| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Thursday the 28th day of November 2024 CC.73/2021 Complainant Adarsh Ramabhadran, Tharagathu Veedu, Kavanad. P.O, Kollam - 691003 Opposite Party Malabar Gold Palace Pvt. Ltd, 41/2269, 2270, Malabar Gate, Ram Mohan Road, Calicut – 673004 (By Adv. Sri. Vimal Sankar) ORDER By Smt. PRIYA. S - MEMBER This is a complaint filed under Section 35 of the Consumer Protection Act, 2019. - The case of the complainant, in brief, is as follows:
On 15/03/2021, the complainant purchased a gold chain weighing 07.982gm for his daughter from the opposite party. The price of the chain was Rs. 37, 616/-. For purchasing the new gold chain, the complainant had given an old gold chain weighing 08.30 gm (for a price of Rs. 33,726/-) and also paid an additional amount of Rs. 3,890/-. - The new gold chain got damaged within a day’s usage. The new gold chain was purchased on the assurance of the salesman about its durability. On 17/03/2021 the complainant again approached the opposite party. The complainant asked to replace the gold chain. The opposite party replied that they could take back the gold chain only under the head of old chain and that if the complainant wanted to purchase a new gold chain, then he would have to remit more than 12% making charge and GST in extra.
- The complainant requested the opposite party to repair the gold chain. But they said that it is machine chain which is cut out off from a large roll. So the complainant requested the opposite party to replace the bended portion and attach it with the newly cut portion. For that they demanded making charge more than 3 gms and allied expenses. Since complainant could not afford this, he went back. The complainant prays for compensation.
- The opposite party has filed version. As per the version the opposite party states that the complainant is not a consumer as contemplated under the Consumer Protection Act. The sale of the gold ornaments are subject to certain terms and conditions and the same is printed on the backside of the invoice issued to the customers. As per the above said terms and conditions, the opposite party offers exchange facility without deducting making charge only for unused gold chain jewellery within 7 days of purchase. The opposite party does not provide replacement of customised jewellery and jewellery damaged due to the negligence in handling can only be repaired. The same is specifically stated in the terms and conditions printed on the back side of the every invoice raised by the opposite party and the same is evident from the invoice produced by the complainant along with the complaint. It is specifically stated in the terms and conditions that there is no guarantee for breakage and that the jewellery must be handled with due care. It is also stated in the terms and conditions that the opposite party offers life time maintenance and repair for gold, diamond and precious ornaments and that diamonds, precious stones and gold if added will be chargeable.
- It is pertinent to point out that as a gift, the opposite party gives free insurance coverage provided by the New India Assurance Co. Ltd to its customers on the new gold ornaments purchased from their showroom. The same is valid for a period of 1 year and is subject to the terms and conditions mentioned in the insurance policy. As per the terms and conditions of the insurance policy, the same covers loss or damage to the insured items (gold ornaments) by fire, riot and strike, malicious damage, burglary, theft, snatching and by accidental, external and visible means.
- The opposite party, Malabar Gold Palace Pvt. Ltd is a company which comes under “ Malabar Group” which runs its gold and diamond jewellery retail store at Kozhikode in the name and style of ‘Malabar Gold and Diamonds’. Malabar Gold and Diamonds is one of the largest gold and diamond jewellery retailer globally with over 280 stores spread across 10 countries. ‘Malabar Promise’ include transparent price tag indicating the exact manufacturing cost, stone weight, net weight and stone charge of the jewellery, assured life time maintenance for the jewellery, maximum value for gold when reselling old gold jewellery and zero deduction on exchange, 916 hall marking certifying the purity of gold, IGI and GIA certified diamonds ensuring 28 point quality check of global standards, buyback guarantee, carat analyser to check quality, responsible sourcing and fair labour practices.
- On 15/03/2021, the complainant along with his wife visited the Kozhikode showroom of the opposite party for purchasing a gold chain for their daughter. The sales man in the showroom had shown them the gold chains and the complainant and his wife selected one from different designs available at the showroom. The sales man told the complainant and his wife that the particular model gold chain is a machine rolled chain and as the same cannot be rectified once damaged, it is not suitable for children as there is higher chance for the ornament being damaged due to careless handling. But as they noticed that particular design, the complainant and his wife insisted on buying the same model. As per the requirement of the complainant and his wife, a piece of the machine rolled golden chain weighing 07.982 gms was cut from the big roll and was sold to them as per Invoice No. CLTGS0061585 dated 15/03/2021.
- The complainant and his wife also wanted to sell some gold. It was weighed and the amount was adjusted towards Invoice No. CLTGS0061585 dated 15/03/2021. The complainant paid the balance amount of Rs. 3,890/- and the gold chain was handed over to the complainant and his wife. Insurance certificate was handed over to the complainant.
