Karnataka

Chitradurga

CC/75/2016

M.B.Thippeswamy S/o Bhimappa - Complainant(s)

Versus

Attica Gold Pvt Ltd., - Opp.Party(s)

Shri.M.Suresh

09 Jun 2017

ORDER

COMPLAINT FILED ON:01.08.2016

DISPOSED      ON:09.06.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 75/2016

 

DATED:  9th JUNE 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

              

 

……COMPLAINANT

M.B. Thippeswamy,

S/o Bheemappa, Agriculturist,

Age: 50 Years, Madakaripura Village,

Chitradurga Taluk and District. 

 

 

(Rep by Sri.M. Suresh, Advocate)

V/S

 

 

 

 

 …..OPPOSITE PARTIES

1. Attica Gold Pvt. Ltd.,

Opp: Shankar Talkies,

Upstair of Kalanjali Silks,

B.D. Road, Chitradurga.

 

2. Attica Gold Company,

No.11/4, Swarna Bhavana,

Opp: Congress Office,

Queens Road, Bangalore.

 

(Rep by Sri. C.J. Lakshminarasimha,

Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay a sum of Rs.13,278/- towards damages unfair trade practice, Rs.25,000/- towards mental agony and litigation expenses of Rs.20,000/-.

2.     The brief facts of the case of the above complainant are that, he is the permanently residing at Madakaripura village, doing an agricultural work.  The advertisement announced by one Bramhanda Guruji in the TV announcement, instead of depositing the gold by way of pledge you have sold the gold online rate, on the advertisement given by the OP, the complainant intend to sold the two gold chains he visited the OP No.1.  Before visiting the OP No.1 the complainant has examined the gold carrot on 14.05.2016 from the Annapurna Computerized Gold Testing it comes 32.68 gms each in total 79.30 pure. As it is one gold chain it weighs 23.06 gms and 89.69 pure issuing the certificate by the Annapurna Computerized Centre.  On 17.02.2016, the complainant intend to sold the same and approached the OP No.1 and weighed the gold chain it comes 32.68 gms  79.00 pure and another one it comes 23.06 gms and 87.00 pure instead of 89.69.  The value of the gold rate is of Rs.30,560/- on that day.  The OPs have not issued any estimate or bill.  The OP totally valued and issue of Rs.1,29,038/- only.  The OPs have deducted 2% commission and 1% VAT without announcing in the advertisement.  By that time, OPs have obtained some signatures in the printed form those forms are in English.  Complainant is not having knowledge regarding with English.  The complainant asked the OPs why you have got the signatures, the OP told it is only confirmation the gold belongs to you.  By that way the OPs have intend to cheat the complainant and played an unfair trade practice.  The OPs have calculated the price of for Rs.29,000/- instead of Rs.30,650/-.  The OPs have deducted 2% commission and 1% VAT totally, the OPs have collected Rs.13,278/- from the complainant.  If the complainant sold the above said gold chain to someone, it comes for Rs.1,42,316/-.  But, the OPs have paid only Rs.1,29,038/-.  On 20.05.2016 complainant had issued a notice to the OPs, the OPs have given evasive reply.  The OPs have intend to cheat the complainant and he has not paid Rs.13,278/- to the complainant.  The complainant is suffering from mental agony and financial loss due to non-payment of Rs.13,278//- to the complainant, the same amounts to deficiency of service on the part of OPs.   OP No.1 is residing at Chitradurga and doing the work under the control of OP No.2 and the cause of action for the complaint arose on 20.05.2016 when the legal notice issued by the complainant and reply given by the OPs which is within the jurisdiction of this Forum and therefore, prayed for allowing the complaint.  

