The instant case was instituted on the basis of a petition of complaint filed by one Sunita Saha Adhikary, W/O. Pronab Adhikary, Malanchapally, Post- Mokdumpur, Dist. – Malda u/s. 12 of Consumer Protection Act, 1986and the said petition was registered before this Forum now Commission as Complaint Case No. 51/2019.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant Sunita Saha Adhikary, W/O. Pronab Adhikary approached the O.P. for selling her own broken gold ornament measuring 15,300 gm. After measuring the O.P. decided to pay Rs. 29,000/- (Rupees Twenty Thousand Only) per 10 gm. and the final pay was fixed Rs.44,000/- (Rupees Forty Four Thousand Only).

The further case of the complainant is that the O.P. paid Rs. 20,000/- (Rupees Twenty Thousand Only) a receipt was granted to that effect and asked her to come in the afternoon for the rest amount i.e. Rs. 24,000/- (Rupees Twenty Four Thousand Only). Accordingly, the complainant with her husband came at that time but the O.P. denied giving her the rest amount. The complainant sent a legal notice on 01/11/2018 and the O.P. replied that he only gave his consent for payment of Rs. 20,000/- (Rupees Twenty Thousand Only) for 8 grams gold. Finding no other alternatives the complainant came to this Forum and filed a case for this fraudulent act of the O.P.

The O.P. i.e. Ashim Karmakar filed written version through his Ld.Lawyer denying all the material allegations contending inter alia that the case is barred by limitation. The complainant has no jurisdiction to file the case and the case is also barred by law of waiver, estoppels and acquiescence.

The definite defense case of the O.P. is that the complainant wrongly claimed the rest amount of Rs. 24,000/- (Rupees Twenty Four Thousand Only) from the O.P. as because after melting the actual gold obtained only 8 grams instead of 10 grams which was amounting to Rs. 20,000/-(Rupees Twenty Four Thousand Only). The whole mantling process was done in front of the complainant. So the O.P. only gave her Rs. 20,000/- (Rupees Twenty Thousand Only) with a written receipt and the complaint has no right to claim the rest amount of Rs.24,000/-(Rupees Twenty Four Thousand Only). So dismissal of the case has been prayed for with heavy cost.

The complainant Sunita Saha Adhikary filed Examination –in- Chief. She was examined as P.W.-1 and cross-examined. She filed some documents in Xerox.  Copy was served. No other witness was examined on behalf of the complainant.

On the other hand O.P. Ashim Karmakar was examined as O.P.W.-1 and also cross examined.

Ld.Lawyer of the complainant filed written argument.

Now the point for consideration: Whether the complainant is entitled to get any order as prayed for ?-

::DECISION WITH REASONS::

At the time of argument the Ld.Lawyer of the complainant submitted that the weight of the golden ornament was 15.300 gms. He further argued that at the relevant time the value of that golden ornament was Rs.44,000/- (Rupees Forty Four Thousand Only) but the O.P. paid Rs. 20,000/- (Rupees Twenty Thousand Only) out of Rs. 44,000/- (Rupees Forty Four Thousand Only).

 He further argued that the O.P. assured that he would pay the rest amount to the complainant within a very short time but ultimately he (O.P.) did not pay the amount. This is why the complainant has come to this Forum now Commission for getting relief.

 On the other hand the Ld.Lawyer of the O.P. argued that the weight of the golden ornament was Rs. 15.300 gms before melting. After melting the weight of the gold came to only 8 gms. At that time the valuation of 8 gms gold was Rs. 20,000/- (Rupees Twenty Thousand Only) and that amount was paid to the complainant as such no amount is due. So the instant case is liable to be dismissed with heavy cost.

It is no doubt that as per Ext.-1 the weight of the golden ornaments was 15.300 gms. If he hold the written version and the evidence on dock of O.P. that the weight of the golden ornaments was 15.300 gms. Before melting a careful search of the Google Website in computer after melting it is found that there may be a loss from 8 to 12 % then the total weight comes 13.464 gms. At the relevant time i.e. on 31/08/2018 the value of 22k standard Gold was Rs.2,972/- (Rupees Two Thousand Nine Hundred Seventy Two Only) as per gold rate in India and that rate was prevailing at Kolkata and there must be 3% upwards for carrying the gold from Kolkata as per Google Website. We hold the minimum value per gm of gold of 22k Rs. 2,972/-(Rupees Two Thousand Nine Hundred Seventy Two Only) then the value of the gold after melting 13.464 gms. x Rs.2,972/- (Rupees Two Thousand Nine Hundred Seventy Two Only) the total amount comes to Rs.40,015/- (Rupees Forty Thousand Fifteen Only).

So the story as stated by the O.P. is not at all believable. So after melting the valuation of the gold comes to Rs. 40,015/- (Rupees Forty Thousand Fifteen Only). But the O.P. paid only Rs. 20,000/- (Rupees Twenty Thousand Only). So Rs. 20,015 (Rupees Twenty Thousand Fifteen Only) is due and the complainant is entitled to get the same.

Beside that the complainant is entitled to get Rs. 5,000/-(Rupees Five Thousand Only) for mental pain and agony and Rs. 2,000/- (Rupees Two Thousand Only) for litigation cost. The total amount comes to Rs. 47,015/- (Rupees Forty Seven Thousand Fifteen Only) counting in round figure Rs. 47,000/- (Rupees Forty Seven Thousand Only). The complainant is entitled to get the amount and the O.P. paid Rs. 20,000/- (Rupees Twenty Thousand Only). So the total amount comes to Rs. 27,000/- (Rupees Twenty Seven Thousand Only).

C.F. paid is correct.

Hence,          ordered

that the case be and the same is allowed on contest with cost.

The complainant gets Rs. 27,000/-(Rupees Twenty Seven Thousand Only) in total from the O.P.

The O.P. is directed to pay the amount within 45(Forty Five) from the date of order failing which it will carry interest @ 5% p.a. from the date of filing of this case and in case of default of payment of the above amount within the stipulated time the complainant will be at liberty to put the decree in execution.

Let a copy of the order be given to the parties free of cost on proper application.