- On 17/03/2021, the complainant and his wife came to the showroom of the opposite party claiming that the gold chain which they bought for their daughter got damaged and demanded replacement of the chain with a new one. The staff of the opposite party at the showroom examined the chain and it was found that a portion of the chain was crushed. The staff of the opposite party informed the complainant that as per the terms and conditions, there is no replacement for damaged ornaments. Then the complainant required the staff of the opposite party to rectify the damage. The complainant was informed that the machine rolled chain comes in large rolls and the chain is cut from the large rolls as per requirement. He also informed that as the machine rolled chain he bought was crushed, the same could be rectified and the only option was to repair the same by cutting and removing the damaged portion and fixing a freshly cut piece of the chain from the large roll.
- The complainant was told that he would have to pay GST and making charge for the piece of the gold chain to be cut from the large roll of machine rolled chain which is required for repairing the damaged chain. As the complainant was reluctant to spend money on the repair of the damaged gold chain, the staff of the opposite party informed the complainant that he could raise a claim with the insurance company for the damage of the gold chain under the free insurance given by the opposite party. But the complainant was adamant and insisted that the opposite party should repair the gold chain free of cost. The staff of the opposite party told the complainant that they were helpless in the matter and reminded him that as per the terms and conditions there is no guarantee for breakage and that the jewellery must be handled with due care. They also told the complainant that the opposite party offers life time maintenance and repair for gold, diamond and precious ornaments and that diamonds, precious stones and gold if added would be chargeable.
- The allegation contained in the complaint that the gold chain got damaged with a day’s usage, that the sales man of the opposite party told the complainant and his wife that the chain was very durable and would last for a long period, that the staff of the opposite party told the complainant that if he bought a new chain, he would have to pay 12% making charge, that the complainant asked the staff of the opposite party to resolve the issue by cutting a portion from the gold chain roll and attaching it to the damaged chain and that the complainant and his wife sustained financial loss and mental agony etc. are not true.
- The complainant had an option to submit a claim with the insurance company for the damage of the gold chain. The opposite party has no knowledge as to whether the complainant has raised a claim with the New India Assurance Co. Ltd for the damage of the gold chain. The opposite party prays to dismiss the complaint awarding compensatory cost.
- The points that arise for determination in this complaint are:
- Whether the complainant is a consumer?
- Whether there was any deficiency of service or unfair trade practice on the part of the opposite party, as alleged?
- Reliefs and costs.
- Evidence in this case consists of oral evidence of PW1 and Exts A1 to A5 on the side of the complainant and oral evidence of RW1 and Ext B1 on the side of the opposite party.
- Heard. The opposite party filed argument note.
- Point No.1: According to Section 2(7) of the Consumer Protection Act, 2019 consumer means any person who buys any goods for consideration which has been paid or promised or under any deferred payment and includes any user of such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose. In this case, the complainant had purchased a gold chain from the opposite party paying a consideration of Rs. 37,616/- (marked as Exts A1, A2 documents). So there is consideration paid by the complainant. Hence the complainant in this case is a consumer.
- Point No. 2: In order to substantiate the allegation, the complainant got himself examined as PW1, who has deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the tax invoice, Ext A2 is the purchase bill, Ext A3 is the photograph of the chain, Ext A4 is the photograph of the chain and Ext A5 is the Certificate of Insurance. These documents are marked on the side of the complainant.
- The Manager Sales and Service of the opposite party was examined as RW1. He has filed proof affidavit and deposed supporting the contentions in the version. Ext B1, tax invoice was marked on the side of the opposite party.
- The grievance projected in the complaint and in the testimony of PW1 is that, on 15/03/2021, the complainant purchased a gold chain weighing 07.982 gm for his daughter. The price of the chain was Rs. 37,616/. For purchasing the new gold chain, the complainant had given an old gold chain weighing 08.30 gm (for a price of Rs. 33,726/-) and also paying an additional amount of Rs. 3,890/-.
- The new gold chain got damaged within a day’s usage. The new gold chain was purchased on the assurance of the sales man about its durability. On 17/03/2021 the complainant again approached the opposite party. The complainant asked to replace the gold chain. The opposite party replied that they could take back the gold chain only under the head of old chain and if the complainant wanted to purchase a new gold chain, then he would have to remit more than 12% making charge and GST in extra.
- The complainant requested the opposite party to repair the gold chain. But they said that it is machine chain which is cut off from a large role. So the complainant requested the opposite party to replace the bended portion and attach it with the newly cut portion. For that they demanded making charge more than 3 gms and allied expenses. Since the complainant could not afford this, he went back. Therefore the complainant filed the complaint claiming compensation.
