BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Friday the 02nd day of July , 2010
C.C.No.179/08
Between:
B.Jaya Sree, W/o. A.Seshasayana,
H.No.87/976, Near Mamaji Dhaba, Nandyal Check Post, Kurnool-518 003. …Complainant
-Vs-
1. The Branch Manager, India Bulls Securities Limited,
Shop No.40-384-T, 10 and 11, U-con Plaza, Kurnool-518 002.
2. The Managing Director, India Bulls Securities Limited,
Regd. Office F-60, Malhotra Building, 2nd Floor, Connaught Place, New Delhi-110 001. …Opposite PartieS
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate, for complainant , and opposite party No. 1 called absent set ex-parte and Sri.A.Anil Kumar, Advocate for opposite party No. 2 and upon perusing the material papers on record, the Forum made the following
ORDER
(As per Sri.M.Krishna Reddy , Male Member)
C.C.No.179/08
1. This complaint is filed under section 11 & 12 of the C. P. Act, 1986 praying to direct the Ops
(a) to pay a sum of Rs.2,27,000/- towards the loss suffered by the complainant along with interest @ 24% p.a
(b) to pay a sum of Rs.50,000/- for causing mental agony and hardship ,
(c ) to pay the costs of this complaint ,
(d) to pass any other or reliefs which are deem to be fit and proper in the circumstances of the case.
2. It is the case of the complainant that complainant deposited an amount of Rs.2,60,000/- with OP.No.1 for earning her livelihood. In the month of July , 2006 complainant opened Demat A/c ID.No.KL-158 in OP.No.1 office with an initial deposit of Rs.1,000/- with the initiation of Mr.Jameer , an employee of OP.No.1. Thereafter the complainant deposited on various dates from 20-07-2006 to 14-09-2006 to a total of Rs.2,60,000/- . The complainant accepted that Rs.33,000/- was with drawn by him on 27-09-2006 . The complainant averred that Mr. Jameer was doing trading on her behalf and also was taking signatures on contact notes and acknowledgement . The complainant stated that Mr. Chandra Sekhar Reddy , ARM who came in place of Jameer was requested not to trade through F & O as it involves high risk . Inspite of the complainant’s request the OP.No.1 with out listening to complainant , continued trading even after November, 2006 transferred Rs. 2,27,000/- unauthorizedly , invested in F& O trading and made her to suffer loss .Therefore complainant filed a complaint in this forum seeking appropriate relief’s under different heads.
2. The complainant in proof of his case filed her sworn affidavit and got Ex.A1 to A13 marked.
3. In pursuance of the receipt of the notice of this forum OP.No.1 remained ex-parte and OP.No.2 made appearance through his counsel and contested the case filling written version denying his liability for the complainants claim.
4. In the written version of OP.No.2 submits that the complaint is barred by limitation as it was filed on 12th November , 2006 . OP.No.2 also says that complainant is not a consumer since the securities transaction is a speculative transaction for commercial gains. The OP further avers that this Hon’ble Forum has no jurisdiction to entertain the present complaint as the registered office of OP is situated at New Delhi . It is also stated that the alleged dispute involved in the complainant does not fall within the preview of C.P Act , 1986 and exclusively covered by SEBI Act, 1992 . And as per SEBI Act the complainant has to seek relief approaching authorities such as ombudsman , grievance cell and arbitration mechanism of exchange. OP says that complainant already has lodged a complaint with NSE which is pending adjudication and to harass him a fresh complaint is being filed in this Forum. OP avers that complainant is 28 years old graduate with 1.5 lakhs income p.a .After reading and understanding all terms and conditions complainant willingly executed member constituent agreement (MCA) and risk disclosure document (RDD) and was made aware of all the risks involved in share trading. OP submits that the complainant has withdrawn a sum of Rs.34 ,000/- from her trading account vide cheque No. 140833 and not Rs.33,000/- . It is denied that Mr. Chandra Sekhar Reddy ARM had traded in F& O segment with out her instructions since she was aware of F& O transactions and she never raised any objections since November , 2006 . Complainant also failed to show as to how she has arrived at Rs.2,27,000/- which complainant is claiming . OP further says that the contract notes was also made available on OP’s website for the convenience of the complainant . OP states that he is neither the seller nor buyer , the beneficiary of the transacted shares is the complainant and OP gets a little amount of brokerage. Hence the claim made by the complainant is unsustainable both in law as well as on facts and prayed for the dismissal of the case.
