State Consumer Disputes Redressal Commission
Sri Gouranga Das vs Mr. Ashoke Kumar Bhattacharjee on 8 February, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/757/2013 (Arisen out of Order Dated 07/06/2013 in Case No. Complaint Case No. CC/139/2013 of District Kolkata-II(Central)) 1. Sri Gouranga Das S/o Late Narayan Chandra Das, 64, Subhas Sarani, P.S. Bansdroni, Kolkata - 700 070. ...........Appellant(s) Versus 1. Mr. Ashoke Kumar Bhattacharjee 79B, Ramkanto Bose Street, P.S. Shyampukur, Kolkata - 700 003. 2. Passion Commodities (Pvt.) Ltd. 14/79, Civil Lines, Kanpur - 208 001. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Sunil Sen, Advocate For the Respondent: In-Person/, Advocate ORDER
FA-757/2013 Date of Hearing : 29.01.2016 Date of Judgment : 08.02.2016 Judgment The instant appeal is directed against the order being No. 4 dated 07.6.2013 passed by the Ld. District Consumer Disputes Redressal Forum Kolkata, Unit-II in Complaint Case being No. CC-137/2013 not admitting the same being not maintainable holding that the matter of dispute was commercial in nature since commercial transactions involved in it.
Being aggrieved by and dissatisfied with the said order the complainant has preferred the instant appeal on the grounds, inter alia, that Ld. District Forum erred in arriving at a decision not considering the fact that the complainant being an independent depositor in respect of purchasing shares hired service of the Respondent No.1.
The case of the complainant, in brief, is the act he being attracted to an advertisement published in a daily newspaper made contact to the O.P. No. 1 (Respondent No. 1 herein) in April, 2011 who introduced himself as an agent of O.P. No. 2 (Respondent No. 2 herein) and assured the appellant for earning 40% to 50% profit per year by investment on the commodities such as gold, silver and potato under share schemes of the O.P. No. 2 on the commodities. Having impressed with the assurance by the O.P. No. 1 the complainant opted for a package of Rs. 34,000/- and paid the said amount towards investment to the O.P. No. 2 by cheque in favour of O.P. No. 2 drawn on State Bank of India, Batanagar Br., Kolkata -700140 vide Cheque No. 521614 dated 06.5.2011 for investment in such a manner that i) Investment in gold commodity share - Rs.12,000/-, ii) Investment in Silver commodity share - Rs. 12,000/-, iii) Investment in potato commodity share - Rs. 10,000/-. The complainant has further stated in May 2011, the complainant invested the said amount and subsequently found that in September 2011 the market price of said commodities were considerably high and considering the situation of the share market expected a good return and asked the O.P. No. 1 for return on his investment. In reply, the O.P. No. 1 informed that share value of gold and silver has been decreased. The complainant has further stated that the O.P. No. 1 refunded a sum of Rs.20,000/- out of Rs. 34,000/- by seven instalments from 15.9.2011 to 08.6.2012 and the balance amount of Rs. 14,000/- has not been refunded by him so far for which the complainant requested him on several occasions even served demand notice dated 17.9.2012 demanding the said amount with interests @ 18% p.a., but all these attempts yielded no fruitful result. Accordingly, the complainant prayed before the Ld. District Forum direction upon to the O.Ps. to pray Rs. 14,000/- along with interests @ 18% p.a. to pay compensation for causing damage to the complainant and to pay the costs of litigation.
In course of hearing of the appeal, Ld. Advocate for the appellant has submitted that the complainant hired the service of the respondents and thus became a consumer under the respondents. Ld. Advocate for the appellant has further submitted that since the appellant invested the amount in share market for earning his livelihood the transaction may not be considered as commercial in nature. In support of his contention, Ld. Advocate for the appellant has cited the decision of this Commission reported in (2014) 2 WBLR (CPJ) 967 (M/S Bhagwandas Vypar Udyog Ltd., -Vs- The New India Assurance Co., Ltd., & Others.). The Respondent No. 1 was present in person and submitted that Ld. District Forum has rightly passed the impugned order. The Respondent No. 1 in person further submitted that as per Share Market situation he had done the share business and incurred loss and accordingly refunded the amount as per the market value of the purchased share to the complainant.
Having heard submissions made by both sides and on perusal on record it appears that admittedly the appellant invested a sum of Rs. 34,000/- in Share Market. Now, the moot point to be decided preliminary whether investment in Share Market comes within the 'commercial purpose'. Section 2(1)(d) of the Consumer Protection Act runs as follows -
'Consumer' means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any uses of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation - For the purposes of this clause, 'commercial purpose' does not include use by a person or goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self- employment.' It is evident from the averment of the complainant - appellant that he invested the money in Share Market. The investment in Share Market directly involved with the consent of resale and in any case of resale of any goods or service in nature of 'as is where is' basis will not be covered under the provision of Section 2 (1)(d) of the Consumer Protection Act. The decision cited by the Ld. Advocate is of different context and even two cases referred in the said decision i.e., (1) Harsalia Motors -vs- National Insurance Company Limited (2005)1 CPJ 27 (NC) (2) National Insurance Company Limited -Vs- Nitin Khandelwal (2008)7 SBR 63 do not support the contention of the Ld. Advocate for the appellant. In Harsalia Motors case (supra) the Hon'ble National Commission held that if goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act. Further, it is apparent from the aforesaid decision that even taking on wide meaning of the words for any commercial purposes it would mean that good purchases or services higher should be used in any activity directly intended to generate profit. In the instant case, the complainant invested his amount for directly to generate profit there from. Further, in National Insurance Company Limited's case (supra) the nature of use of vehicle which was insured under the National Insurance Company Limited was not looked into but, however, the vehicle was not used for direct resale. Hence it is also distinguishable in the facts and circumstances of the instant case.
In such view of the matter, we find there is no infirmity in the impugned order.
In the result, the appeal does not succeed.
Hence ordered that the appal is dismissed on contest without any order as to costs.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER