State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. CC/08/32

DATE OF FILING: 11.6.2008

DATE OF FINAL ORDER: 21.05.2009
COMPLAINANT


Mr. Raghunath Biswas

94, A.C. Road (East)

P.O. – Khagra, P.S. – Berhampore Town

Dist. – Murshidabad

Berhampore – 742 103



OPPOSITE PARTY



VCK Share & Stock Broking Services Ltd.

Having its registered office at

16, India Exchange Place, 1st floor

Kolkata – 700 001



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

MEMBER : MRS. S. MAJUMDER

FOR THE COMPLAINANT : Mr. Deb Kr. Sen, Advocate

FOR THE OPPOSITE PARTY : Mr. Barun Prasad, Advocate





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT



The complainant filed this complaint stating interalia that complainant is an ordinary retired person and the OP, a share broker, induced the complainant through representatives to open a trading account with the OP. The complainant opened a trading account. From the statement issued by the OP the complainant found that he traded in NIFTI shares between 13.12.07 and 08.01.08 and as a result of trading in shares, the complainant incurred loss whereon Rs.2,70,000.00 was debited from his account. The complainant did not sign a single contract note said to have been executed allegedly relating to transfer of said shares. As no relief was available to the complainant inspite of communication to the OP, the present complaint was filed asking for refund of Rs.2,30,000/-, compensation of Rs.22 lacs, interest and cost. The OP filed its written version. Complainant filed his evidence on affidavit to which questionnaire and reply were filed and the OP also filed its evidence on affidavit to which questionnaire and reply were filed. After brief notes of argument were filed the matter was taken up for hearing.

Heard Mr. Deb Kr. Sen, the Ld. Advocate for the Complainant and Mr. Barun Prasad, the Ld. Advocate for the OP.

The first contention which falls for our consideration is as to whether the complainant is a consumer entitled to approach a Forum under the Consumer Protection Act in view of the nature of transactions undertaken by him amounting commercial transactions and whether even if it was a commercial transactions it was for earning livelihood of the complainant by his self employment.

From the facts available it is found that in course of the said transaction between the complainant and the OP, complainant used to purchase shares which were again to be sold and both these buying and selling were through the OP broker under the instructions of the complainant. Therefore, it is not a fact that the complainant obtained some service from the OP which was not directly related to the trading done by the complainant. So it is apparently a commercial transaction.

On behalf of the complainant it is argued that the said transaction was for earning livelihood of the complainant by his self employment. In this respect while going through the pleading and the evidence we do not find any such statement by the complainant. The only statement made by the complainant is that he is an ordinary retired person and never had any education or prior experience of trading in shares. It is neither pleaded nor stated on evidence that the said transaction was for earning livelihood by the complainant or it amounted to his self employment.

In such circumstances we are of the opinion that it is conclusively shown that the transaction was for commercial purpose and it was not for earning livelihood and, therefore, the complainant is not entitled to be treated as a consumer and thus not entitled to maintain an application before the Forum/Commission under the Consumer Protection Act.

Further contention was made by the complainant that transactions were made without his instructions as the Contract Notes supplied to him were not signed by him and copies of some of such Contract Notes have been annexed to the complaint by the complainant. The OP’s Ld. Advocate has shown that some of the Contract Notes relied on by the complainant, were actually signed as appears from the Annexure to the written objection filed by the OP. Further contention of the parties were relating to the nature of the transactions between the complainant and the OP. But in view of the fact that we have held that the complainant is not a consumer and so the complaint itself was not maintainable, other questions raised do not require decisions in the present proceeding.

On behalf of the complainant the case of Regional Provident Fund Commissioner-Vs-Shiv Kumar Joshi 2000(1) SCC 98 was cited to distinguish definition of ‘Consumer’ from definition of ‘Service’. But this question does not require decision in the present facts. In the case of Standard Chartered Bank Ltd.-Vs-Dr. B.N. Barman (2006)5 SCC 727 the relation between Bank and its Account holders has been discussed. But in the present case the transaction being with a broker and not a banker this case also does not apply.

Accordingly, the complaint fails and is hereby dismissed on contest without costs.







(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti)

MEMBER(L) MEMBER PRESIDENT