5. In support of the case the OP filed sworn affidavit and a document is marked as Ex.B1.
6. Now on the basis of the above pleadings the points for consideration are
(i) whether the complainant made out any deficiency on the part of the OP ?
(ii) Whether the complainant is entitled for compensation from Ops as prayed ?
(iii) What is the quantum of compensation that can be awarded to him.
7.Points 1 & 2: The complainant opened Dmat A/c with I.D.No.KL 158 with OP as per Ex.B1 . He deposited a total sum of Rs.2,60,000/- on various dates from 20-07-2006 to 14-09-2006 as detailed in Ex.A1 to A3 and had withdrawn Rs.33,000/- on 27-09-2006 . As long as Mr. Jameer an employee of OP.No.1 was doing F & O trading her signatures were taken on contact notes (CN) and acknowledgements (ack) for each trading of her. The same are Ex.A5 to A10 . Mr. Chandra Sekhar Reddy who came in the place of Jameer discontinued the practice of taking signatures on CN and ack, ignoring the previous practice and transferred her funds and invested in trading without authorization. The OP did not file any document or devise to prove that the trading was done with the complainants authorization. OP not even altered the complainant to watch the trading on OP’s website.
The period of limitation is two years to file complaint. The complainant submitted the complaint to this forum on 27-10-2008 and hence the transactions from 27-10-2006 within time.
The OP.No.1 where trading was done on behalf of the complainant is a branch of OP.No.2 and is located with in the jurisdiction of this forum . The arbitration clause in an agreement is not a bar to entertain the complaint by the forum , since the remedy provided under the Act is in addition to the provisions of any other law. Citations filed I (2008) CPJ 341 (NC) , (2006) NCJ (NC) 349, II (2006) CPJ 194 (Goa) support the above contentions.
In view of what is stated above the forum hold that the complainant has established deficiency in service on the part of OP and entitling him to receive the relief under different heads as claimed by him.
8 Point No.3: The claim of Rs.2,27,000/- is not acceptable because the complainant failed to show in detail as to how it was arrived. As per Ex.A11 the balance on 30-10-2006 in the complainants A/c was Rs.29,967.99 and as per Ex.A12 Rs.4,682.65 was paid to the complainant on 29-03-2007 vide cheque No.204465 . Hence he is entitled for (Rs.29,967.99 – 4682.65) Rs.25,285.34.
9. In the result the complaint is allowed directing the OP to pay Rs.25,285.34 compensation to the loss suffered , Rs.2,000/- for mental agony and Rs.1,000/- towards the cost of the case payable within 45 days from the date of this order.
Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 02nd day of July, 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Photo Copy of Statement of Indus Ind Bank, Kurnool
dt.30-09-2006.
Ex.A2. Photo Copy of Statement of AXIS Bank Ltd, Kurnool
dt.30-09-2006..
Ex.A3. Photo Copy of Counter foil of Andhra Bank, Pay Order for Rs.45,000/- dt.31-08-2006(No in 28 Papers).
Ex.A4. Letter of National Stock Exchange of India Ltd, Chennai, dt.03-11-2008.
Ex.A5. Acknowledgement of transaction dt.07-08-2006 along with the particulars of transaction.
Ex.A6. Acknowledgement of transaction dt.08-08-2006 along with the particulars of transaction.
Ex.A7. Acknowledgement of transaction.
Ex.A8. Acknowledgement of transaction dt.09-08-2006 along with the particulars of transaction.
Ex.A9. Acknowledgement of transaction dt.10-08-2006 along with the particulars of transaction.
Ex.A10. Acknowledgement of transaction dt.11-08-2006 along with the particulars of transaction.
Ex.A11. Clint ledger statement of Complainant CKL 158 maintained by the OP (NO in 18papers).
Ex.A12. Letter dt.29-08-2008 addressed by the OP to the Arbitrator, Chennai
Ex.A13. Statement of Account of Complainant issued by Axis Bank Ltd,Kurnool dt.04-06-2010.
List of exhibits marked for the opposite parties:
Ex.B1. Registration Account Opening (No in 20 Papers) of
Jaya Sree
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on:
