B. SATISH PAI vs K. VISHWANATH KAMATH

THIS appeal by the Opp. Parties is directed against the order dated 20.10.93 passed by the District Forum, Mangalore, in Complaint No. CPA/ DK-50/91-92 directing the Opp. Parties to pay a sum of Rs. 10,792/- with interest at 18% per annum to the Complainant.

THE facts, briefly stated are as follows : It is the case of the Complainant that he had availed the services of the Opp. Parties for the purchase and sale of certain shares. This service was rendered by the Opp. Parties on a certain percentage of commission. THE complainant .further averred that he had availed the services of the Opp. Parties since 1989. He produced copy of the statement of accounts prepared by him regarding the total purchases and sale of the shares made by him and also the copies of all the contract notes issued by the Opp. Parties regarding purchase and delivery of shares made on his behalf. THE Complainant also produced the copy of the statement prepared by him regarding the payments made by him to the Opp. Parties towards purchase of shares. THE Complainant nextly averred that the Opp. Parties failed to settle the purchase and sale account and thereby committed deficiency in service. THE complainant, on the basis of these averments, sought payment of a sum of Rs. 10,792/- due to him by the Opp. Parties with interest thereon and also a sum of Rs. 5,000/- as compensation. The Opp. Parties tiled their version and stated that the Complainant and his brother had a common account. On 25,9.90 the entire account was settled and there was no balance to be paid to the Complainant and his brother. On 25.9.90 the Complainant and his brother accepted a sum of Rs. 17,000/- from the Opp. Parties in full and final settlement of the accounts between them. The Opp. Parties on the basis of these averments sought the complaint to be dismissed.

During enquiry the complainant examined himself and got Exs. C.1 to C.19 marked in evidence. Opp. Party No. 1 examined himself as R.W.1 and got Exs. R.1 and R.2 marked in evidence.

THE District Forum considering this material placed on record by the parties, held that the Opp. Parties were due to the Complainant in a sum of Rs. ,10,792/- and in that view, directed the Opp. Parties to pay to the Complainant a sum of Rs. 10,792 /- with interest at 18% per annum thereon to the Complainant. We have called for the records and received. We have also heard the learned Counsel for the appellants and the representative of the respondent. We have also perused the material on record.

IN the present case, as referred above, the claimant claimed a certain sum as due to him by the Opp. Parties. The Complainant had the account with the Opp. Parties while availing the services of the Opp. Parties for the purchase and sale of shares since 1989. The Complainant produced the account statement prepared by him and sought the balance amount due by Opp. Parties to be paid to him. Having regard to these facts, we are constrained to hold that the averments in the complaint do not raise a consumer dispute. It is only recovery of certain sum alleged to be due by the Opp. Parties. The complainant has averred that the Opp. Parties were due in a particular sum but the Opp. Parties have filed their objections and averred that the matter was finally settled between them and they were not due in any sum to the Complainant. The word ''Complaint'' has been defined under Section 2(1)(c) of the Consumer Protection Act, 1986, which reads as under : "(c) "Complaint" means any allegation in writing made by a complainant that- (i) An Unfair Trade Practice or a restrictive trade practice has been adopted by any trader; (ii) The goods bought by him or agreed to be bought by him suffer from one or more defects; (iii) The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; (iv) A trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods. With a view to obtaining any relief provided by or under this Act; (v) Goods which will be hazardous to life and safety when used, or being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods."

IT is not the case of the Complainant that he did buy the goods from the Opp. Parties which did suffer with any defect. IT is also not the case of the Complainant that the services of the Opp. Parties hired by him for consideration did suffer with any deficiency.

THE only grievance of the Complainant is that he had an account with the Opp. Parties since 1989 and the Opp. Parties were due in a particular sum to him which the Opp. Parties failed, to pay. In our opinion, such a dispute cannot be classified as a consumer dispute under the provisions of Consumer Protection Act and the Complainant cannot be classified as a consumer as defined under Section 2(1)(d) of the said Act.

The District Forum failed to consider this material aspect of the matter. So having regard to these facts, we hold that the finding of the District Forum is erroneous and unsustainable.

IN the result, therefore, this appeal is allowed. The order of the District Forum, Mangalore recorded in Complaint No. CPA/DK-50/ 91-92 dated 20.10.1993 is set aside and the complaint of the Complainant/respondent is dismissed. The parties are directed to pay and bear their own costs. Appeal allowed without costs.