Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Rajashri Datta/Anjan Banerjee
Date of filing of the case :19.05.2023
Date of Disposal of the case :29.08.2024
Final Order / Judgment dtd.29.08.2024
The pith and substance of the case of the complainant in brief is that the complainant Kakali Debnath purchased one Gold Ring (Anguri) from the OP Manager P.C Chandra Jewellery Apex Pvt. Limited on 04.07.2022 at a price of Rs.28,630/-. After purchasing the same , the colour of the ring became fade. The complainant informed the said matter to the OP No.2, Manager Chandra Jewellery Apex Pvt. Limited which is working under OP No.1 Manager P.C. Chandra Jewellery Apex Pvt. Limited, Kolkata. The OP No.2 advised the complainant to book the same thing to their office and thereafter the OP No.2 would return the said Gold ring (Anguri) in same position on 1st Baisakh that is 15.04.2023 and the OP would further return Rs.1500/- to the complainant . OP No.2 Manager Chandra Jewellery Apex Pvt. Limited R.N. Tagore Road, Krishnagar, P.S. Kotwali, Dist. Nadia agreed to give the same to the complainant. The complainant agreed to the advice of the OP, OP No.2 also agreed to return Rs.1500/- along with a new same quality Gold ring (Anguri) finger ring to the complainant on 15.04.2023. According to the advice to the OP No.2 the complainant deposited the said Gold ring (Anguri) gold ring to the OP No.2 against on 10.04.2023. The complainant went to the office of the OP No.2 on 15.04.2023 when return her Gold ring (Anguri), but the OP No.2 demanded Rs.5630/- from the complainant. The complainant denied to give the same but the OP No.2 did not give the said finger Gold ring (Anguri) to the complainant. The complainant wanted her original gold ring (Anguri) from the OP No.2 but they did not give it to the complainant. The OP No.2 sold a fade colour gold ring (Anguri) to the complainant in lieu of original new colour Gold ring (Anguri). The complainant could not understand the matter at the time of purchasing due to heavy light in the showroom of OP No.2. So, the OPs are liable for selling the said fade colour Gold ring (Anguri) to the complainant. OPs had no right to demand any money from the complainant for returning the said gold ring to the complainant. So, the present case is filed. The cause of action arose on 15.04.2023 to the OP did not give the new Gold ring (Anguri) to the complainant. The complainant , therefore, prayed for an award against the OPs for directing them to give Rs.28,630/- to the complainant, Rs.15,000/- towards harassment , mental pain and agony and cost of the suit.
Both the OPs contested the case by filing W/V wherein they denied the major allegation. The OPs challenged the case as not maintainable on the ground that it is barred by limitation and there is no cause of action. The positive defence case of opposite parties in brief is that the opposite parties are very repudiated company in the market of gold and jewellery industries with certificate of selling articles with hallmark which was issued by Bureau of Indian Standards , Kolkata Branch office , certificate no. HM/C-5190232110 (Valid upto 26.02.2026). OPs always sell hallmark jewellery to the customers . The incident occurred for Krishnagar on 04.07.2022. Opposite parties had sold a gents ring weighing about 4.580 gm to the complainant on 04.07.2022 for Rs.28630/-. On 10.04.2023 the complainant came to the showroom and told that the said ring colour has faded and requested the OPs to check it. The OPs after checking told that sometimes a change in the colour of fade gold ornament may happen and probable reason for the same are as follows:-
If gold jewellery alloy comes in contact of few chemicals like perfume, toilet cleaner then these metals get reacted and change its colour, but the OPs informed and assured the complainant that nothing was happen with the said ring. The OP further pleaded that the OPs offered to exchange the materials despite it was more than 9 months old and already used. As per the exchange policy the OPs buy gold jewellery from customer and give value of gold at the prevailing date (In case of own hallmark jewellery) in the form of advance, then the customer has to purchase a new jewellery against such advanced receipt and has to pay the balance amount if any. A Jewellery price generally contains gold value, making charges and taxes if any . As per point no.7 “once ornaments are sold no refund is possible. Ornaments if not approved, can be exchanged within one week of purchase provided it is