BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 12 of 2015
Date of institution: 05.01.2015
Date of Decision: 26.10.2015
Chandan Bala Sinha wife of Sanket Sinha, resident of H.No.202, Rivoli Tower, Chandigarh Enclave, Zirakpur, District SAS Nagar, Mohali, Punjab.
……..Complainant
Versus
1. Aishwarya Jewellers, through its Proprietor/Director/Partner, 502, Octavia Tower, Chandigarh Enclave, Zirakpur, SAS Nagar, Mohali, Punjab.
Alternate Address:
Shop No.39, First Floor, Jaipuria Sunrise Plaza, VIP Road, Zirakpur, SAS Nagar, Mohali, Punjab.
2. Rachana Goyal w/o Shri V.K. Goyal, Priproetor/Director/Partner, Aishwarya Jewellers, resident of 502, Octavia Tower, Chandigarh Enclave, Zirakpur, SAS Nagar, Mohali, Punjab.
3. V.K. Goyal son of Shri R.N. Goyal, Priproetor/Director/Partner, Aishwarya Jewellers, resident of 502, Octavia Tower, Chandigarh Enclave, Zirakpur, SAS Nagar, Mohali, Punjab.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Arun Batra, counsel for the complainant.
Shri Lalit Sharma, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the Opposite Parties (for short ‘the OPs’) to:
(a) refund her the amount of Rs.38,481/- alongwith interest @ 18% from the date of payment.
(b) pay her compensation of Rs.50,000/- for mental agony, physical harassment and Rs.11,000/- as litigation costs.
The case of the complainant is that OP No.2 and 3 are running the business of diamond jewellery under the name and style of OP No.1. The OPs started Aishwarya Kitty Plan its customers which had following features:
(a) Total number of members in each group of 80-100.
(b) Diamond Jewellery of worth Rs.2000 x 15 months
(c) One lucky draw in every month.
(d) Payment of kitty will stop for a lucky draw winner.
(e) Lucky winner will get diamond jewellery of worth Rs.30,000/-
(f) Every month get together including Hi-tea, Tambola game and attractive gifts.
(g) There is no provision for gold jewellery.
(h) Joining amount of kitty should be by cheque only.
The complainant joined the aforesaid kitty plan in January, 2013 in the name of her minor daughter and started paying Rs.2,000/- per month. The complainant was successful in the lucky draw held in August, 2013 for the diamond jewellery of Rs.30,000/-. By that time the complainant had already paid Rs.16,000/- as monthly subscription for the said plan. The complainant selected one pair of diamond tops the price of which was Rs.38,100/-. Against the invoice dated 29.09.2013 the husband of the complainant paid Rs.8481/- (Rs. 1000/- in cash and Rs.7481/- through debit card). At the time of purchase of jewellery the OPs assured that it is of best quality and 100% Hallmark certified jewellery. Certain members of the kitty who were successful in previous lucky draws raised questions about the quality of the jewellery and approached the OPs for refund of their amount. The complainant also approached the OPs for refund of the amount as the jewellery appeared to be of less value. Upon raising demand for refund of the amount, the OPs stopped the kitty and refused to refund the amount. The complainant alongwith other members approached the police authorities. The complainant and her husband got checked the diamond jewellery from Govt. approved valuer Surya Kant Jain, Sector 22 Chandigarh who vide certificate dated 30.11.2013 informed that the value of the diamond tops was Rs.9,017/-. Thus, the OPs have indulged in unfair trade practice and are deficient in services. With these allegations the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OPs. The OPs in their joint written statement have pleaded in the preliminary objections that this Forum has no jurisdiction to entertain the present complaint; the complainant has no locus standi to file the complaint; the complainant has not approached this Forum with clean hands as the present complaint is counter blast to the civil suit filed by OP No.3 against the complainant. The present complaint has been filed to harass and blackmail the OPs. On merits, it is admitted that they started Aishwarya Kitty Plan and it is also admitted that the complainant was successful in the lucky draw in held in August, 2013. It is denied that the complainant and her husband approached on 29.09.2013 for diamond jewellery of Rs.30,000/-. The complainant had paid only Rs.12,000/- and not Rs.16,000/-. The OPs closed their business of kitty on 15.09.2014. The complainant demanded gold jewellery and the OPs informed that there is no provision for gold jewellery and after that the complainant purchased diamond tops worth Rs.31,000/-. Due to improper care by the complainant, the diamond tops were broken within 5 days. The OPs gave her another diamond tops of Rs.38,481/- against these broken tops. It is denied that the complainant or other members of the kitty approached for refund of their amount. The certificate dated 30.11.2013 has no value and it is a created document. Denying any deficiency in service on their part, the OPs have sought dismissal of the complaint against it.
3. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-4.
4. Evidence of the OPs consists of affidavit of Rachna Goyal, OP No.3 Ex.OP-2/1 and affidavit of Vijay Kumar Goyal Ex.OP-3/1.
5. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
6. The issue in hand is regarding purchase of diamond jewellery by the complainant in the name of her minor daughter from the OPs under the Aishwarya Kitty Plan, a scheme floated by the OPs for its customers. As per the complainant she joined the kitty in the month of January, 2013 and paid Rs.2,000/- per month upto August, 2013. In August 2013 she got lucky draw in her favour and as per brochure issued by the OPs Ex.C-1 she was not to make any further payment and was entitled to diamond jewellery worth Rs.30,000/-. The complainant has chosen a pair of diamond tops which was priced at Rs.38,100/- . Therefore, against the assured sum of Rs.30,000/- the complainant paid an additional of Rs.8,481/- (Rs.1000/- in cash and Rs.7,481/- through debit card) to the OPs for one pair of diamond tops for Rs.38,100/-. The complainant was issued the retail invoice dated 29.09.2013 Ex.C-3 by the OPs showing the description of the purchased pair of tops, details of the payment against total sum of Rs.38,481/-. At the time of purchase, she was assured 100% certified Hallmark jewellery as mentioned in brochure Ex.C-1. As per the complainant, after the purchase she learnt that the diamond jewellery sold to her by the OPs is of inferior quality as she has gathered the information from other kitty members. Therefore, in order to ascertain the true value of the tops, she had approached a certified Govt. approved valuer M/s. Jain Jewellers, Sector 22, Chandigarh who has given the certificate showing the value of the paid of diamond tops as Rs.9,017/- as against the total value of Rs.38,481/- as charged by the OPs vide invoice Ex.C-3. Therefore, the complainant approached the OPs for refund of the deposited amount as she has been sold inferior quality of the product and had been charged excess amount. The OPs have failed to refund the amount and as such it is unfair trade practice by selling inferior quality of product having less worth than the promised quality of article as promised in brochure Ex.C-1. Due to the acts of the OPs the complainant has suffered mental agony and physical harassment for which she has sought refund of Rs.38,481/- alongwith interest and compensation and litigation costs.
7. The OPs in their written version have admitted having introduced the complainant as a member since January, 2013 of the kitty in the name of her minor daughter as mentioned in Para No.5 of the reply and have further admitted having received Rs.2,000/- per month upto August, 2013 from the complainant when the complainant was successful in the lucky draw for the month of August, 2013. Further the OPs have admitted having sold one pair of tops to the complainant vide invoice dated 29.09.2013 and took a stand that the diamond jewellery purchased by the complainant is best quality and 100% certified Hallmark jewellery and, therefore, they have not indulged into any unfair trade practice and sold the product as per its value. As per the OPs the complainant has never approached them for refund of the amount as alleged. As per the Ops the complainant was unnecessarily disrupting the business of the OPs and, therefore, the OPs have filed a civil suit for permanent injunction restraining the complainant alongwith others and the said suit is pending before the civil court at Derabassi. In this regard the complainant has submitted that the said suit has been dismissed in default showing the intent of the OPs to file a false suit against the complainant in order to frustrate the genuine claim of the complainant. Therefore, the complaint is without any merit and deserves dismissal.
