IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of June, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 159/09 (Remanded)
Between:
A.K. Krishnankutty,
S/o. Kuttan Pillai,
Aluvila Veedu,
Pannivizha Muri,
Anandappally P.O.,
Adoor Taluk.
(By Adv. Anil. P. Nair) .... Complainant.
And:
A.V. Vijayan,
Kurusha Nivas,
Muthoor P.O, Thiruvalla,
(Proprietor, Thrissur-
Fashion Jewellery, Adoor) .... Opposite party
ORDER
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant purchased a gold chain weighing 16.470 grams from the opposite party’s jewellery. The complainant had paid an amount of ` 16,788 as price of the gold including labour charges. Complainant has not used the chain daily though he noticed the colour fading of the chain and doubled the purity of gold. The complainant approached a goldsmith for checking the purity of gold. After examining the gold, he informed that the gold has no purity and it was adulterated and made of low quality gold. On 08.06.2009, the complainant approached the opposite party with gold chain and demanded to replace 916 purity gold instead of this. But he has not willing to replace the gold. Thereafter on 15.06.2009 the complainant had sent a legal notice to the opposite party and that was accepted by him. But he has not responded. After that the complainant contacted several time through telephone, then he agreed that he will given a new chain within 2 months and requested that to take legal actions against him. But the opposite party has not settle the matter. The act of opposite party is not only a deficiency of service but also a clear unfair trade practice. Hence this complaint for replacing the 916 purity gold chain instead of the low quality gold given to him or to given the price of the gold chain with labour charge with compensation and cost.
3. Opposite party neither appeared nor filed version. Hence opposite parties were declared as exparte. Since opposite party was exparte, this Forum allowed the complaint on the basis of the proof affidavit of the complainant and on the basis of documents produced and marked Ext.A1 to A4 and C1.
4. Aggrieved by the order, the opposite party filed an appeal as Appeal No.626/11 before the Hon’ble CDRC and the Hon’ble CDRC allowed the appeal and set aside the matter back to the Forum for fresh disposal.
5. On getting the order of the Hon’ble CDRC this Forum issued notice to both parties. Opposite party’s entered appearance and filed version.
6. According to opposite party, complaint is not maintainable either in law or on facts and liable to be dismissed on the ground that it is barred by limitation. The averment of complainant that he had purchased gold chain from opposite party’s shop on 09.05.2007 for an amount of ` 16,788 weighing 16.470 gram is absolutely false. Complainant never purchased a gold chain from opposite parties and they did not sold the same. Complainant neither approached nor demanded to replace 916 purity gold instead of gold chain. But opposite party admitted the acceptance of a notice having false allegation and the same was entrusted to Advocate Shaji Mohan for replying the baseless contention.
7. Since opposite party has not sold any item to complainant, there is no need to request to initiate legal action. Therefore the said allegation of complainant is false and malafide. Since complainant had not purchased a gold chain from opposite party, there would not have arisen any pain and suffering to complainant contrary to the said statement is false. Opposite party has not given any service or sold any gold ornament there would not have any deficiency of service or unfair trade practice. The ornament as produced by complainant before the Forum is fabricated for the purpose of this case.
8. According to opposite party, complainant is the Councilor of Adoor Municipality and the follower of BJP. He came to opposite party’s shop during 2009 period and demanded a huge amount as donation to BJP fund. Opposite party informed his inability to pay the same. But complainant threatened the opposite party by saying that he will bare the consequences and returned. Thereafter complainant issued the legal notice. This complaint is falsely fabricated due to the denial of donation to complainant’s party. Complainant has not entitled to get any relief as claimed. Therefore, opposite party canvassed for the dismissal of the complaint with cost.
9. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
10. Evidence of the complaint consists of the oral deposition of PW1, PW2, CW1 and DW1 and marked Exts. A1 to A4 and C1 and M.O.1. After the closure of evidence, both parties were heard.
11. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A4 and C1 and M.O.1. Ext.A1 is the estimate bill of ` 16,788 issued by the opposite party. Ext.A2 is the copy of advocate notice dated 15.06.2009 issued to opposite party. Ext.A3 is the postal receipt of Ext.A2. Ext.A4 is the letter dated 16.07.2009 issued by the Superintendent of Post offices, Pathanamthitta to the complainant’s Advocate. Ext.C1 is the report of the Expert Commissioner. M.O.1 is the gold chain sold by the opposite party.
12. In order to prove the opposite parties contention, opposite party filed proof affidavit. He was examined as DW1. Apart from oral evidence, opposite parties did not adduced any documentary evidence.
13. On the basis of the contention and arguments of the parties, we have perused the entire material on record. Complainant’s case is that he had purchased a gold chain by paying ` 16,788 from opposite party and later found that the said ornament had no purity and it was adultered. Complainant demanded the replacement of gold chain by 916 purity gold. But opposite party not willing to replace the gold. Hence this complaint.
14. Opposite party’s contention is that he never sold any gold chain to complainant and therefore he has no responsibility to the said gold chain. Complainant falsely implicated the opposite party in this case with regard to the denial of donation to a political party of complainant.
15. It is seen that there is no dispute regarding the running of gold ornaments shop named ‘Thrissur Fashion Jewellery’ under the ownership of opposite party. It is also revealed that the said institution has branches at Thiruvalla and Pandalam. Complainant’s specific contention is that opposite party accepted ` 16,788 and delivered MO1 and issued Ext.A1. But opposite party flatly denied it. On a perusal of Ext.C1 report it is revealed that ‘TFJ’ marking is seen in MO1. The relevant portion of Ext.C1 is as follows:- “Cu ame-bpsS shfp¯ sImfp-¯n ‘TFJ’ F¶ CwKvfojv A£cw sIm¯n-bn-«p”.
16. According to complainant, ‘TFJ’ is the short form of ‘Thrissur Fashion Jewellery’ the name of opposite party’s institution. But opposite party denied it by stating that in his ornaments ALV mark is given not ‘TFJ’. It is evident in DW1’s deposition which is as follows:- “Rm³ hn¡p¶ Dcp-¸-Sn-bn ALV -F¶ ap{ZWw \S-¯n-bmWv \ÂIp-¶Xv (A.L. Vijayan) Trichur Fashion Jewellery’ F¶-Xn-\pÅ ‘TFJ’ F¶ ap{ZWw \S-¯n-bmWv Xm¦Ä kzÀ® Dcp-¸-Sn-IÄ hn¡p-¶-sX¶v ]d-bp-¶Xv icn-b-Ã. Rm³ Ct¸mÄ [cn-¨n-cn-¡p¶ ame Gulf-þse ame-bmWv”.
17. Though opposite party put forward the ALV contention, he failed to substantiate any material to prove the same. In the absence of better evidence, it is perused that complainant’s contention of ‘TFJ’ is the short form of ‘Thrissur Fashion Jewellery” cannot be ruled out.
18. On a perusal of Ext.A3 and A4, it is evident that opposite party accepted Ext.A2 notice, but not responded so far. What prevented him to respond on Ext.A2? The contention raised by opposite party to vindicate the same is neither sustainable nor believable. Moreover, there is contradiction and incompatibility in proof affidavit and deposition with regard to Ext.A1 which is seen in DW1’s deposition as shown below:- “hmZn lmP-cm-¡nb estimate (Ext.A1) Rm³ \ÂIn-b-X-söv BZy-ambn ]d-bp-¶Xv proof affidavit -emWv ]d-ªn-cn-¡p-¶Xv F¶v ]d-bp¶p? icn-bà (A)”.
