KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.435/11

JUDGMENT DATED 14.11.2011

PRESENT:

SHRI.S. CHANDRA MOHAN NAIR         :  MEMBER

1.      The Manager

Treasury Main Branch,

Federal Bank Ltd.,

Marine Drive,Kochi – 31.

2.      The Manager

          Federal Bank Ltd.,                           :  APPELLANTS

          Thodupuzha.

(By Adv. S. Reghu Kumar)

Vs

Balu N.

S/o. Narayanan Namboothiri

Represented by its authorized agent,     :  RESPONDENT

N. Narayanan Namboothiri,

Sree Nilayam, Kalloorkadu P.O.,

Muvattupuzha.

( By Adv. Sasthamangalam R. JayaKrishnan)

JUDGMENT

SHRI.S.CHANDRAMOHAN NAIR,MEMBER

          This appeal is preferred by the opposite parties in CC.638/09 before the CDRF, Ernakulam who are aggrieved by the directions to refund Rs.26,160/- with interest at 9% per annum from the date of transaction till realization.

2.      The complainant has approached the Forum stating that he has purchased  15 pieces of 8 gm. bullion gold  (120 gms.) from the second opposite party on 13.2.09 by their invoice No.139 and that the price was Rs.1,451/- per gm. on that day.  It is the case of the complainant that the second opposite party collected Rs.1,669/- per gm which was Rs.218/- more per gram on the date of purchase.  The complainant has alleged that the opposite parties had committed deficiency in service and also unfair trade practice whereby the complainant had lost Rs.26,160/-.  In the complaint it was prayed that the amount of Rs.26,160/- collected excessively by the second opposite party be directed to be returned with 15% interest from 13.2.09 till realization with compensation of Rs.5000/- and costs.

3.      The opposite parties resisted the matter by filing version wherein the allegations of the complainant were denied.  It was stated that the gold coins were imported from Switzerland by paying statutory charges and that the price fixed was intimated to the complainant before hand and it was knowing the price that the complainant had purchased the gold from the second opposite party.  The opposite parties have a further case that they had clearly stated in the invoice that the price of the gold was 1,669/- per gm.  The opposite parties submitted that after having agreed, accepted and purchased the gold, it was unfair and unjust on the part of the complainant to approach the Forum with unclean hands.

4.      There was no oral evidence from the side of the complainant. However Exts.A1 to A4 were marked on the side of the complainant.  A witness of the opposite parties was examined as DW1 and Exts. B1 and B2 were marked on the side of the opposite parties.

5.      Heard both sides.

6.      The learned counsel for the appellants/opposite parties vehemently argued that the order of the Forum below directing refund of Rs.26,160/- with 9% interest is perse illegal and hence unsustainable.  It is his very case that the Forum ought to have found that the complainant had purchased the gold coins after fully knowing its price and the complainant had no case that the opposite parties had collected a higher price then that was shown in the invoice.  It is the further case of the learned counsel for the appellants that there was no unfair trade practice or any kind of deficiency in service on the part of the opposite parties.  He has also relied on the decision of the Rajasthan State Consumer Disputes Redressal Commission in  Thanaram Suthar Vs. Deva Ram & Ors I (1996) CPJ 194 wherein it is held that no relief can be granted under the Consumer Protection Act on the sole  basis that the  price charged  was excessive, if the price was displayed by the seller.   Inviting our attention to Section 2
(c ) iv if the C.P Act, the  learned counsel submitted that the opposite parties had displayed the price for the gold and it was fully knowing that the complainant had purchased the gold coins from the opposite parties.  Submitting for the position that there was no unfair trade practice or deficiency in service, the learned counsel argued for setting aside the order of the Forum below. 

7. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below.  It is submitted by him that on the day of purchase the value of the gold was Rs.1451/- as can be seen from Ext.A2 ie; Mathrubhumi daily.  It is also his case that the opposite parties had committed unfair trade practice by collecting excessive charges when the rate of gold was much below than that was collected by the opposite party.  Contending for the position that the order of the Forum below is a well considered one and in fact the forum below ought to have awarded compensation and costs, the learned counsel argued for the dismissal of the appeal.

8.      On hearing both sides and also on perusing the documents produced, it is found that the complainant has purchased 120 gms of gold from the opposite party at the rate of Rs. 1,669  per annum.  It is also seen that it is as per the invoice of the opposite party that the complainant has purchased the gold.  It is to be found that the complainant has no case that the opposite parties had collected more amount than that was shown in the invoice.  Section 2 -C (iv) of the Consumer Protection Act clearly states that if a trader or a service provider charges a price in excess of the price fixed by law, displayed on the goods, displayed on the price list or agreed between the parties, a complaint is be maintainable as against the trader/ service provider. In the instant case, the complainant has no case that it was in excess of the price exhibited by the trader/opposite parties or it was in disagreement between the parties that he was compelled to by the gold coins from the opposite parties.  Though the complainant would say that it was only Rs.1451/- per gram on the day of purchase no evidence is adduced by him to substantiate his contention.  Mere production of a paper report is not enough to establish his case that the opposite parties had collected excessive amount from the complainant.  It is also to be found that the complainant has purchased the gold after agreeing the invoice rates and in such circumstances the order of the Forum below cannot be allowed to sustain.  The same is liable to be set aside and it is done so accordingly.

In the result, the appeal is allowed, the order dated 31.12.10 of CDRF, Ernakulam in CC.638/09 is set aside.  In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.

S. CHANDRA MOHAN NAIR         :  MEMBER