unused and in good condition.” As per point no. 8 of terms and conditions :- The company is not responsible for damage, weight loss of jewellery wear and tear , and usage of the ornaments. In this case the complainant has not deposited the OPs within the stipulated period of one week . She visited after a long period of 9 months . As a good gesture and considering the goodwill and reputation of the company, OPs agreed to purchase the said gents gold ring in the form of old gold and issued an advance receipt of Rs.26953/- to the complainant against the said purchase. OPs also assured the complainant that in the ensuing ceremony of 1st Baisakh she would get a new gents ring in respect of which, she would get discount of 15% over the making charge. The complainant confirmed the OPs that she would come again and collect the said ring. Accordingly, a verbal agreement was done by the parties. The OPs also applied Rs.125 per gram off on gold value as per 1st Baisakh scheme. So, the difference amount should be paid by the complainant for Rs.4747/-. The complainant visited the showroom of the OPs on 15.04.2023 but refused to pay any making charge for the new gold product for which the OPs issued advance receipt for Rs.26953/- on 10.04.2023. The OPs are willing to hand over the new gold product subject to payment of value of making charges and taxes on the new gold jewellery. The complainant neither took away the new gold ring nor paid making charges of Rs.4747/- to the OPs. The complainant filed the present case in order to malign the goodwill and reputation of the OPs. The OPs denied the other allegation made out in the complaint. The OPs claimed that the case is liable to be dismissed with cost.
The points of dispute involved in the present case demand for adjudication of the following points for proper adjudication of the case:-
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
It is the admitted fact that the complainant purchased a gold ring from the OPs for Rs.28630/-. After perusing the pleading it stands well established that the complainant is a consumer and the OPs are seller of the said gold ring. Both the parties of this case being complainant and OP No.2 reside within the territorial jurisdiction of this Commission.
The amount of money involved in the present dispute is well within the pecuniary jurisdiction of this Commission.
Having perused the pleadings of both the parties and after considering the argument advanced by the Ld. Advocate for both the parties, the Commission is of the view that the present case is not barred under any provisions of law. Accordingly, point no.1 is answered in affirmative in favour of the complainant.
Point No.2&3.
Both the points have close nexus with each other and as such these are taken up together for brevity and convenience of discussion.
The opposite parties categorically stated in their W/V that the incident had occurred in Krishnagar showroom on 04.07.2022. The opposite parties sold a gents ring of 4.580 gm to the complainant on 04.07.2022 for Rs.28630/-.
Tax invoice for Rs.28630/- in the gents ring from the P.C Chandra Jewellery Apex Pvt. Limited OP No.2.
The complainant further proved the receipt voucher of Rs.26953/-. The OPs further stated in their W/V that is on 10.04.2023, the complainant claimed that the said ring colour has faded and requested the OPs to check . The OPs had accordingly, checked and informed the complainant that sometimes a change in the Commission of gold ornament may happen for different reasons.
From the said pleadings of the OPs in para 8(d) it is crystal clear that the OPs did not deny the specific allegation of the complainant that after purchasing the new gold ring it became fade. The reason cited by the OPs could not be tested by any of the parties . Therefore, the allegation of the complainant that after purchasing new gold ring from the OPs it became faded which led her to raise the grievance against the OPs and as such she wanted to exchange the said gold ring by another new gold ring.
Ld. Defence Counsel argued that there is no scientific test report of any laboratory that it was faded.
The argument is not acceptable because is the settle position of law that an admitted fact need not be proved.
Ld. Defence Counsel also argued that it is the onus of the complainant to get it tested by scientific laboratory as to whether it was faded or not.
Ld. Advocate for the complainant strongly raised objection on the ground that the OPs had admitted that a gold ring might be faded for certain reasons.
