By Sri. Mohamed Ismayil.C.V, Member
1.The case of the complainant is as follows:-
The opposite party is running jewellery business, introduced a scheme for the public in which the subscribers are bound to pay monthly instalments until 01/07/2019 and in turn the opposite party give gold ornaments without collecting making charge for the total amount paid. The complainant subscribed the scheme of the opposite party on 01/08/2018 after making first payment of Rs. 500/-. Thus the complainant remitted total Rs. 37,500/- in the scheme and on 14/06/2019 approached the opposite party for receiving gold ornaments worth Rs. 37,500/-. But the opposite party advised the complainant to contact on 01/07/2019 which is the due date as per the scheme. Relying upon the words of the opposite party, the complainant again approached the opposite party on 01/07/2019 for collecting gold ornaments. But the opposite party sent back the complainant by stating that the rate of gold ornaments is high on that day and again advised to come back after two week, by that time rate will come down. The rate of gold ornaments increased every day. Again the complainant approached the opposite party and demanded the gold ornaments for worth Rs. 37,500/- at the rate prevailed on 01/07/2019. But unfortunately the opposite party offered the gold ornaments at the rate of that day. By that time the rate of gold was increased from the rate prevailed on 01/07/2019.
2. According to the complainant, she invested the money for buying gold ornaments to her child. The opposite party ought to have given gold ornaments for worth Rs. 37,500/- at the rate of Rs. 24,000/- per one sovereign of gold which was prevailed on 01/07/2019. The act of the opposite party caused mental agony and hardship to the complainant. So the complainant approached this Commission and prayed for direction to the opposite party to hand over gold ornaments for worth Rs. 37,500/- at the rate prevailed on 01/07/2019 without collecting making charge and to pay Rs. 50,000/- as compensation for mental agony and hardship caused due to the act of opposite party.
3. The complainant is admitted on file and issued notice to the opposite party. The opposite party entered appearance and filed version.
4. In the version, the opposite party denied all the allegations except those are specifically admitted. According to the opposite party, the complaint is not maintainable. It is admitted by the opposite party that the complainant subscribed the scheme and paid Rs. 500/- as first instalment. The opposite party denied the contention that the complainant shall be provided with gold ornaments without collecting making charge for total amount paid until 01/07/2019. According to the opposite party as per the condition of the scheme, the complainant can collect gold ornaments at the rate prevailing on the day she approach with the proof of transaction.
5. It is stated in the version that only after the completion of scheme period the opposite party is bound to give gold ornaments without collecting making charge for the amount deposited by the subscriber at the rate of gold prevail in the market on the day of arrival of the subscriber. All the conditions of the scheme was known to the complainant and she had gone through the brochure of the scheme published by the opposite party and she accepted those conditions. It is admitted by the opposite party that the complainant approached the opposite party on 14/06/2019 and demanded gold ornaments for the amount deposited. Then the opposite party advised the complainant to visit the jewellery shop on 01/07/2019, which is the due date of maturity as per the scheme. According to the opposite party, the scheme period is stipulated one year duration and the maturity period is the first day of July 2019. So the opposite party refused to give the gold ornaments to the complainant, otherwise the complainant should be paid the making charge additionally for collecting gold ornaments. It is added by the opposite party that the gold ornaments can be given on or after 01/07/2019 without collecting making charge. The opposite party denied the allegation that the complainant contacted jewellery shop and demanded the ornaments on 01/07/2019 and the opposite party advised to come back after two weeks because of the high price of gold ornaments prevailed on that day. According to the opposite party the above statement of the complainant is concocted one and the opposite party is a reputed business firm and the complainant is making such false allegation only to tarnish the business of the opposite party. The opposite party admitted that the rate of gold was rising upwards during that period. It is also admitted by the opposite party that the opposite party was not permitted the complainant to purchase gold ornaments at the rate prevailed on 01/07/2019 when she came after the maturity period. Instead the opposite party offered gold ornaments at the rate of the day she arrived without collecting making charge.
6. The opposite party reiterated that the complainant came to the jewellery shop on 14/06/2019 and thereafter she came only in the month of August 2019 not in July. The opposite party could not provide gold ornaments at the rate prevailed on 01/07/2019 to the complainant in August. If the opposite party is given gold ornaments to the complainant at the rate prevailed on 01/07/2019, it would cause irreparable loss to the opposite party. It is stated by the opposite party that if the complainant had approached the opposite party on 01/07/2019 as per terms of the scheme she could have received the gold ornaments at the rate prevailed on the day. According to the opposite party, the complainant did not approach the opposite party on 01/07/2019 demanding gold ornaments for the reasons best known to the complainant herself. In the version, the opposite party offered gold ornaments without collecting making charge for Rs. 37,500/- to the complainant at the rate on the day she come. It is contended that the complaint does not disclose the last date on which the complainant approached the opposite party. The complainant has committed some lapses and the amount collected cannot be returned as per the terms of the scheme. It is also contented by the opposite party that the complainant has got no right to claim the gold ornaments at the rate existed on 01/07/2019 (Rs. 24000/-per sovereign). The opposite party also objected the claim of complainant of Rs.50,000/- as compensation for mental agony. The opposite party was not responsible for the negligent act of the complainant which resulted in filing the present complaint. So the opposite party prayed for the dismissal of the complaint with compensatory cost.
