State Consumer Disputes Redressal Commission
Meenu Jindal vs Uti Investor Services Ltd. on 1 December, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1277 of 2014
Date of institution : 17.09.2014
Date of decision : 01.12.2015
1. Meenu Jindal wife of Satish Kumar;
2. Payal Jindal daughter of Meenu Jindal and Satish Jindal;
Both C/o Om Parkash Jindal, near Indane Gas Agency,
Hospital Road, Jaito, District Faridkot, at present residents of
House No.79, North Estate, Bathinda, Tehsil and District
Bathinda.
....Appellants/Complainants
Versus
1. UTI Investor Services Limited, Upper Ground Floor,
Kanchenjunga Building, 18 Barakhamba Road, New Delhi,
through its Managing Director/Authorized Signatory.
2. Unit Trust of India (Northern Zonal Office), Jeevan Bharati,
13th Floor, Tower-II, 124, Connaught Circus, New Delhi,
through its Zonal Manager/Authorized Signatory.
3. Roshan Lal (Pabby), Agent/Adviser of UTI Investor Services
Limited, Jaito, Tehsil Jaito, District Faridkot.
....Respondents/Opposite Parties
First Appeal against the order dated
16.07.2014 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellants : Shri Ravish Bansal, Advocate For respondent Nos.1-2 : Shri B.J. Singh, Advocate For respondent No.3 : Ex parte.First Appeal No.1277 of 2014 2
JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/complainants have preferred this appeal against the order dated 16.07.2014 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "District Forum"), vide which the complaint filed by them, under Section 12 of the Consumer Protection Act, 1986, for directing the respondents/ opposite parties to pay the balance amount of Rs.76,270/-, along with interest at the rate of 12% per annum; Rs.80,000/-, as compensation on account of mental tension, harassment, botheration, agony, humiliation and financial loss suffered by them; and Rs.11,000/-, as cost of litigation, was dismissed.
2. The complainants alleged, in their complaint, that opposite party Nos. 1 & 2 launched one Scheme, known as "Children's Gift Growth Fund Unit Scheme, 1986" (in short, "the Scheme"); which was meant for children and the same was advertized by them, by publishing pamphlets and through their agents. As per that Scheme, if any customer invested Rs.7,000/- at the age of 0 year of his child, then the maturity amount at the age of 21 years was to be Rs.1,09,673/-. The maturity value was to be different at different ages. The units were to be issued by opposite party Nos. 1 & 2, as per the amount to be invested and every unit was of Rs.10/-. Opposite party No.3, being the agent/advisor of opposite party Nos. 1 & 2, approached Meenu Jindal, complainant No.1, and gave her allurement. As a result of that allurement, she purchased 700 units of Rs.10/-, each, for her First Appeal No.1277 of 2014 3 newly born daughter; namely Payal Jindal, complainant No.2, in the year 1994; regarding which the certificate was duly issued. These units matured on 27.06.2013, when complainant No.2 attained the age of 21 years and, as such, the opposite parties are liable to pay Rs.1,09,673/-. The opposite parties had been continuously sending the Account Statements/Annual Growth Charts from 1995-1996 to 2001-2002, but thereafter they stopped sending those Account Statements. In the month of July, 2012, complainant No.1 received two cheques of Rs.25,120/- and Rs.8,283/- dated 11.07.2012, drawn on Axis Bank Limited, from the opposite parties in the name of complainant No.2. She immediately contacted opposite party No.3 and inquired about the same and it was conveyed to her that those cheques had been issued as lump sum amount against the amount invested in the Scheme. When they (complainants) contacted opposite party Nos. 1 & 2 telephonically, the same facts were conveyed to them. They made the request for the payment of the maturity amount of Rs.1,09,673/-, as promised, vide their advisement, but no heed was paid to their request. They also served legal notice upon the opposite parties, through their counsel, but the balance amount of Rs.76,270/- was not paid to them. The act of the opposite parties, in not paying that balance amount, amounts to deficiency in service and adoption of unfair trade practice; as a result of which they suffered great mental tension, agony, harassment, botheration, humiliation and financial loss.
First Appeal No.1277 of 2014 4
3. Opposite party Nos.1 & 2 did not appear before the District Forum, in-spite of their service and were proceeded against ex parte. Opposite party No.3 appeared before it and filed the written reply. In the written reply, he admitted that the Scheme was launched by opposite party Nos. 1 & 2, which was duly advertised through published pamphlets. He also admitted that complainant No.1 purchased 700 units of Rs.10/-, each, in the name of complainant No.2 in that Scheme. While denying the other allegations made in the complaint, he averred that the units, so issued to the complainants, were subject to the market risk and at the time of the signing of the form, he explained all the terms and conditions to complainant No.1 and she had put her signature, after agreeing to those terms and conditions. The complainants never contacted or approached him and no deficiency in service has been alleged against him. Therefore, the complaint is not maintainable against him. The complainants have neither any cause of action, nor any locus standi to file the complaint. He prayed for the dismissal thereof, with special compensatory costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellants/ complainants and respondent Nos.1 & 2, as respondent No.3/ opposite party No.3 did not appear before this Commission, in-spite First Appeal No.1277 of 2014 5 of his service and was proceeded against ex parte. We have also carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the complainants that as per the pamphlet issued by the opposite parties and proved on the record as Ex.C-4, an assured amount of Rs.1,09,673/- was to be paid as the maturity amount on the attainment of the age of 21 years by complainant No.2. It cannot be held from the contents of that pamphlet that there was any speculative investment made by complainant No.1, by purchasing units in the name of complainant No.2. In these circumstances, the District Forum was not competent to invoke the ratio of the judgment of the Hon'ble National Commission, reported in 2013 (III) C.P.J. 203 (Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd. & Anr.). It should have decided the complaint on merits. That itself is a ground for allowing the appeal and remanding back the complaint to the District Forum for deciding the same afresh on merits.
7. On the other hand, it has been submitted by the learned counsel for opposite party Nos. 1 & 2 that these opposite parties were proceeded against ex parte by the District Forum and had no opportunity to present their case before it. The application (M.A. No.1620 of 2015) filed by these opposite parties was allowed, vide order dated 29.09.2015, and they were permitted to place on record the documents pertaining to the Scheme. It is very much clear from those documents, which includes the Notification dated 03.04.1986, vide which this Scheme was issued. The money, with First Appeal No.1277 of 2014 6 the help of which the units were to be purchased under the Scheme, was to be invested in securities and otherwise and the dividends/bonus etc. was to be paid, as per the profits made by virtue of that investment. It was a speculative Scheme. There was no such assurance given in the Notification that after the maturity, a definite amount was payable. In fact, the amount payable to the unit holders after every year was to be calculated and the statements thereof was to be sent to them and the same was being done. As per Clause 33 of the Notification, the Scheme was foreclosed and notice was duly published in the newspaper, before foreclosing that Scheme. The complainants were entitled to the amount, as per that notice. It was correctly held by the District Forum that the amount was invested by the complainants in speculative business and, as such, the complaint was not maintainable before it. There is no ground for upsetting that well reasoned order.
8. In Ram Lal Aggarwalla's case (supra), the Insurance Policy had been taken for investment of the premium amount in the Share Market; which was speculative gain. It was held by the Hon'ble National Commission that such like complainant does not fall within the purview of the "consumer" and the complaint was not maintainable under the Consumer Protection Act. It becomes very much clear from that judgment that if the amount under any Scheme is to be invested in the Share Market, which involves an element of speculation, then the person purchasing units under such a Scheme does not fall within the definition of the "consumer" First Appeal No.1277 of 2014 7 and the complaint filed by him does not come within the purview of the said Act. The question to be decided is, whether the amount, for which the units were purchased by complainant No.1 in the name of complainant No.2, was to be invested in some speculative business? Counsel for the complainant has tried to assert that by virtue of the pamphlet, proved on the record as Ex.C-4, minimum amount was assured; which was payable to complainant No.2 after she attained the age of 21 years and, as such, it cannot be said to be a speculative investment, attracting the ratio of Ram Lal Aggarwalla's case (supra). It is very much clear from the title of that pamphlet itself that it was issued by the agent of opposite party Nos.1 & 2. Whether opposite party Nos.1 & 2 are bound by the assurance, as given in the pamphlet?
9. Notification No.UT/392/DPD(P&R)3B/Vol.I/85-86 dated 03.04.1986 was published in the Gazette of India on 19.04.1986, vide which the Scheme was published. It becomes very much clear from that Notification itself that the amount collected for the purchase of units under that Scheme was to be invested in the Stock Market. The relevant Clause, which deals with the "Valuation of Assets pertaining to this Scheme", is reproduced below:-
"13. Valuation of assets pertaining to this Scheme"
(1) For the purchases of valuation of the assets under sub-clauses (b) & (c) of Clause (11), the assets shall be classified into (A) Cash (B) Investments and (C) other assets.
First Appeal No.1277 of 2014 8(2) Investments shall be valued by taking:-
I.(a) the closing prices on the stock exchange as on the working day preceding the day on which the valuation was made on the securities held by the Trust pertaining to the Scheme:
Provided where a security is quoted on more than one stock exchange the manner of determining the price of such security shall be decided by the Trust:
(b) Where any investment was not during the relevant period, dealt in, or quoted on any recognized stock exchange, such value as the Trust may, in the circumstances, consider to be the fair value of each investment; and II. adding thereto---
(a) In the case of interest earning deposits Dividend accrued but not taken credit for;
(b) In the case of Government Securities and the Debentures interest accrued but not taken credit for; and
(c) In the case of Preference Shares and Equity Shares quoted Ex-Dividend, any dividend declared, but not received.
(3) Other assets shall be valued at their book value."
No such minimum sum, as the maturity amount, was assured by that Notification and if some agent of opposite party Nos.1 & 2 issued the pamphlet, Ex.C-4, these opposite parties are not bound First Appeal No.1277 of 2014 9 by the same. The principal is never bound by the unauthorized act done by the agent, unless the same falls within the implied authority. No such evidence was produced by the complainants for proving that there was such an implied authority with the agent. Any pamphlet, which has been issued against the Scheme as published in the Notification, cannot bind opposite party Nos.1 & 2. The relationship between the complainants and opposite party Nos. 1 & 2 was to be regulated by the terms and conditions, as incorporated in the Unit Certificates, so issued in respect of the amount so invested by complainant No.1. The Unit Certificates were proved on the record as Ex.C-11 to Ex.C-15. There is no such term or condition mentioned in these Unit Certificates that a minimum amount of Rs.1,09,673/- was to be payable after the maturity. The statements, in respect of the units so purchased by complainant No.1, were being issued to her every year and those were proved by her on the record as Ex.C-16 to Ex.C-19. It is very much clear from those statements that the value of the units was increasing/decreasing every year; which was possible only in case of speculative investment. The Scheme, under which the units were purchased by complainant No.1, was a speculative investment and, as such, the complainants do not fall under the definition of the "consumer" and the complaint filed by them was not within the purview of the Consumer Protection Act, 1986. Correct findings to that effect were recorded by the District Forum and we do not find any ground to disagree with those findings. The appeal is dismissed accordingly.
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10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER December 01, 2015.
(Gurmeet S)