However, the opponents have contended in their written version that terms of agreement contain arbitration clause as such any dispute arise between the parties same shall be get resolved by appointing sole arbitrator at Mumbai jurisdiction only, hence this Forum has no jurisdiction to entertain the present complaint. To consider this type of defence absolutely there is no material on behalf of the opponents; so far the opponents have not invoked provision of Arbitration and Conciliation Act. On the other hand they have admitted at Para-18 of their written version that the 1st opponent is having branch office at Gangavathi, hence the present complaint is in accordance with Section – 11 of the C. P. Act. More particularly remedy provided in Section – 3 of the C. P. Act is in addition to provisions of any other law for the time being in-force. The provisions of the C.P. Act give the consumer an additional remedy besides those that may be available under other existing laws. In our considered view this Forum has jurisdiction to entertain the complaint. <br /> <br /> 12. As par as point No.3 is concerned the complainant has claimed Rs.90,000/- as compensation for mental harassment and loss, which is too exorbitant having no base to claim that amount for not closing his account forth-with. It is true the complainant has not furnished any documentary evidence for his physical sufferings and mental agony as contended in written version. It is not possible to prove any mental agony and physical sufferings by examining number of witnesses; infact the person, who actually experienced mental agony and physical sufferings by himself knows it. As has already stated above, inspite of written request by the complainant dated: 20-07-2007 the opponents neglected to close his depository account resulting which the complainant suffered mentally and physically with fear Fubia of unfore seen event, circumstances in facing share market. It is pertaining to note here, during pendency of this case the 2nd opponent has filed IA No.1 on 07-11-2007 u/o VI Rule 17 of C.P.C. to substitute proposed amendment after Para – 26 as 26 (a) to written version, details of which is narrated at IA No.1 itself, which came tobe allowed on 20-12-2007. On account of continuous absence of the opponents, they could not carry-out amendment to their written version as prayed in IA No.1. Even otherwise, they have contended in said proposed amendment that in response to notice of the complainant dated: 22-06-2007 they have stopped transaction; but there is no specific defence that they have closed the account of the complainant as sought for in his above said letter. Any how, on going through material placed by both sides, it is apparent on face of record that the opponents have neglected to close depository account of the complainant, as such it is just and proper to award consolidated compensation of Rs.5,000/- to the complainant for his physical sufferings and mental agony besides cost of the proceedings. Accordingly we answer point No.1, 2 & 3 in affirmative.<br /> <br /> In the result we pass the following; <br /> <br /> ORDER<br /> <br /> The complaint filed by the complainant under Section 12 of Consumer Protection Act – 1986 is partly allowed as follows;<br /> <br /> 1. The opponent No.1 & 2 are directed to pay the complainant sum of Rs.5,000/- (Rupees five thousand) only as compensation for mental agony within 45 days from date of receipt of copy of this order, failing which the complainant is entitled to get interest at 6% p.a. on above said amount from the date of complaint till payment of it. <br /> <br /> <br /> <br /> 2. The opponent No.1 & 2 are further directed to pay the complaint sum of Rs.1,000/- (Rupees one thousand) only towards cost of the proceedings.<br /> <br /> Dictated to the Stenographer, typescript, edited, corrected and then pronounced in the Open Forum on 07-02-2008. <br /> <br /> <br /> Sd/ Sd/ <br /> Member President<br /> <br /> <br /> <br />