Unit Trust of India vs H.R.GUPTA

BRIEF facts giving rise to this appeal are that the complainant purchased 1,000 Master Shares of UTI from the secondary market for Rs. 22,266/- on 15.4.1994. He lodged the said shares with the UTI in two lots of 500 shares on 30th May, 1994 and 11.7.1994. He received back 400 shares out of the second lot on 19.1.1995 after transfer and the remaining 1600 shares in July, 1995 during the pendency of the complaint which had been filed on 1.5.1995. By the time the complainant received the shares after transfer the price had crashed and the complainant suffered heavy financial loss. He approached the District Forum claiming Rs. 15,899/-on account of compensation damages and costs. During the pendency of the complaint, however, he received the balance 1600 shares.

UTI impleaded as opposite party in the case, failed to file any written version. The complainant filed his own affidavit. On a consideration of the matter, the District Forum-II allowed the complaint and awarded Rs. 5,000/- as compensation besides Rs. 2,000/- an account of damages/costs. The opposite party-UTI, has assailed the order in this appeal.

None appeared for the appellant when the appeal came-up for hearing. We have heard Mr. Alok Mahajan-Advocate for the respondent and have carefully gone through the records.

THE main contention put forward in the grounds of appeal is that the complainant had purchased the shares for the purpose of resale and in any case, the transaction was of commercial nature and the complainant was not covered within the definition of ''Consumer'' as defined under Section 2(1)(d)(ii) of the Consumer Protection Act. As stated above, no written statement was filed on behalf of the opposite party, the appellant herein. No plea to the effect that the complainant was not a consumer was taken. It was, therefore, not necessary for the complainant to show that he had invested in the shares to earn his livelihood and was covered under the definition of ''Consumer''. THE plea whether the complainant is a consumer or not on the grounds put forward in the appeal is a mixed question of law and fact. Whereas plea of law can be raised even in appeal, a plea which is a mixed question of law and fact cannot be allowed to be raised in the appeal for the simple reason that doing so would cause prejudice to the other side, who had no opportunity to place on record the relevant facts and material. We, therefore, find no merit in the above contention. The appellant has not even attempted to give an explanation for the delay in transferring the shares. The delay stands admitted. It cannot be disputed that Master Shares of UTI are tradeable and at the time of hearing, we were informed that the respondent, ultimately sold off 700 shares @ 12.50 per share. The loss suffered by the complainant on account of delay justified the grant of even a higher amount but the complainant has not preferred any appeal against the order. We find no case for interference with the amount of damages awarded by the District Forum. As the time fixed the District Forum for payment of damages and costs has expired, we direct the opposite party/appellant to comply with the order within six weeks of the receipt of a copy of this order failing which the amount shall carry interest @ 18% per annum from the date of default till realisation. The respondent shall also be paid Rs. 500/- as costs. The appeal is disposed of accordingly. A copy of the order be furnished to the parties as well as District Forum- II. Appeal disposed of.