Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-93/2017
Balwant Singh s/o Late Gyani Ram
r/o J-3/77A, Khirki Extention,
Malviya Nagar, New Delhi ...Complainant
Versus
Ghai and Sons Jewellers,
Shop No. 8/2482, Bedonpura
(Gurudwara Road), Karol Bagh,
New Delhi-110005 ...Opposite Party
Date of filing: 29.03.2017
Date of Order: 24.06.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. In November 2016, complainant Balwant Singh purchased Neelam stone (natural blue sapphire) of dimension 1/570 x 180 8.8222 x 5000 (hereinafter referred as stone) for ring from OP/ Ghai and Sons Jewellers for a total price of Rs. 49,500/- plus making charges in silver ring of Rs. 1,500/-, apart from Rs. 1,100/- for appropriate rites through priest. At the time of purchase of stone its colour was absolutely blue, it was selected by the complainant in the presence of his companion/friend Sh. Sandeep Kumar Kapoor. Moreover, before using the stone, the OP allowed the complainant to keep it for trial for three days, it was found quite suitable by the complainant. After three days, complainant handedover the stone to the OP, for fixing in the ring and after fixing it in the ring, it was collected by the complainant.
1.2. Immediately, the complainant realized and he has doubt the said Neelam stone delivered in the ring was not same, which was earlier shown and given to him, when he expressed his doubt, the OP assured that it is the same stone; believing his assurance the complainant came back home.
The complainant started using that ring for 2-3 days but it was not found suitable, he apprised his doubt also to his friend, who also felt doubt on the originality of Neelam stone. Moreover, the present stone given was not absolutely blue, it had some white spot. Complainant again visited the OP and requested either change of stone or to refund of purchase price, however, OP assured the complainant to use the ring for some more-time.
1.3. The complainant did not find the ring suitable and took it for its lab testing, which reports that stone has double reflection.
Complainant again went to OP and requested for refund of cost/price of stone or to deliver the original Neelam stone having absolute blue colour, which was actually handed over for trial for three days but OP declined it, rather he gave a contact number to contact that person/priest, who may buy the stone of the complainant. The complainant also tried and contacted that person but he refused.
The complainant again visited the OP shop with request to change the stone, however, OP failed to entertain the request and flatly refused to entertain the complainant. The complainant having no option, he reported the matter to police on 21.01.2017 for which DD no. 24B was registered in P.S. Karol Bagh. However, the OP did not consider even the advice of police. The OP threatened to do whatever complainant likes.
1.4. The complainant used to be a rich man but under adverse situation, his condition became quite miserable even to the extent to maintain his family well, he bought the said ring and stone by borrowing the amount from his friend expecting to improve his condition but because of cheating of OP, his condition has worsened. He also sent and served legal notice dated 20.02.2017 but no result.
1.5. That is why the complaint against the OP to refund price of Rs. 49,500/- along with interest at the rate of 18% from the date of purchase of ring till the date of realization, or in alternate to exchange the stone with the original which was shown to the complainant in the beginning; apart from cost of Rs. 21,000/-.
The complaint is accompanying with the receipt of Rs. 49,500/-, laboratory test report and copy of police report bearing DD no. 24B dated 21.01.2017. Although, complaint mentions about the legal notice, however, no copy of notice was filed.
2. Notice on complaint was sent to OP by different modes, as per track report of speed post, OP had refused the notice, however, no adverse order was passed on that date of hearing. However, subsequently for want of appearance, OP was proceeded ex-parte on 16.10.2017.
3. The complainant was given opportunity to lead evidence, thus he filed his detailed affidavit, it is on the lines of complaint, which has already been narrated in paragraph 1.1 to 1.5. In the evidence complainant also refers legal notice but it was not filed with the evidence even.
4. The case was put to argument, thus, complainant filed his detailed written arguments followed by oral submissions by Sh. Ashok Kumar, Advocate for complainant. Since none was there for OP, being ex-parte, to make the submissions.
5.1. (Findings)- The contention of complainant is considered, keeping in view the documentary record of evidence, the oral narration as well as the statutory provisions of law of the Consumer Protection Act, 1986 since complaint was filed under the provisions of that Act of 1986. The complainant had reported the matter to police of P.S. Karol Bagh on 21.01.2017, it is a detailed complaint which was registered in roznamacha as DD no. 24-B; that complaint narrates entire episode of contemporary period of November 2016 onward in respect of purchase of stone as well as the defect discovered therein. The complaint u/s 12 of the Act 1986 is based on narration reported to the police.
The complainant has proved receipt of stone issued by Ghai & Sons Jewellers in his favour for the stone sold for Rs. 49,500/-, it also bears initials of author of the receipt, the testing report given by Ratnakar’s Gem Testing Lab dated 04.12.2016, opines that there is double refractive in the stone, this report is in the form of certificate. To say, the circumstances established by the complainant are getting support from the documentary record and the same remained unchallenged and un-rebutted for want of contrary evidence by on behalf of OP, who opted to abstain from the proceedings.
5.2. Section 2(f) of Consumer Protection Act, 1986 defines ‘defect’ that it may be a fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any contract. As per the case of complainant, when he bought the stone, it was absolutely blue, he kept in for trial and when he found it suitable. When he returned it to the OP to fix it in silver ring, so that he may use it regularly, however, the stone delivered in the ring was having double refraction or white spot which was not in existence when absolutely blue Neelam stone was purchased by him. The complainant also made attempts by requesting the OP either to replace it with original or return his money/ price, but it did not happen. Therefore, it is a case of ‘defect’ in the goods at it first instance and ‘’deficiency of service’ on second instance when he requested to do needful because of defect in the Neelam stone delivered in place of original. The complainant has established his case of defect in the goods and deficiency of services against the OP.
5.3. The complainant has twin request either for refund of Rs. 49500/- with interest or in alternate to exchange the stone with the original which was shown in the beginning.
This is a case of 2017, it is but natural that OP would not have been keeping the same stone in his shop. Simultaneously, in case the OP is directed to give another Neelam stone in lieu of the return of defective stone, there will be another offshoot of differences, therefore, the alternate prayer is neither feasible nor practicable.
But it would be appropriate to direct the OP to refund price of Rs. 49,500/- to the complainant, accordingly it is held so. The complainant has parted with his money and the purpose for which Neelam stone was purchased was defeated because of the defect in the stone, consequently, he is entitled for interest on the amount he parted with. The interest at the rate of 6% pa from the date of complaint till the realization of amount in favour of complainant and against the OP will meet both ends. Complainant requests for cost, considering his diversified efforts, the cost is quantified as Rs. 10,000/-. However, the complainant will return the defective stone to the OP (without silver ring, since it was purchased separately by the complainant).
6. Accordingly, the complaint is allowed in favour of complainant and against the OP to return/ refund Rs. 49,500/- along-with simple interest @ 6%pa from the date of complaint till realization of amount, apart from cost of Rs. 10,000/-. However, the complainant will return the stone to the OP at the time of return of the amount.
OP will pay the amount within 30 days from the date of receipt of this order and simultaneously complainant will also return the stone to the OP within that period, subject to OP is paying the amount to the complainant. In the present situation both the parties will cooperate with each other in compliance of the directions.
7: Announced on this 24th June 2023 [आषाढ़ 3 , साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