7. Both parties filed affidavits and produced documents. The documents produced by the complainant is marked as Ext. A1 to A14. Ext. A1 document is the copy of cash receipt for Rs. 500/- dated 01/08/2018 issued by the opposite party to the complainant. Ext. A2 document is the copy of cash receipt for Rs. 2000/- dated 15/09/2018 issued by the opposite party to the complainant. Ext. A3 document is the copy of the cash receipt for Rs. 1000/- dated 08/10/2018 issued by the opposite party to the complainant. Ext.A4 document is the copy of the cash receipt for Rs. 500/- dated 20/11/2018 issued by the opposite party to the complainant. Ext. A5 document is the copy of the cash receipt for Rs. 3,500/- dated 27/11/2018 issued by the opposite party to the complainant. Ext.A6 document is the copy of cash receipt for Rs. 5000/- dated 12/12/2018 issued by the opposite party to the complainant. Ext.A7 document is the copy of the cash receipt for Rs. 4000/- dated 19/12/2018 issued by the opposite party to the complainant. Ext. A8 document is the copy of the cash receipt for Rs.4500/- dated 19/01/2019 issued by the opposite party to the complainant. Ext.A9 document is the copy of the cash for Rs. 2000/- dated 13/2/2019 issued by the opposite party to the complainant. Ext.A10 document is the copy of the cash for Rs. 2500/- dated 11/03/2019 issued by the opposite party to the complainant.Ext.A11 document is the copy of the cash for Rs. 2400/- dated 11/05/2019 issued by the opposite party to the complainant. Ext. A12 document is the copy of the cash for Rs. 2100/- dated 20/05/2019 issued by the opposite party to the complainant.Ext.A13 document is the copy of the cash for Rs. 3500/- dated 07/06/2019 issued by the opposite party to the complainant. Ext. A14 document is the copy of the cash for Rs. 4000/- dated 14/06/2019 issued by the opposite party to the complainant. The opposite party produced one document and marked as Ext.B1 .Ext.B1 is the brochure of the scheme published by the opposite party revealing the terms and conditions of the scheme.
8. The complainant and opposite party heard in detail. The opposite party also filed notes of argument. Perused affidavits and documents. The following points arised for consideration of the Commission:-
- Whether there is deficiency in service or unfair trade practice committed by the opposite party?
- Relief and cost?
9. Point No.1 &2
The grievance of the complainant is that she subscribed the scheme of the opposite party and deposited Rs. 37,500/- during the period between 01/08/2018 and 01/07/2019. The complaint and affidavit filed by the complainant discloses that maturity period of the scheme is on 01/07/2019. This fact is admitted by the opposite party in the affidavit and version. As per the terms and conditions of the scheme, according to the complainant, she got every right to purchase gold ornaments without payment of making charges at rate of the day of purchase on or after 01/07/2019 for the total sum paid under the scheme. This contention of the complainant is also admitted in the version and affidavit filed by the opposite party.
10. In order to prove transaction, the complainant produced Ext.A1 to A14 documents before the Commission. Ext.A1 to A14 documents revealed the total payment of Rs.37500/- is made by the complainant. No dispute was arised with regard to those documents by the opposite party. But the opposite party contended that the complainant got right to purchase the gold ornaments for worth Rs. 37500/- only at the rate prevailing in the market on the day of arrival of the complainant to the shop. The opposite party added that the complainant did not come to the shop on 01/07/2019 and she came in shop only in the month of August 2019. So according to the opposite party the claim of the complainant for gold ornaments at the rate of 1st day of July 2019 cannot be accepted as per the terms and conditions of the scheme. The opposite party further stated that he is bound to give gold ornaments at the rate of the day of arrival by the subscriber to the shop. The opposite party produced Ext.B1 document to prove this contention before this Commission.
11. Considering the evidences availed on record, it can be seen that the maturity period of the scheme starts on 01/07/2019 not in 31/07/2019. So any subscriber, who comes on or after 01/07/2019 is eligible for purchasing gold ornaments at the rate prevailed on the day of arrival without collecting making charges. On 14/06/2019, the complainant approached the opposite party to purchase the gold ornaments. But she returned with empty hands on the basis of instruction to ‘contact’ the opposite party on 01/07/2019 or later for the gold ornaments. In this case, the fact narrated by the complainant is more reliable and acceptable than that of the opposite party. According to the complainant, she contacted the opposite party on 01/07/2019 for collecting gold ornaments for the amount deposited in the scheme. The statement of the opposite party that the complainant did not approach on 01/07/2019 but came to the shop in August 2019 cannot be believed. The opposite party even added that, he does not remember what day it was in the month of August. In this circumstances it can be assumed that the person, who is especially a woman already approached for gold ornaments on 14/06/2019 would definitely approach on 01/07/2019 for the collection the gold ornaments, in order to fulfil the long cherished desire to present such a invaluable gift to her child.