After considering the arguments of both the parties vis-a-vis the pleadings of the parties the Commission is of the view that the since the OPs categorically admitted for pleadings that a gold ring might be faded. So the onus is shifted upon the OPs to get it tested in scientific laboratory. That being not so done on the basis of the available material in the case record the Commission reasonably holds that not testing the said ring in scientific laboratory does not vitiate the case and the Commission is in a position to come to a definite conclusion on the basis of the pleadings and evidence available in the case record.
Ld. Defence Counsel further argued that the said gold ring was purchased on 04.07.2022 but it was returned back on 10.04.2023 for more than after 9 months , so the claim is not genuine .
The argument has not sufficient force in as much as the ground cited by OPs in para 8(d), there is no mentioning that the gold ringht may be fade due to passage of time.
It is very hard to believe that a gold of 9 months could fade just because of its use within 9 months .
The further pleadings of the OPs in para 8(e), justifies the claim of the complainant on the ground that the OPs being loyal to customer as well as a good gesture have offered to exchange the material.
If the terms and conditions of the OPs regarding purchase of gold ring is specific then the good gesture or loyalty cannot take the place of specific terms and conditions .
Ld. Defence Counsel further argued that the OP company is very reputed company and the product is not like a normal goods like vest or a pant, rather it is a gold ring.
Mere reputation of a company cannot be just ground to oust the allegation of the complainant because C.P Act does not provide for any relaxation to any reputed company if the allegation alleged of falls within the periphery of the C.P Act.
Ld. Defence Counsel further argued that the company has got Bureau of Indian Standards (BIS) mark and it sells hallmark gold.
The argument is not acceptable because as per the present position of law giving hallmark in gold ornaments with BIS is a sinequanon for selling gold articles.
Ld. Advocate for the complainant argued that the OPs without sufficient reasons demanded Rs.5630/- when he went to bring back the gold ring in exchange of the previous gold ring which was faded due to the fault of the OPs.
It is fact that the OPs categorically admitted that the petitioner visited the showroom of the OPs on 15.04.2023 but refused to pay any making charge on the newly made gold product against which the OPs already issued an advance receipt of Rs.26953/-.
Ld. Defence Counsel further argued that as per the clause 7 and 8 of the terms and conditions the complainant is bound to abide by it.
Clause 7 of the terms and conditions provided for that once ornaments are sold no refund is possible. Ornaments if not approved can be exchanged within one week of purchase provided it is unused and in good condition.
In the instant case the product was returned within 9 months. Despite it is being not within the said period of 7 days the OP company accepted the same therefore, clause 7 cannot be considered to have application at par in the instant case.
As per clause 8 the company is not responsible for any damage weight loss of jewellery due to wear and tear .
The said clause 8 is not applicable because the OPs nowhere stated in the W/V that the said gold ring was damaged or it became weight loss due to usage by the complainant or due to wear and tear.
Ld. Defence Counsel in course of argument drew attention to this Commission in regard to the calculation of Rs.26953/- and the price charged by the OPs.
Ld. Advocate for the complainant raised objection against the said calculation sheet which is filed by the OPs. As per the said calculation sheet without discount calculation is Rs.6190/-. With discount calculation is Rs.4747/-. So, the OPs has given discount of Rs.1443/- only.
Ld. Defence Counsel argued that if the complainant agreed to pay Rs.4747/- then she could take away the said gold ring. The Ops are not taking the price of new gold.
Ld. Advocate for the complainant counter argued that the gold ring became fade due to fault of the OPs and as such the complainant is not liable to pay any extra money for the same.
It is the settled position of law that the onus of proof proved lies upon the complainant to establish a case.
