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TMI Blog1994 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... , she filed a complaint in District Forum which was dismissed -Whether it could be said that complainant and opposite party together on 8-9-1991 arrived at a full and final settlement of claims relating to profits and compensation - Held, yes - Whether as opposite party had charged commission and undertook to render service to complainant, complainant was a consumer who had hired services of opposite party - Held, yes - Whether complaint was maintainable - Held, yes - CD NO. 166 OF 1992 - - - Dated:- 10-2-1994 - JUSTICE A. VENKATARAMI REDDY, PRESIDENT SMT. J. ANANDA LAKSHMI AND C.V. SUBBA REDDY, MEMBERS K.V. Ramanarao for the Respondent. ORDER Reddy, President - The case of the complainant as seen from the complaint is as follows : The complainant obtained the portfolio management services for investment in shares from the opposite party, i.e., Aneja Financial Consultancy Services. The opposite party promised to sell and purchase shares on her behalf by investing the amount received from the complainant and also promised to advance loan in equal amount paid. The complainant paid Rs. 10,000 towards investment. The opposite party promised that he will make wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1992 in respect of the same dealings and the present complaint is not maintainable as it is barred by res judicata, under Order 2, rule 2 of the Code of Civil Procedure, 1908; (3) the complainant is not a consumer and the transactions in question are of commercial nature as they relate to purchase and selling of shares; (4) the complainant is a member of the share trading facility of the opposite party and cannot be said to have hired that services of the opposite party; and (5) lastly the claim is purely for settlement of accounts and is not maintainable in the forum. In reply to the above, the complainant apart from denying the allegations made in the counter submitted that she claimed Rs. 9 lakhs on the promise of the opposite party that one can become a millionaire within a short time. According to her, she was forced to accept less market rate even for settlement. Account was prepared subsequent to that settlement. Accor- ding to her, the letter of full and final settlement dated 24-7-1991 is forged on blank papers on which her signature has been obtained. She lodged a complaint to the police for non-compoundable and non-cognizable of- fence. She denied that a cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney and become rich. A wise investor can earn lakhs and be a millionaire within a short period. The opposite party as portfolio managers can earn maximum profits for the person who invests. The other terms and conditions with regard to the investment, loan and all other things were mentioned in Ex. A.2. Ex. B. 1 shows that the complainant became a member of the scheme of the opposite party Aneja Financial Consultancy Services on 28-6-1990. In Ex. B.2 dated 10-7-1991 the complainant issued a notice to the opposite party. In the said notice it was mentioned that she joined as a member of the Consultancy on 28-6-1990 and invested Rs. 10,000. But the opposite party failed to render accounts for the quarter ending 30-9-1990. She also mentioned that she filed a case in the Consumer Forum CD No. 591 of 1990 and the same was withdrawn on the assurance given by the opposite party to render proper accounts in failure. It was also mentioned that she invested further a sum of Rs. 36,000 in all. Since the opposite party failed to show the account, the complainant demanded the opposite party to render accounts supported with receipts within three days from the date of the receipt of notice, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of the cheques with dates were mentioned for a total amount of Rs. 22,500. According to the opposite party, the complainant has encashed those cheques. In the reply, the complainant did not specifically deny the settlement arrived at on 8-9- 1981 and also the letter said to have been written by her on the even date to the Inspector of Police, Crime Branch, Hyderabad. This settlement was supported by a letter bearing the same date, dated 8-9-1991, Ex. B.11 addressed by the complainant to the Inspector of Police, Team No. 4. C.I. 11, Crime Branch, Hyderabad. In the said letter it was stated : "I with to inform you that I have arrived at an amicable settlement and have settled the accounts in full and final. Therefore, I request you to close the matter and I hereby withdraw my complaint. I thank you for your kind coopera-tion. I have now no further complaint against Aneja Financial Consultancy Services". Thus, it is clear that she wrote a letter to the Inspector of Police stating that there was amicable settlement and accounts were settled fully and finally and requested the Inspector of Police to withdraw the com-plaint. Although it was specifically mentioned in the counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Commission held that full and final payment in this context pertains to receipt of insured value and not to the prayer of the applicant for interest, travel expenses and punitive damages for harassment mental and physical strain, etc. It also held that payments were often delayed with a view to coerce the insured into giving a receipt in full and final settlement of the claims of the insured. It, therefore, accepted the statement of the complainant that he did not give the discharge at the time of receiving the cheque for Rs. 2 lakhs willingly and voluntarily and that he had no choice but to give discharge as desired by the Insurance Company. It further held that full and final settlement means termination of liability under a contract and under the contract of insurance policy in this case. In fact, the expression 'in full and final settlement is equivalent to discharge'. Discharge is termination liability under a contract by executing an instrument of receipt for payment. Since the claim in the subsequent complaint related for damages or compensation or loss suffered by the consumer due to negligence of the opposite party which is a liability arising not under the contract of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll and final settlement with regard to profits, compen- sation and loss, of the matter, the aforesaid National Commission's case has no application to the facts of this case. 6. The complaint also relied on the decision in H.R. Gill v. Suryavamsi Kshatriya Davati Samaj IV 1992 (1) CPR 647 of the Maharashtra State Consumer Disputes Redressal Commission, Bombay. In the said case, H.R. Gill took a marriage hall on 7-3-1990 for wedding and reception of his son to be performed on 5-6-1990 and paid an amount of Rs. 3,001. Subse- quently, the opposite party taking advantage of the situation demanded payment of Rs. 800 towards utensil charges. The complainant offered to make payment by cheque. Without accepting the said cheque, the oppo- site party taking undue advantage of the situation switched off the power on the ground floor and that the guests and the invitees taking food faced a total black out. The complainant persuaded the opposite party to accept the cheque and for which a receipt was issued by the complainant. Claiming that the act of the opposite party amounts to deficiency of service while hiring out the hall and also amounts to extracting of money from the consumers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency in service rendered by the opposite party. Hence, we are of the view and hold that the complainant is a consumer and is entitled to maintain the complaint. The further contention of the opposite party that the transactions in question are of commercial nature and that, therefore, the complainant is not a consumer is not tenable. It is only under section 2( d )( i ) of the Act the definition of consumer is that a person who buys any goods for consideration and does not include a person who obtains such goods for resale or for any commercial purpose. There is no such embargo in respect of hiring or availing of any services. The complainant is, therefore, a consumer and the complaint is maintainable. 8. It is next submitted by the opposite party that the claim is purely one for rendition of accounts. A reading of the complaint shows that the claim of Rs. 9 lakhs is to be the loss sustained by the complainant on account of the negligence of the opposite party in not investing the amount and also in not advancing the loans. Thus, it is clear that the prayer in the complaint is not for settlement of account but towards the probable profits that have been earned, had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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