8. As per the counsel for the complainant in order to prove his case he has relied upon Ex.C-3 i.e. the invoice issued by the OPs. the issuance of said invoice is not disputed by the OPs. Therefore, the sale and purchase of one pair of diamond tops is admitted between the parties. The perusal of Ex.C-3 clearly shows the gross weight of the tops, its number and 0.4% ct. with the total value of the article being Rs.38,100/- plus VAT Rs.381/-, the grand total being Rs.38,481/-. The OPs have admitted having received the total payment. Thus the transaction is complete as is evident from contents of Ex.C-3.
9. The disputed issue is whether the OPs have sold inferior quality of article as against the promised quality of article as per assurance given in brochure Ex.C-1 and charged excess amount from the complainant. In order to prove the inferior quality of articles having been supplied and over charging thereof by the OPs, the complainant has relied upon the report of Govt. approved valuer Ex.C-4. The perusal of Ex.C-4 shows under the description – one pair diamond top gross weight – 1.980, net weight 1.100, value of metal 3377, previous stone description diamond, weight approximate 0.47 Ct @ Rs.12,000/- Ct. Value of stone Rs.5,640/-, total value of jewellery in Rs.9,017/-, rate of pure gold taken as Rs.30,700/- per 10 grams on the date of valuation i.e. 30.11.2013. The said report is not supported by the affidavit of the author of the report. However, the complainant on the strength of report and her duly sworn affidavit Ex.CW-1/1 dated 02.01.2015 wherein in Para No.12 of the affidavit she has narrated about the report issued by the Valuer at her instance. In fact it was the bounden duty of the OPs to disprove the grievance of the complainant by adducing cogent and plausible evidence to show that the article supplied to the complainant is of best quality, hallmark and certified jewellery. The OPs have failed to show any rebuttal evidence to this effect. Therefore, the valuation report Ex.C-4 being unrebutted in the hands of the OPs can safely be considered a cogent piece of evidence to prove the case of the complainant.
10. As per terms of brochure Ex.C-1 the OPs have promised buy back policy as one of the main attractions of the scheme and, therefore, once the complainant has proved on record that the article i.e. one pair of diamond tops sold to her by the OPs is found of inferior quality on the basis of Govt. valuer report Ex.C-4. As per the Govt. valuer report the worth of the article is Rs.9017/- whereas the OPs have charged Rs.38,481/- vide Ex.C-2. Therefore, the OPs are bound to honour their buy back policy and refund the total value of the jewellery to the complainant alongwith interest for indulging into unfair trade practice i.e. the sale of inferior quality of article and charging the price of certified hallmark jewellery for which the complaint deserves to be allowed and the complainant deserves to be compensated.
11. OP No.2 vide her affidavit stated that she is a practising Advocate at Rajasthan High Court and she is no where connected with the transaction between the complainant and OP No.1 and 3. Complainant has failed to show the role of the OP No.2 in the whole transaction as the brochure in question has been issued by OP No.1 and owned by OP No.3 being its Proprietor. The factum of issuance of invoice and sale of tops is also admitted by OP Nos.1 and 3. Therefore, the grievance of the complainant lies against OP No.1 and 3 and is not maintainable against OP No.2 who is nowhere connected with the transaction as is evident from Ex.C-3 i.e. the invoice dated 29.09.2013 as the said invoice do not bear the signatures of the OP No.2 being the authorized signatory for OP No.1.
12. Therefore, the complaint against OP No.1 and 3 is allowed and is dismissed against OP No.2. OP Nos.1 and 3 are jointly and severally directed:
(a) to refund a total amount of Rs.38,481/- alongwith interest @ 9% per annum from the respective dates of deposit from January, 2013 to August 2013 – total sum deposited Rs.16,000/- as part of the kitty scheme and balance amount of Rs.14,000/- paid by the OP No.1 and 3 upon draw of the kitty in favour of the complainant and a further sum of Rs.8481/- paid by the complainant in cash/through debit card on 29.09.2013.
(b) to pay a lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony, harassment and costs of litigation.
Compliance of the above order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
October 26, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