12. In this case no written agreement was produced by either side before the Commission. In the affidavit filed by the complainant, it is contented that the complainant signed some document on 01/08/2018, the very day on which she subscribed the scheme by making payment of Rs. 500/-. The opposite party did not challenge this contention of the complainant. So it can be assumed that there is execution of a document with regard to proposal and acceptance of the scheme introduced by the opposite party. It is also added by the opposite party that the complainant was very conversant with the terms and conditions of the scheme. In these circumstances there was every chance to execute a document with regard to the transaction and the opposite party wilfully withdrawn from producing the same before this Commission.
13. By evaluating Ext. B1 document it can be seen that no specific dates are mentioned about commencement of the scheme and completion date of the scheme in the part of terms and conditions. The only statement available with regard to the duration of the scheme is ‘eleven month’. As per the advertisement of the scheme, it is the duty of the customer to make assurance about the completion period of the scheme. It is also stated in the terms and conditions shown in Ext. B1 document, that should be ensured each time payment is recorded on the customer card by the customer. It is also directed to submit all receipts showing payment of instalments before opposite party at the time of purchase of gold ornaments. So these terms stipulated in the brochure shows that the opposite party unilaterally imposes certain condition upon its customer without undertaking any reciprocal promise. It is stated on the affidavit of the complainant that ordinary people like the complainant who has joined the scheme will not buy high priced gold jewellery if the price keeps increasing. The opposite party, realising this fact, keeps the deposit amount as long as price continuous to rise and use the fund for his business and thereby cheating the subscriber. It can be noted that from 01/08/2018 onwards the opposite party is keeping the amount deposited by the complainant. Moreover it is also seen that no steps were taken authentically by the opposite party to return the gold ornaments to the complainant. So after evaluating the entire evidences, this Commission finds that there is deficiency of service and unfair trade practice on the side of the opposite party. The act of the opposite party caused damage, mental agony and hardship to the complainant. The opposite party got no right to keep the amount deposited by the complainant for an indefinite period. The opposite party is liable to hand over gold ornaments to the complainant as prayed in this complaint.
14. In the light of the above said findings this Commission allows the complaint as follows:-
- The opposite party is directed to hand over gold ornaments worth Rs. 37,500/- (Rupees Thirty seven thousand and five hundred only) at the rate prevailed on 01/07/2019 to the complainant, who is provided with permission to choose the item and the design of the gold ornaments availed in the shop of the opposite party.
- The opposite party is also directed to pay Rs. 50,000/-(Rupees Fifty thousand only) to the complainant as compensation for mental agony and hardship suffered due to negligence and unfair trade practices adopted by the opposite party.
- The opposite party is also directed to pay Rs. 10,000/- (Rupees Ten thousand only) to the complainant as the cost of the proceedings of the complaint.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the entire amount will carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 31st day of August , 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A14
Ext. A1 : Copy of cash receipt for Rs. 500/- dated 01/08/2018 issued by the opposite
party to the complainant.
Ext. A2 : Copy of cash receipt for Rs. 2000/- dated 15/09/2018 issued by the
opposite party to the complainant.
Ext. A3 : Copy of the cash receipt for Rs. 1000/- dated 08/10/2018 issued by the
opposite party to the complainant.
Ext. A4 : Copy of the cash receipt for Rs. 500/- dated 20/11/2018 issued by the
opposite party to the complainant.
Ext. A5 : Copy of the cash receipt for Rs. 3,500/- dated 27/11/2018 issued by the
opposite party to the complainant.
Ext.A6 : Copy of cash receipt for Rs. 5000/- dated 12/12/2018 issued by the opposite
party to the complainant.
Ext.A7 :Copy of the cash receipt for Rs. 4000/- dated 19/12/2018 issued by the
opposite party to the complainant.
Ext. A8 : Copy of the cash receipt for Rs. 4500/- dated 19/01/2019 issued by the
opposite party to the complainant.
Ext. A9 : Copy of the cash for Rs. 2000/- dated 13/02/2019 issued by the opposite
party to the complainant.
Ext.A10 : Copy of the cash for Rs. 2500/- dated 11/03/2019 issued by the opposite
party to the complainant.
Ext.A11 : Copy of the cash for Rs. 2400/- dated 11/05/2019 issued by the opposite
party to the complainant.
Ext. A12 :Copy of the cash for Rs. 2100/- dated 20/5/2019 issued by the opposite
party to the complainant.
Ext.A13 : Copy of the cash for Rs. 3500/- dated 07/06/2019 issued by the opposite
party to the complainant.
Ext. A14 :Copy of the cash for Rs. 4000/- dated 14/06/2019 issued by the opposite
party to the complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1
Ext.B1 : Brochure of the scheme published by the opposite party revealing the
terms and conditions of the scheme.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