After perusing the pleadings of the parties and evidence in the case record it stands well established that within the 9 months of purchasing the gold ring it became fade. The OPs admitted it but they cited some reasons for getting it fade. So, the onus is shifted upon the OPs to establish the ground for such fading of the gold ring but in the instant case the OPs did not file any petition before this Commission to refer the said gold ring for testing for any scientific laboratory for expert report. Therefore, in the given facts and circumstances of the case there is nothing to show that the gold ring became fade due to the fault of the complainant but the complainant paid the price of the said ornament for a hallmark gold ring along with all taxes including GST, CGST and SCGST. So, the claim of the OPs for further payment of tax cannot be recovered from the complainant.
Ld. Defence Counsel further drew the attention of the Commission that the complainant did not cross examine regarding the calculation of the price charged .
The argument has not sufficient force because in the evidence of the OPs there is no such calculation in the affidavit in chief . It is just a printed copy filed by the OPs .
Ld. Defence Counsel further argued that the complainant answered against question no.23 which goes in favour of the OPs.
As per question no.23 by the OPs the complainant was asked as to whether she was informed that the difference amount was supposed to be paid by you after discount is only RS.4747/-.
The complainant answered it is correct.
Even if the said question is answered in affirmative it does not help the OPs on the ground that the mere an information about the amount charged to the complainant does not show that the complainant agreed to pay the said money.
Ld. Defence Counsel further drew the attention of this Commission regarding question no.35 in cross-examination.
As per question no.35 it was asked “as to how could you come to such a conclusive finding that the OPs sold you a fade colour Gold ring (Anguri) instead of original one.”
The complainant answered that the OPs sold her a fade colour Gold ring (Anguri).
Answer given in cross-examination has a special force. The OPs could not apply to this Commission for testing the said gold ring by any scientific laboratory. That being the position, the answer given by the complainant is very relevant to the allegation against the OPs because OPs admitted that a gold ring may be fade due to the reasons as stated in the W/V but OPs could not prove the defence plea that the said gold ring came in contact with some chemicals for which it was fade.
Ld. Defence Counsel drew the attention of this Commission regarding the evidence of the complainant wherein she did not deny the plea of the opposite parties .
Ld. Advocate for the complainant counter argued that the complainant categorically stated that the OPs did not write to facts in his written statement .
It is fact that the complainant did not categorically denying each and every line of the evidence of the OPs but she stated in a para 9 that the OPs did not write the facts in his written statement.
The rules of evidence clearly laid down that both the parties must prove their respective case. The complainant by oral evidence in the form of affidavit in chief and documentary evidence duly discharged his obligation. So, the onus is shifted upon the OPs to establish the defence case but OPs could not establish through cogent and succinct evidence that the said gold ring became fade due to wear and tear or because of coming in touch with any chemical as per the defence plea.
Thus having assessed the entire oral and documentary evidence of the complainant and the opposite parties vis-a-vis the observation made hereinabove the Commission comes to the finding that the complainant duly proved the case against the OPs . The misdeeds on the part of the OPs against the complainant tantamount to deficiency in service and harassment with mental pain and agony.
Accordingly, point no.2&3 are answered in affirmative in favour of the complainant.
Consequently, the complaint case succeeds on contest against opposite parties with cost.
Hence,
It is
Ordered
that the complaint case no.CC/51/2023 be and the same is allowed on contest against both the OPs with cost of Rs.5,000/- (Rupees five thousand). The complainant Kakali Debnath do get an award for a sum of Rs.28630/-(Rupees twenty eight thousand six hundred thirty) to the complainant towards the value of the said gold ring (Anguri), Rs.10,000/- (Rupees ten thousand) towards deficiency in service , harassment and mental pain and agony, Rs.5,000/- (Rupees five thousand) towards litigation cost. The Opposite parties are jointly and severally liable to pay the said award money . The opposite parties are jointly and severally directed to pay Rs.43630/- (Rupees forty three thousand six hundred thirty) to the complainant within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @10% p.a from the date of passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties free of costs.
Dictated & corrected by me
............................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
........................................
MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
