State Consumer Disputes Redressal Commission
George X Kavalachira vs The Managing Director, M/S Lkp ... on 20 December, 2018
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM CC.NO.14/14 JUDGMENT DATED : 20.12.2018 PRESENT HON'BLE JUSTICE SRI.S.S. SATHEESACHANDRAN : PRESIDENT SRI.T.S.P. MOOSATH : JUDICIAL MEMBER SRI.RANJIT. R : MEMBER COMPLAINANT George X Kavalachira, SB 3B Heera Waters, 'Bound Road', Chilavanoor, Kadavanthara, Kochi, Kerala - 682 020 (By Adv.Smt.Sheeba Jaffer Sait & Adv.Sri.N.G.Mahesh) VS OPPOSITE PARTIES The Managing Director, M/s. LKP Securities Ltd, 203, Embassy Centre, Nariman Point, Mumbai - 400 021 Albert Insteen.M.X Maliakkal House, Jobs cottage, Perumpadappu, Kochi, 682020 (OP1 by Adv.Sri.James Abraham) (OP2 by Adv.Sri.Millu Dandapani) JUDGMENT
SRI.T.S.P.MOOSATH :JUDICIAL MEMBER The complainant has filed the complaint claiming Rs 30,00,000/- being the value of the shares of the complainant, alleged to have been unauthorizedly transacted by the opposite parties, Rs 15,00,000/- as compensation and Rs 5,00,000/- towards cost of the proceedings, from the opposite parties.
2. The first opposite party is a limited company engaged in the business of stock and share transactions and a member of the National Stock Exchange Ltd and Bombay Stock Exchange Ltd. The second opposite party is the franchise of the first opposite party and is having its office address at Kochi. According to the complainant on 28.04.2012 shares worth more than Rs 30,00,000/- were transferred to the account of the second opposite party from the complainant's bank account in ICICI, bank. The opposite parties sold the shares belonging to the complainant without his consent and knowledge and thereby caused heavy loss to the complainant. The complainant had filed a criminal case against the opposite parties before the Additional Chief Magistrate Court, Ernakulam, which was forwarded to the police under 156 (3) CRPC and the Ernakulam City Police has registered the Crime No.159/2012 against the opposite parties. It is alleged by the complainant that the conduct of the opposite parties selling the shares of the complainant without his consent, amounts to deficiency in service. Hence the complaint.
3. On 31.08.2014 this court passed the judgment by which the complaint was partly allowed. Opposite parties were then exparte. The first opposite party challenged the judgment before the National Consumer Disputes Redressal Commission. By order dated 11.07.2015, the National Commission set aside the order of this Commission and the matter was remanded for further proceedings and fresh disposal.
4. Opposite parties 1 & 2 filed separate version raising more or less same contentions. It is contended by the opposite parties that complainant would not come under the definition of "consumer" as stated in section 2(1) (d) of the Consumer Protection Act and so, for that reason, the complaint is not maintainable. The Act itself excludes persons who availed service for commercial purpose from the definition of the consumer. So the complaint is to be dismissed.
5. Since both opposite parties raised the question of maintainability of the complaint, it was considered as a preliminary point, before proceeding further with the complaint.
6. Heard both sides. Perused the records.
The point to be considered is: whether the complaint is maintainable?
Point No.1
7. The main allegation of the complainant is that the opposite parties unauthorizedlytransfered his shares worth Rs 30,00,000/- and the prayer of the complainant is for refund of that amount with compensation and cost. In the complaint it is stated that first opposite party is a limited company engaged in the business of stocks and share transactions and a Member of the National Stock Exchange Limited and Mumbai Stock Exchange Limited,and,second opposite party is a franchise of the first opposite party. It is stated that the opposite parties are rendering service to the public receiving their remuneration. It is the case of the complainant that he has invested the amounts with the opposite parties for shares. It is contended by the opposite parties that share trading is a commercial activity and the service availed isfor commercial purpose. So the complainant is not a consumer as defined under section 2(1) (d) of the Consumer Protection Act. The definition of consumer as given under section 2(1) (d) of the Consumer Protection Act,excludes a person who avails service for commercial purpose.
8. The definition of 'consumer,' as given under section 2(1) (d) of the Act excludes the persons who obtain goods for resale or for any commercial purpose or hires or avail services for any commercial purpose. As per the explanation to section 2 (1) (d) '(commercial purpose)' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning as his livelihood by means of self employment. In MC Rana VsVijayakumar (2012) (3 CPR 164) it was held that definition of consumer as given under section 2(1) (d) excludes the person who avails of such service for any commercial purpose. Share trading is a commercial activity and service availed for that purpose could be considered as availed for commercial purpose. In V.K.Agarwal Vs Infosys Technologies Limited and others (2013 CPJ 373) (NC) the National Commission has held that sale and purchase of shares are commercial transaction and therefore the complaint is not a consumer. In the light of the dictums laid down in the above cited decisions, the complainant does not come under the definition of 'consumer' as stated in Section (2) (1) (d) of the Consumer Protection Act, and, hence, the complaint filed by him is not maintainable. The complaint is liable to be dismissed.
The point found accordingly.
In the result, the complaint is dismissed.
The parties are directed to suffer their respective costs.
Refund the amount deposited by the first opposite party as per the direction of the National Commission, on filing of proper application by him.
JUSTICE S.S. SATHEESACHANDRAN : PRESIDENT
T.S.P. MOOSATH : JUDICIAL MEMBER
RANJIT.R : MEMBER
Be/
KERALA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
SISUVIHARLANE
VAZHUTHACADU
THIRUVANANTHAPURAM
CC.NO.14/14
JUDGMENT DATED : 20.12.2018