MANAGER CATHOLIC SYRIAN BANK LTD Vs. K MADHUSOODHAN

JUDGEMENT

(1.) The first opposite party in O. P. No.387/1996 on the file of the District Forum, Thiruvananthapuram, is the appellant. The 3rd opposite party invited applications for allotment of shares, in response to the same the complainant applied for allotment of 500 shares by remitting one half of the value of the shares as per the conditions of the 3rd opposite party Company and submitted the same with the first opposite party who is the banker of the 3rd opposite party. The complainant's application was on 2/3/1996 with a cheque drawn through his banker 4th opposite party for an amount of Rs.2,500.00 in favour of the third opposite party; and as indicated, submitted the same with the first opposite party who is the banker of the 3rd opposite party. The application and the amount had to reach on the appointed date. The grievance of the complainant is, since the first opposite party did not sent up the application and the cheque before the appointed date the complainant could not get 500 shares allotted on paying the balance of Rs.2,500/-. Therefore, according to the complainant that would constitute deficiency of service, and consequently, he is entitled to compensation which he claimed as per the quoted value of the share in the share market on the date of the complaint for the 500 shares, which was Rs.28,750/-. He also claimed incidental reliefs.

(2.) The opposite parties 1 to 3 have filed separate versions. The first and second opposite parties maintained that, the complaint is not maintainable against them as the complainant did not hire their service; the shares could not be allotted as the first opposite party did not sent up the application and the papers to the opposite parties 2 and 3 in time. Second opposite party in addition maintained that the first opposite party had sent up a Nil collection certificate also to the second opposite party. In such circumstance opposite parties 2 and 3 maintained that, they cannot be made liable. First opposite party in-addition maintained that, it was due to an in advertant omission that the same was not sent up the application and the cheque to the 3rd opposite party in time. It was also maintained that in the meanwhile share value has fallen down and therefore he is not entitled to any compensation. The fourth opposite party was ex-parte. On the side of the complainant his agent was examined as PW1 and he produced Exts. PI to P7. On behalf of the first opposite party, their Manager was examined as D W1 and Ext. Dl was marked. The District Forum on consideration of the said evidence came to the conclusion that there is deficiency of service and on the basis of the said finding directed the first opposite party to pay Rs.28,750/- with Rs.500/- as costs to the complainant within a period of one month, failing which the first opposite party shall also be liable to pay interest at 12% on the aforesaid amount of Rs.28,750/-. In this appeal by the first opposite party the said direction is challenged.

(3.) The learned Counsel for the appellant maintained that, the complainant being not a consumer as he sought to purchase shares, which under the law, is a commercial transaction. The learned Counsel alternatively maintained that, since the default that alleged against the first opposite party being the result of inadvertent omission, that cannot constitute deficiency of service under the law. At any rate, according to the learned Counsel the quantification of the compensation cannot be supported as according to him there being no certainty that the shares would be allotted to the complainant; and fixing the compensation on the basis of its value on the date of filing of the complaint cannot be supported. If at all, according to the learned Counsel, only a compensation which cannot have relationship with the value of the shares on the date of the complaint alone could be fixed. This is particularly so as according to the learned Counsel Ext. Dl would show that, by the time the version was filed the market value of the share in less than 2 months have come to down from Rs.57.50 to Rs.11 /-. On the other hand the learned Counsel for the respondent/complainant would maintain that, since the complainant is the beneficiary of the service availed by the 3rd opposite party he, under the law, is a consumer. Then the learned Counsel maintained that as per the materials placed before the District Forum the inevitable inference being that the allotment was not made solely on the ground that his application did not reach the 3rd opposite party in time, his prayer cannot be denied on the ground that, his claim for share being contingent, there could not be any deficiency of service or eligibility for compensation. The learned Counsel maintained that in the facts and circumstances of the case since the complainant has lost his right to sell the shares, the measure of compensation has to be as on the date of filing of the complaint and not a future date.