TaxTMI 
TaxTMI 
1994 (2) TMI 229
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....d the complainant sustained loss of Rs. 10 lakhs due to negligence of the opposite party. Complainant, there-fore, claimed a sum of Rs. 9 lakhs with interest from the date of award till realisation, and costs. 2. The version of the opposite party as could be seen from the counter is that the complainant paid a sum of Rs. 10,000 on 7-12-1990 and the same was credited to her account but it is unimaginable how she can claim Rs. 9 lakhs, on the investment of Rs. 10,000 and did not claim Rs. 9 lakhs, in the notice issued by the complainant dated 17-7-1991. At the request of the complainant on 28-7-1991 the account was settled at the lower rate prevailing on 24-7-1991 and an amount of Rs. 4,000 was paid by cheque on the same day. On 31-7-1991 a full and final settlement was made and it was found that the complainant was entitled to a sum of Rs. 15,673 which was paid by cheque dated 24-8-1991 and the same was acknowledged by the complainant in full and final settlement and 100 shares of Super Forgings were returned to her. In addition to the aforesaid settlement, the com-plainant with a view to harass the opposite party, filed a complaint before the Commissioner of Police which was forwa....
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.... full and final settlement cannot take away the right of claiming compensation. She submits that she is a consumer and is entitled to maintain the complaint. 3. On behalf of the complainant, along with the complaint, Exs. A.1 to A.4 and also third party affidavit were filed. On behalf of the opposite party Exs. B.1 to B. 15 were filed. No oral evidence was adduced by both the parties. The main questions that arise for consideration are: (1) whether there is any full and final settlement of accounts between the parties on 8-9-1991 (2) whether the complaint is barred by res judicata under Order 2, rule 2 as the complainant has filed CD. Nos. 442 and 443 of 1992 in the District Forum and the same were dismissed; and (3) Whether the complainant is a consumer within the meaning of the Consumer Protection Act, 1986. The first and foremost question to be decided is whether there is any full and final settlement between the parties. It is not in dispute that the complainant paid a sum of Rs. 10,000 for investment and became a member of the shares trading facility of the opposite party. In order to decide this question it is necessary to refer to some documents filed. Ex.A. 1 filed by the....
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....opposite party to the best of their ability to show good performance, and to reduce the loan account of the complainant to Rs. 50,000 gradually. Alternative Saturdays the complain-ant would go and collect fortnightly copy of her account. It was further stated that the complainant can withdraw at any time from the member- ship and the account shall be settled within one month of giving such notice. Thus, it is clear that after the letter dated 10-7-1991 the complain- ant continued to be a member and both of them have agreed to monitor portfolio investment and to reduce the loan element. The complainant gave notice Ex. B.4 dated 28-7-1991 to the opposite party to settle her account and her brother's account. Ex. B.5 is the receipt issued for the money received on account of settlement of her account. Ex. B.6 is the receipt passed for settlement of her brother's account. Ex. B.7 was a receipt issued by the complainant on 31-7-1991. It shows that the com-plainant received share certificates of Super Forgings and Steels Ltd. and a cheque for Rs. 15,673 dated 24-8-1991 in full and final settlement of her account from the opposite party. Thereafter, the statement of account was prepared f....
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....f the reply affidavit that all the statements made in para 6 of the counter are false and concocted. Similarly, with regard to para 7 it was stated that all the allegations made are false and misleading. The Sub-Inspector of Police in fact reprimanded the opposite party. There is no specific denial by the complainant about the settlement arrived at on 8-9-1981. The letter Ex. B. 11 written on the same date to the Crime Branch Inspector clearly mentioned that a settlement was arrived at and requested to withdraw the complaint. 4. It is next submitted by the complainant that a mere passing of a receipt for full and final settlement does not mean that the complainant gave up all her claims with regard to the loss of profits, compensation for mislead- ing, etc. In support of the contention, the learned counsel-complainant appearing in person relied on the decision of the National Commission in Col. Bhitn Singh v. Regional Manager, National Insurance Co. III 1992 (1) CPR 439 wherein the complainant insured a mare 'private pleasure' with the opposite party for a sum of Rs. 2 lakhs. The mare fell ill and the opposite party was intimated accordingly. The mare died on 12-2-1989. The com-pl....
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....f the decision of National Commission are different from the facts of the instant case. In the instant case, the complainant paid a sum of Rs. 10,000 to the opposite party and that the opposite party promised to invest her money and make huge profits and that he also promised to advance loans for purchase of shares and to settle accounts once in three months. But contrary to the aforesaid promises, he did not wisely invest the money and did not advance loans and thereby, the complainant suffered loss of Rs. 9 lakhs. 5. It is to be seen that the opposite party sent statement of accounts in Ex. B.9 and the same was acknowledged by the complainant under Ex. B8 dated 20-8-1991. No doubt, the receipt was issued earlier on 31 -7-1991, i.e., Ex. B.7, which reveals that it is full and final settlement of account from the opposite party. But, it is the case of the complainant that this was obtained on a blank paper signed by her. In Ex. B.10 it was clearly mentioned that a full and final settlement of all claims in respect of investment, profits and compensation were amicably settled and an amount of Rs. 22,500 was accepted in full and final settlement. It is, therefore, clear that the set....
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....tice. It also exhibited the situation by putting forth unreasonable and unjustified demand with a view to extract more money. It, therefore, allowed the complaint. It is clear from the narration of facts that in that case the Gill was almost compelled to pay the amount to the opposite party as it threatened to switch off the power and thereby causing inconvenience to the guests invited for the function. But, in the instant case as could be seen from the complaint there was no allegation or reference to any settlement arrived at, on 8-9-1991 and that she was coerced or threatened by the opposite party to accede to the said settlement. It, therefore, cannot be said that the complainant was compelled or coerced to enter into any settle- ment. Moreover, the circumstance that she wrote on the same day to the Inspector of Police to withdraw the complaint filed by her shows that there is settlement arrived at amicably between the parties relating to all disputes. For all the aforesaid reasons, we are of the view that the complainant and the opposite party together on 8-9-1991 arrived at full and final settlement of claims relating to profits and compensation. 7. It is next submitted by t....
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....efore notice on the ground that the complainant made a demand for accounts. But, it can only be dismissed if it is found to be frivolous and vexatious. In the case abovementioned, it was found that the complainant did not ask for accounts. The facts disclosed from the complaint clearly show that the complainant has been agitating as he was asked to pay more price than the fixed price by the manufacturing company. Hence., it was held in the said decision that the complaint is maintainable. The complain-ant also relied on a decision of the Tamil Nadu in Branch Manager, LIC of India v. V. Ramayya 1993 (2) CPR Tamil Nadu 22 wherein it was held that an ambiguity or doubt in a contract of life Insurance has to be construed against the Insurance Company .The above decision has no application to the facts of this case. She also relied on a decision in Doshiwada v. Jai Kishan Bhai Bapalal Nirmal II 1992 (1) CPR Guj. 312 of the Gujarat State Commission wherein it was held that a person offering procurement of loan which are not found to be genuine and charging brokerage from gullible customers through advertisements indulging in unfair trade practice is liable to be held for damages under th....