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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Vaman Nagesh Upaskar and Anr. —Petitioners
versus
India Infoline Ltd. and Ors. —Respondents
Revision Petition No.2873 of 2014
(Against the Order dated 07/04/2014 in Appeal No.12/2014 of the State Commission Goa)
Decided on 28.10.2020
Counsel for the Parties:
For the Petitioners:Ms. Astha Tyagi, Advocate
For the Respondent No.1:Mr. Ajit Rajput, Advocate
IMPORTANT POINT
Compensation allowed for causing loss by unauthorized trading in Demat account of complainant.
Headnote:
Consumer Protection Act, 1986—Sections 21(b) and 2(1)(d) : [Consumer Protection Act, 2019—Section 58 and 2(7)]—DEMAT Account—Unauthorized trading—Loss caused—Claim for—Complainant-appellant opened Demat Account with the respondent No.1—Allegedly, respondent no.3, an employee of respondent no.1 carried out unauthorized trading of shares in his demat account with at his consent and caused heavy loss to him—A loss of Rs. 1,72,020/- caused to complainant—District Forum allowed the complaint—However, state commission allowed the appeal on the ground that complainants were not consumers within the meaning of Act of 1986—Hence this revision petition—No evidence or even allegation of complainants carrying out large scale trading in stocks and shares—Such a person cannot be said to be in the business of buying and selling shares on a regular basis—Thus, complainants were consumers within the meaning of Act of 1986—Also there is no endue of shares mentioned in complaint having been sold on the instructions of complainants—Respondent No.3 having caused loss to complainant by unauthorized trading in his Demat account, he is responsible to compensate the complainant for the loss suffered by them—Respondent No.1 also liable to compensate—Therefore, respondent no.1 and 3 directed to pay Rs. 1,92,020/- to complaint along with interest @ 9% p.a. (Paras 6 to 9)
Result: Petition disposed of.
ORDER (ORAL)
V.K. Jain, Presiding Member.—The complainant / appellant opened Demat Account with respondent No.1 in India Infoline Ltd. The case of the complainant in nutshell is that respondent No.3 - Siddesh A. Prabhudesai, an employee of respondent No.1 carried out unauthorized trading of shares in his Demat Account without his consent and caused heavy losses to him. This was brought by the complainant to the notice of respondent Nos.1 & 2 but, they did not address his complaint. This is also his case that by 20.10.2009, a loss of Rs.55,000/- had been caused to him. Therefore, he tried to close the account but was not allowed to do so and further trading was carried out by respondent No.3 from his Demat Account without his consent, causing him a loss of Rs.1,72,020/-. The loss happened on account of the shares mentioned in para 11 of the complaint having been sold without instructions from him. The complainants, therefore, approached concerned the District Forum by way of a consumer complaint seeking the above-referred amount of Rs.1,72,020/- with compensation, etc.
2. Respondent Nos.2 & 3 did not contest the consumer complaint. Respondent no.1 however, filed the written version contesting the complaint and inter-alia stated in its written version that the complainant had entered into a mutual agreement with respondent No.3 allowing him to trade into his account and on coming to know of this, respondent no.1 terminated the services of respondent Nos.2 & 3.
3. The District Forum having allowed the consumer complaint, respondent No.1 approached the concerned State Commission by way of an appeal. Vide impugned order dated 7.4.2014, the State Commission allowed the appeal and dismissed the complaint solely on the ground that the complainants were not consumers within the meaning of the Consumer Protection Act.
4. I have carefully perused the written version filed by respondent No.1. Nowhere it has been pleaded in the written version that the complainants were not consumers.
5. The question who can be said to be a consumer recently came up for consideration of a Three-Members Bench of this Commission recently in CC No. 349 of 2017 - Springdale Core Consultants Pvt. Ltd. Vs. Pioneer Urban Land and Infrastructure Ltd. dated 16.03.2020 and the following view was taken:-
6. In a recent decision Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers & Ors. IV (2019) CPJ 65 (SC), the appellant before the Hon’ble Supreme Court, which was a Trust, purchased 29 flats in two residential buildings, for providing hostel facilities to the nurses employed in Lilavati Hospital being run by the said Trust. The structure of the flats allegedly became dilapidated because of poor building quality and the appellant therefore had to vacate the flats. A consumer complaint was then filed by the Trust before this Commission seeking compensation etc. from the builder. The complaint was dismissed by this Commission, holding that the Trust was not a consumer within the meaning of Section 2(1(d) of the Consumer Protection Action, which excludes a person who obtains goods and services for a commercial purpose. It was held by this Commission that providing hostel facilities to the nurses was directly connected to the commercial purposes of running the Hospital and was consideration for the work done by them in the hospital. Being aggrieved, the Trust approached the Hon’ble Supreme Court by way of an Appeal.
7. Having considered its several other decisions such as Laxmi Engineering Works Vs. P.S. G. Industrial Institute, II (1995) CPJ I (SC), Cheema Engineering Services V. Rajan Singh VI (1998) SLT 20, Kalpavruksha Chairtable Trust V. Toshniwal Brothers (Bombay) Pvt. Ltd., III (1999) CPJ 26 (SC) Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Company Ltd. (1991) 1 CPJ 499, and Paramount Digital Colour Lab. Vs. Agfa India Private Ltd., III (2018) CPJ 12 (SC) and setting aside the order passed by this Commission, the Hon’ble Supreme Court inter-alia he
