SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been directed by the appellant, the Manager, Anjali Jewellers, challenging the final order dated 12.07.2022 passed by Ld. DCDRC, North 24 Parganas, Barasat in CC case being No. 28/2021.
The facts of the case in, in a nutshell, are that the respondent/complainant (hereinafter referred to as ‘complainant’) placed an order on 16.03.2020 before the appellant/OP (hereinafter referred to as ‘OP’) for making two number gold rings made of precious stones i.e, cats eye and ruby by paying an amount of Rs.84,000/- in total. On 20.06.2020 the OP delivered the two gold rings made with said precious stones to the complainant. Unfortunately, at the very evening of taking delivery of the two rings one of the stones i.e., cats eye was falling from the ring into the floor and broken into various pieces. The complainant has stated that the price of the ring made with cats eye was amounting to Rs.46,000/- only. Thereafter, the complainant informed the OP and requested them to change the cats eye by a new one and refund the amount since the stone was not of good quality. But the complainant did not receive any positive reply. Thereafter, complainant made a representation on 05.11.2020 to change the said cats eye by a new one or to refund the purchase price. The OP received the representation on 09.11.2020 but did not give any response. Thereafter, the complainant lodged a complaint before the office of Consumer Affairs and FBP Department, Barrackpore Regional Office but the mediation failed. Hence, the complainant has filed the complaint case before the Ld. District Commission, North 24 Parganas praying for direction upon OP to replace the said cats eye with a new one by properly finish and setting into the gold ring of the complainant or to refund the purchase price of Rs.46,000/- with interest 18% p.a. from 16.03.2020 till realization along with compensation of Rs.30,000/- and litigation cost of Rs.15,000/-.
The case was proceeded ex parte before the Ld. DCDRC since the OP did not file any written version. Ld. District Commission allowed the complaint ex parte against the OP. The final order the Ld. DCDRC is reproduced hereinunder:
“That the case be is allowed ex parte against the OP-Anjali Jewellers.
The OP is directed to replace the Cats eye with a new one to the complainant within one month from this date, failing which the OP is to refund the purchase price of the Cats Eye to the complainant within one month from this date. In default, the complainant may take steps according to law.”
Being aggrieved by and dissatisfied with the above order, the appellant/OP filed the instant appeal on the ground that Ld. Trial Commission has failed to consider that the respondent/complainant wrongly claimed and misguided the Ld. DCDRC by giving false information that two gold rings made of precious stones and one of the stones i.e., cats eye was falling from the ring and broken in various pieces on the same day of purchase. But the respondent/complainant made representation on 05.11.2020 a long period. The respondent has failed to provide any document towards broken cats eye. Therefore, the respondent/complainant has suppressed the material facts. The complainant/respondent has not informed the OP appellant immediately after the incident. It is evident that the quality and hardness of the stone is 7 MOHS scale. Ld. DCDRC has failed to consider that there is no infirmity or defect in the ring as has been alleged by the complainant/respondent.
Hence, the appellant has prayed for allowing the appeal by setting aside the order dated 12.07.2022 passed in CC case No. 28 of 2021 passed by North 24 Parganas, Barasat.
In course of argument, Ld. Advocate for the OP has submitted that the most severe error in passing the direction in favour of the complainant is that the invoice under which the complainant has made the purchase from the showroom of the OP on 20.06.2020 contains specific and categorical terms and conditions constituting a binding contract between the parties which governed the transaction in entirety. The said terms and conditions were provided to the complainant at the time of purchase, but the complainant has suppressed the terms and conditions and the return policy. There was a return policy available to the complainant. The complainant has suppressed the following terms and conditions of sale which appears on the invoice relied upon by the complainant.
Terms and conditions:
(General)
Customers are requested to kindly check the ornaments while purchasing them, for any manufacturing defects. Once the jewellery is taken out of the shop no complaints regarding manufacturing defects will be entertained. If there is any complaint regarding manufacturing defect after purchase, then it will be the organization’s role discretion to accept it or not.
The respondent/complainant has also suppressed the fact there existed return policy under the Terms and Conditions of Sale conspicuously appearing on the reverse of the invoice he has himself relied upon. The relevant clauses of the return policy are set out below:-
“3. Return policy
If ornaments are exchanged within 2 (two) days of purchase without being used, tampered, altered, broken, mkishandled, full credit for Gold & Making Charges will be given against any Gold/Diamond Jewellery purchased.”
“12. The Company will not be responsible or shall not be held responsible if any Jewellery/Articles is broken, damaged or the polish of the Jewellery/Articles gets tarnished once the Jewellery/Articles has been sold to the customer and the Jewellery/Articles is in the custody, possession of the customer.”