 3.    On service of notice, OPs appeared through                    Sri. C.J. Lakshminarasimha, Advocate and filed version denying the entire averments made in the complaint.  It is submitted by the OPs that, the complaint filed by the complainant is not maintainable either in law or on facts and the same is liable to be dismissed in liminie.  It is further submitted by the OPs that, M/s Attica Gold Pvt. Ltd., is a company incorporated under the provisions of Companies Act, 2013, carrying on the business by way of buying and selling of pre-owned gold and other jewelers.  It is submitted that, the company had cheated the complainant or customer is false.  The complainant before coming to our company he has created some false certificate from Annapurna Computerized Gold Testing and making the allegation by comparing with that price and purity.  It is submitted that, the complainant had approached the OP Branch on 17.02.2016 and took the estimation.  Later on 14.05.2016 he had approached Annapurna Gold Testing Center for testifying the purity of gold and he got the certificate after testing and certifying after comparing the purity and value in rupees of the gold and he was voluntarily sold the gold with his own wish after listening to the oral explanation in Kannada language by the Branch Manager.  This attitude of the complainant is clearly shows that, the said gold sold by the complainant based on the self-declaration regarding the ownership by the items offered for sale and the transaction was properly informed.  The difference by the same and obtained about the gold price and further the complainant has clearly understood the entire acts and events with terms and conditions about the transaction for the same.  It is further submitted that, complainant had compared the quality and price with Annapurna Gold Testing Certifiers by colluding with each other and he did not sell the gold to the other purchasers who offered more amount even though they had more price accordingly to the complainant.  The allegations made in para 2 of the complaint that, there is a misrepresentation by Brahamanda Guruji’s advertisement is false and there is no misrepresentation in the advertisement and the OP company is giving the said advertisement is only subject to the terms and conditions of the company which much reflecting below in the scroll of the advertisement.  Therefore, the complaint filed by the complainant is liable to be dismissed.

4.     Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-6 were got marked. On behalf of OPs one Sri. H.R. Rajkumar, the Branch Manager/Authorized Signatory of OP No.1 has examined as DW-1 by filing the affidavit evidence and no documents have been got marked.   

5.     Arguments of both sides heard. 

6.     Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service and unfair trade practice and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

        7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

 

REASONS

8.     It is not in dispute that, on the advertisement announced by one Bramhanda Guruji in the TV announcement, instead of depositing the gold by way of pledge to sold the gold on online rate and on the advertisement given by the OP, the complainant intend to sold two gold chains he visited the OP No.1.  Before visiting the OP No.1 the complainant has examined the gold carrot on 14.05.2016 from the Annapurna Computerized Gold Testing it comes 32.68 gms each in total 79.30 pure. As it is one gold chain it weighs 23.06 gms and 89.69 pure issuing the certificate by the Annapurna Computerized Centre.  On 17.02.2016, the complainant intend to sold the same and approached the OP No.1 and weighed the gold chain it comes 32.68 gms  79.00 pure and another one it comes 23.06 gms and 87.00 pure instead of 89.69.  The value of the gold rate is of Rs.30,560/- on that day.  The OPs have not issued any estimate or bill.  The OP totally valued and issue of Rs.1,29,038/- only.  The OPs have deducted 2% commission and 1% VAT without announcing in the advertisement.  By that time, OPs have obtained some signatures on the printed form those forms are in English.  Complainant is not having knowledge regarding with English.  The complainant asked the OPs why you have got the signatures, the OP told it is only confirmation the gold belongs to you.  By that way the OPs have intend to cheat the complainant and played an unfair trade practice.  The OPs have calculated the price for Rs.29,000/- instead of Rs.30,650/-.  The OPs have deducted 2% commission and 1% VAT totally, the OPs have collected Rs.13,278/- from the complainant.  If the complainant sold the above said gold chain to someone, it comes to Rs.1,42,316/-.  But, the OPs have paid only Rs.1,29,038/-.  The OPs have intend to cheat the complainant and he has not paid Rs.13,278/- to the complainant.  The complainant is suffering from mental agony and financial loss due to non-payment of Rs.13,278//- to the complainant, the same amounts to deficiency of service on the part of OPs.  

 9.    In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on documents like Gold Assay Certificates issued by the Annapurna Computerized Gold Testing marked as Ex.A-1, which clearly shows that, the gross weight of the gold is 32.680, carat of gold 19.03, item chain and another gold gross 23.060, carat of gold 21.50 and item chain, Office copy of the legal Notice dated 25.02.2016 issued by the complainant to the OPs marked as Ex.A-2 and Postal receipt and served acknowledgement marked as Ex.A-3 and A-4, reply notice issued by the OP Advocate to the complainant Advocate denying all the averments made in the notice dated 20.05.2016 marked as Ex.A-5 and computer copy of the gold rate in India on 17th May 2016 marked as Ex.A-6, which shows the Gold rate of 22 Carat per gram in Bangalore was Rs.2,860/-, 24 Carat gold rate per gram was Rs.3,056/-.  On that day i.e., on 14.05.2016 the OP has paid Rs.1,29,038/- instead of Rs.1,42,316/-, the difference is of Rs.13,278/-. 