- Going by the version and proof affidavit of RW1, it can be seen that, the sales of the gold ornaments are subject to certain terms and conditions and the same is printed on the backside of the invoice issued to the customers. As per the above said terms and conditions, the opposite party offers exchange facility without deducting making charge only for unused gold/diamond jewellery within 7 days of purchase. The opposite party does not provide replacement of customised jewellery and jewellery damaged due to the negligence in handling can only be repaired. The same is specifically stated in the terms and conditions printed on the back side of the and the same is evident from tax invoice produced by the complainant along with the complaint. It is specifically stated in the terms and conditions that there is no guarantee for breakage and that the jewellery must be handled with due care. It is also stated in the terms and conditions that the opposite party offers life time maintenance and repair for gold, diamond and precious ornaments and that diamonds, precious stones and gold if added will be chargeable.
- Manufacturing defect is not alleged by the complainant in the gold chain. Even if it was alleged the complainant was unable to prove the same. He did not even take necessary steps to appoint an Expert Commissioner to examine the damaged chain. So no need to focus on manufacturing defect.
- The question which we will have to consider is whether crush bend was there at the time of purchase of the gold chain. The complainant is not at all alleging that there was crush bend at the time of purchase of gold chain. So there is no dispute with regard to that point.
- The complainant purchased the gold chain on 15/03/2021. On 17/13/2021 itself the complainant came back with the gold chain alleging that there is a crush bend in the gold chain. The complainant wanted to get replacement of the chain. Since no manufacturing defect is alleged and proved the prayer for replacement with a new chain cannot be allowed.
- It may be noted that how the gold chain was damaged is not known to the complainant. In the cross examination, PW1 deposes that he is not sure whether the damage was caused due to the bite by his child.
- During the cross examination of RW1 it has been suggested that the damage increased when the chain was brought inside by the staff of the shop. RW1 replied that they never went with the chain inside. This point was never challenged by the complainant.
- It is clearly mentioned at the back side of Tax Invoice (Ext B1 document) that exchange facility without deducting making charge is available for the unused gold/diamond jewellery within 7 days of purchase. The disputed gold chain is now is a used one. So this clause is not applicable to the complainant in this case.
- Moreover as per the terms and conditions customized jewellery cannot be replaced and jewellery damaged due to the negligence in handling can only be repaired. No cash refund is admissible.
- In this case the complainant is unable to prove that the crush and bend is due to the manufacturing defect. Moreover, bend happening due to the mishandling at the hands of the complainant cannot be ruled out in this case. So what is feasible is repairing. Since the gold chain is a machine cut chain the repair is possible only by cutting a portion from the large roll and joining it with the chain after cutting off the crush bend portion. The complainant was told that he would have to pay GST and making charge for the same. But he was not amenable for that.
- In page No. 3 of the deposition of PW1 it is stated that the opposite party did not inform the complainant about the insurance coverage on the 2 days of his visit. But Ext A5 (Certificate of Insurance) is dated 15/03/2021. It indicates that the complainant got information regarding insurance coverage on the very first day of visiting the opposite parties show room. It is clearly mentioned in Ext A5 document “that the insurance covers loss or damage to the insured items, as specified in the above invoice number by fire, riot and strike, malicious damage, burglary, theft, snatching and by accidental, external and visible means”. It was specified that “insurance attaches only when the jewellery is in the custody of the insured person/spouse/children/parents”. The complainant was neither ready to pay the repair charges nor was ready to avail the benefit of insurance coverage. In page No. 3 of the deposition of PW1, he blames the opposite party for not lodging insurance claim since the opposite party did not suggest him to do so. RW1 in his deposition has stated that the complainant was told about the insurance coverage at the time of sale and also at the time of billing. Moreover ‘Certificate of Insurance’ was handed over to the complainant. So there is no meaning in blaming the opposite party. The policy period was from 05/03/2021 to 15/03/2022 (As per Ext A5 document). The complainant was reluctant to claim the insurance and also was not ready to pay the charges for repair of the gold chain. No unfair trade practice or deficiency in service can be attributed against the opposite party.
- To sum up, it is to be held that the complainant could not prove any deficiency in service or unfair trade practice on the part of the opposite party and consequently the complaint must fail.
- Point No. 3: In view of the findings on the above points, the complainant is not entitled to claim and get any relief.
In the result, the complaint is dismissed. However, no order as to costs. Pronounced in open Commission on this, the 28th day of November, 2024. Date of Filing: 28/03/2021 Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext.A1 – Tax invoice. Ext.A2 – Purchase bill. Ext.A3 – Photograph of the chain. Ext.A4 – Photograph of the chain. Ext.A5 – Certificate of Insurance. Exhibits for the Opposite Party Ext.B1 – Tax invoice. Witnesses for the Complainant PW1 - Adarsh Ramabhadran (Complainant) Witnesses for the opposite parties RW1 Lijeesh. K Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar. | |