Therefore, there was an option available to the Respondent/Complainant to return or exchange the item within the period of time mentioned in the Sale Contract. Even when he has alleged that the incident occurred on the day of purchase he has voluntarily chosen not to avail of return or exchange policy.
He has further submitted that the instant consumer complaint was filed to override a sale contract and to circumvent the consequences of the breach and/or negligence on the part of the complainant himself. The record shows that stone got damaged due to misuse and/or rough use of the stone. The order is passed without showing any cogent reason. Moreover, the Ld. Advocate for the OP has stated that on 04.01.2022 the complaint case was fixed for ex parte hearing. The Hon’ble Supreme Court in suo motu writ petition 3 of 2020 has been pleased to waive the limitation period from 15.03.2020 to 29.05.2022. Since the date was fixed for filing written version within that period, he has submitted before us to give them opportunity to file their written version before the Ld. DCDRC by remanding the case.
Ld. Advocate for the complainant has submitted that the complainant has purchased two gold rings made of precious stones on the basis of the assurance of the OP. The complainant has informed the OP after the incident but the OP failed to take any positive steps. After receiving the representation also, the OP did not respond. In spite of receiving the notice, the OP did not appear before the Ld. DCDRC and ultimately the case was fixed ex parte. The cats eye from the gold ring fell down on the very evening of the 16.03.2020 i.e., on that very date complainant purchased two gold rings with the precious stone and the cats eye was broken into various pieces. The report filed with the appeal by expert agency, namely, Diamond and Games Laboratory, America is not tenable in the eye of law. Therefore, he has prayed for direction upon OP to replace the same and refund the amount of Rs.46,000/- and compensation. .
Upon hearing the parties and on perusal of the entire materials on record, it is admitted fact that the complainant purchased two precious stones, namely, cats eye and ruby on 16.03.2020. The complainant purchased two gold rings with the precious stones on 20.06.2020. The tax invoice dated 16.03.2020 and the tax invoice dated 20.06.2020 have been annexed in the record. It appears from the record, that the complainant has first informed the OP about the broken cats eye on 05.11.2020 whereas the complainant has alleged that on the very date of delivery of the gold ring with the precious stone cats eye, the cats eye was broken into various pieces. The complainant has not contacted with the OP immediately after the purchase, though the incident took place on the same date of purchase. The complainant was supplied with the terms and conditions of purchase. Though there is a clause for exchange within two days of purchase, the complainant ought to have contacted with the OP within the stipulated time since the cats eye was broken into prices on the date of purchase itself. The Ld. DCDRC has not passed any order towards obtaining the broken cats eye as evidence before the Ld. DCDRC. Moreover, the Ld. DCDRC ought to have sent the broken cats eye to the laboratory following the section 38(2) (c) of the CP Act, 2019. The Ld. DCDRC has passed the order on the basis that there is no misuse by the complainant for what reason the cats eye was broken. The complainant has alleged there is defects in goods. Whether there is defect in cats eye or there is any defect in setting the cats eye in the gold ring, it cannot be proved from the documents filed by the complainant. Therefore, it is a fit case for remand to the Ld. Trial Commission and Ld. DCDRC is requested to follow the provision of Section 38(2)(c) and 38(2)(d) of the CP Act, 2019 to adjudicate the matter properly.
Moreover, it is pertinent to mention that since the case is remanded back to the Ld. DCDRC, the OP/appellant should be given a chance to contest the case by filing the written version before the concerned District Commission since the case was fixed ex parte in the limitation period as prescribed by Hon’ble Apex Court [as per order of Hon’ble Apex Court vide order passed in MA/21/2022in MA No. 665 of 2021 in Suo Motu Writ Petition (civil) No.3 of 2020, In Re: Cognizance for Extension of Limitation].
In view of above discussion, the final order dated 12th July, 2022 passed in CC/28/2021 is hereby set aside.
Accordingly, the case is remanded back to the Ld. DCDRC, North 24 Parganas, Barasat as per observations mentioned in the judgment.
The Ld. DCDRC is requested to restore the complaint case being No. CC/28/2021 in its original file and number and to proceed with the case as per law.
The parties are directed to appear before the Ld. District Commission on 23.02.2024.
The OP/appellant is directed to file the written version before the District Commission on the date of appearance upon serving the copy to the complainant/respondent.
The appeal is, thus, disposed of, accordingly.
Let a copy be sent to the concerned Ld. DCDRC, North 24 Parganas, Barast.