10.   On the other hand, it is argued by the OP that, M/s Attica Gold Pvt. Ltd., is a company incorporated under the provisions of Companies Act, 2013, carrying on the business by way of buying and selling of pre-owned gold and other jewelers.  It is further argued that, the company had cheated the complainant/customer is false.  The complainant before coming to our company he has created some false certificate from Annapurna Computerized Gold Testing and making the allegation by comparing with that price and purity.  The complainant had approached the OP Branch on 17.02.2016 and took the estimation.  Later on 14.05.2016, he had approached Annapurna Gold Testing Center for testifying the purity of gold and he got the certificate after testing and certifying after comparing the purity and value in rupees of the gold and he was voluntarily sold the gold with his own wish after listening to the oral explanation in Kannada language by the Branch Manager.  This attitude of the complainant is clearly shows that, the said gold sold by the complainant based on the self-declaration regarding the ownership by the items offered for sale and the transaction was properly informed.  The difference by the same and obtained about the gold price and further the complainant has clearly understood the entire acts and events with terms and conditions about the transaction for the same.  The complainant had compared the quality and price with Annapurna Gold Testing Certifiers by colluding with each other and he did not sell the gold to the other purchasers who offered more amount even though they had more price accordingly to the complainant.  There is a misrepresentation by Brahamanda Guruji’s advertisement is false and there is no misrepresentation in the advertisement and the OP company is giving the said advertisement is only subject to the terms and conditions of the company which much reflecting below in the scroll of the advertisement. 

 11.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence.  The advertisement announced by one Bramhanda Guruji in the TV announcement, instead of depositing the gold by way of pledge you have sold the gold online rate, on the advertisement given by the OP, the complainant intend to sold the two gold chains he visited the OP No.1.  Before visiting the OP No.1 the complainant has examined the gold carrot on 14.05.2016 from the Annapurna Computerized Gold Testing it comes 32.68 gms each in total 79.30 pure. As it is one gold chain it weighs 23.06 gms and 89.69 pure issuing the certificate by the Annapurna Computerized Centre.  On 17.02.2016, the complainant intend to sold the same and approached the OP No.1 and weighed the gold chain it comes 32.68 gms  79.00 pure and another one it comes 23.06 gms and 87.00 pure instead of 89.69.  The value of the gold rate is of Rs.30,560/- on that day.  The OPs have not issued any estimate or bill. The Ex.A-1 Gold Assay Certificates issued by the Annapurna Computerized Gold Testing clearly shows that, the gross weight of the gold is 32.680, carat of gold 19.03, item chain and another gold gross weight 23.060, carat of gold 21.50 and item chain.  As per Ex.A-6, the computer copy of the gold rate in India on 17th May 2016 shows the Gold rate of 22 Carat per gram in Bangalore was Rs.2,860/-, 24 Carat gold rate per gram was Rs.3,056/-.  On 14.05.2016, the OP has paid Rs.1,29,038/- instead of Rs.1,42,316/-, the difference is of Rs.13,278/-.  The OPs have not produced any documents to disprove the case of the complainant and in turn the complainant has produced relevant documents to prove his case.  Hence, the Point No.1 is answered partly in affirmative.   

          12.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

It is ordered that, the above complaint filed by the complainant u/Sec.12 of C.P. Act is hereby allowed in part.

It is further ordered that, the OPs are hereby directed to pay a sum of Rs.13,278/- to the complainant along with interest at the rate of 9% p.a from the date of complaint till realization. 

It is further directed the OPs are directed to pay                   Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant.

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 09/06/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1: Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri.H.R. Rajkumar, the Branch Manager/Authorized Signatory by way of affidavit evidence. 

Documents marked on behalf of Complainants:

01

Ex-A-1:-

Gold Assay Certificates issued by the Annapurna Computerized Gold Testing

02

Ex-A-2:-

Office copy of the legal Notice dated 25.02.2016 issued by the complainant to the OPs

03

Ex.A-3 and 4:-

Postal receipt and served acknowledgement

04

Ex.A-5:-

Reply notice issued by the OP Advocate to the complainant Advocate

05

Ex.A-6:-

Computer copy of the gold rate in India on 17th May 2016

 

Documents marked on behalf of OPs:

-Nil-

 

MEMBER                                                            PRESIDENT

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