19. It is seen that in version, opposite party’s stand is that M.O.1 is falsely created by complainant for the purpose of this complaint. Opposite party deposed that M.O.1 is seen at the time of examination of complainant. But failed to answer on what basis he raised the issue that M.O.1 is created by complainant without seeing M.O.1. All this shows that opposite party has the full knowledge that M.O.1 has not pure gold. The same is evident in DW1’s deposition which is as follows:- “ M.O.1 ame Rm³ BZy-ambn ImWp-¶Xv hmZnsb hnkvX-cn¨ Znh-k-am-Wv. tIknsâ Bh-iy-¯n\v lÀPn-I£n ]WnX ame-bm-sW¶v ]{Xn-I-bn ]d-ªn-«p-v. ame ]{Xn-I X¿m-dm-¡p-¶-Xn\v ap¼v In-«n-Ãm¯ Xm¦Ä A{]-Imcw ]d-ªXv GXSnØm-\-¯n-emWv? No answer. “-Xm-¦Ä \ÂInb ame pure gold Asöv Adn-bm-am-bn-cp-¶Xv sImmWv M.O.1 -Im-WmsX BbXv hmZn \nÀ½n-¨-Xm-sW¶v ]d-bp-¶Xv icn-b-Ô.
20. Opposite party’s another contention is that Ext.A1 is not issued by him. It is only an estimate. In their daily transaction they issuing bills not estimate. But they miserably failed to produce bill books of the relevant period to substantiate the contention. Moreover, CW1 in his deposition states that in 90% of the sellers not given bills. The deposition is as follows: “km[m-cW kzÀ®-¡-S-I-fn _n \ÂIm-dptm? 90% sNdp-In-S-¡mcpw _n \ÂIm-dnÔ.
21. From the above facts and circumstances, we cannot find any reason to disbelieve the deposition of PW1 and PW2 which corroborates the crux of the case. Ext.C1 shows that M.O.1 having no purity. Opposite party has not challenged either to set aside the C1 report or taken any step to appoint a new commissioner. Apart from this opposite party has not produced any material to disprove the complainant’s case or adduced any cogent evidence to prove their contention.
22. From the above facts and circumstances of this case and the available evidence on record and the observations and discussions herein above, we find that opposite party sold gold chain having least purity and issued Ext.A1 selling low quality gold is unfair, illegal, unscrupulous and against all the cannons of consumer justice. It is not only a deficiency of service but also an unfair trade practice. Therefore complaint is maintainable and allowable.
23. In the result, complaint is allowed as follows:-
(1) Opposite party is directed to replace the complainant’s gold ornament with 916 quality gold or to pay the present market value of the ornament and complainant is directed to return the M.O.1 ornament at the time of replacement or payment by the opposite party as ordered herein above.
(2) Opposite party is also directed to pay ` 3000 (Rupees Three Thousand only) as compensation and ` 2,000 (Rupees Two Thousand only) as cost to the complainant.
(3) Parties are directed to comply the order within 15
days from the date of receipt of this order, failing
which the complainant is allowed to realize the whole
amount with 9% interest from this date till the
realization of the whole amount.
Declared in the Open Forum on this the 29th day of June, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Krishnankutty. K.K. (after remand)
PW2 : Joykutty (after remand)
Exhibits marked on the side of the complainant:
A1 : Estimate bill dated 09.05.2007 for ` 16,788 issued by
opposite party to the complainant.
A2 : Advocate notice dated 15.06.2009 sent by the complainant
to opposite party.
A3 : Postal receipt of Ext.A2.
A4 : Letter dated 16.07.2009 issued by the Superintendent of Post
offices, Pathanamthitta to the complainant’s Advocate.
Witness examined on the side of the opposite parties:
DW1 : A.L. Vijayan (After remand)
Exhibits marked on the side of the opposite parties: Nil.
Court witness:
CW1 : Udayan. R (After remand)
Court Exhibits:
C1 : Expert Commissioner’s Report
Material Objects:
M.O.1 : Gold chain (after remand)
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) A.K. Krishnankutty, Aluvila Veedu, Pannivizha Muri,
Anandappally P.O., Adoor Taluk.
(2) A.V. Vijayan, Kurusha Nivas, Muthoor P.O, Thiruvalla,
(Proprietor, Thrissur Fashion Jewellery, Adoor).
(3) The Stock File.
