IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 18th day of September, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C.No.41/2014 (Filed on 01.04.2014)
Between:
Shibu. S. Vayalakath,
(Feelance Journalist),
Saikatham,
Vadayampadi.P.O.,
Choondy, Puthenkurisu,
Ernakulam – 682 308. ….. Complainant
And:
Manager,
Kalyan Jewellers,
Thiruvalla. ….. Opposite party
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite party for getting a relief from the forum.
2. Brief facts of this case is as follows: On 18.02.2013 complainant purchased a bangle having a weight of 8 grams from the opposite party by paying Rs.24,500/- for his wife and she was using it. While so the said bangle was broken after two weeks from the date of purchase. Complainant brought it to the opposite party shop and requested to replace the broken bangle. But opposite party informed that the same can be replaced on payment of an additional amount of Rs.2000/- as the broken bangle would be considered only as old gold. Complainant also joined a gold saving scheme of the opposite party by paying Rs.1000/- on 18.02.2013 itself within short period bangle broken because of its inferior quantity. The denial of the replacement of the bangles by the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant. Hence this complaint for realizing the cost of the bangle Rs.24,500/- and for getting Rs.1000/- deposited in the gold savings scheme with its interest along with compensation of Rs.5,000/- and cost of Rs. 1000/-.
3. Opposite party entered appearance and filed version with the following contentions. According to the opposite party complaint is not maintainable as it was filed without making the opposite party firm or the owner of the said firm as a party. Opposite party is selling gold having 100% BIS 916 purity. So the allegation that the gold is inferior in quantity is baseless.
4. Opposite party further states that the complainant purchased the above said bangle for the use of his wife and the size of the same may not be fit for his wife because he purchased the bangle in the absence of his wife. When his wife tried to wear it by using force it may have caused damage.
5. Opposite party further contented that they always convince the customer with regard to the purity and finishing before delivery of the gold. Complainant in this case also satisfied with the same before delivery. Whenever the customers return the ornaments after using for replacement they will be charged with making charge for the same. Otherwise opposite party will have to suffer huge loss. Opposite party demanded making charge only when the complainant approached opposite party for changing his damaged bangle.
6. Opposite party is ready to give gold worth Rs.1000/- which he had already remitted in the gold scheme. There is no provision to give cash with interest in the gold scheme. More over opposite party is always willing to change the damaged bangle by paying least making charge. With the above contentions opposite party prays for the dismissal of the complaint with their cost.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral testimony of PW1, DW1, Ext.A1 and A2. After closure of evidence, both side were heard.
9. The Point:- Complainant’s case is that he had purchased a gold bangle from the opposite party by paying Rs.24,500/-. After two weeks said bangle was broken because of its inferior quality and the complainant brought it to the opposite party shop for getting it changed. But the opposite party demanded an additional payment of Rs.2000/- as the broken bangle would be considered in the category of old gold. Moreover, complainant joined a gold scheme of the opposite party by remitting Rs.1000/- . The refusal of non-replacement and demand of further making charge and the non-payment of the amount deposited is a deficiency in service which caused financial loss and mental agony to the complainant and hence opposite party is liable to the complainant for the same. Hence the complainant prays for allowing the complaint.
10. In order to prove the case of the complainant, complainant adduced oral evidence as PW1 and two documents were produced which are marked as Ext A1 and A2. Ext. A1 is the estimate for Rs.24,500/- dated 18.02.2013 issued by the opposite party to the complainant. Ext.A2 is the photocopy of pass book of gold saving scheme dated 18.02.2013 issued by the opposite party to the complainant.
11. On the other hand, the contention of the opposite party is that they are selling only BIS 916 purity gold ornaments. So the allegation of the complainant that the gold is inferior in quality is baseless. Complainant purchased the bangle for his wife and he purchased the same without her presence and it may be not suitable in size and when she tried to wear it force has been exerted which resulted in the damage. Opposite party always convince their customers with regard to the purity and finishing before delivery of the same. Complainant also satisfied with the same before delivery. Whenever the customers approached for replacement of ornaments opposite party will charge making charge for changing the ornaments, otherwise huge loss will suffer to the opposite party. Opposite party is ready to give gold worth Rs.1000/- for his remittance in the gold scheme. There is no provision to give cash with interest in the said scheme. Opposite party is always willing to change the broken bangle of the complainant by paying least making charge. So there is no deficiency in service from the part of the opposite party.
12. In order to prove the case of the opposite party, manager of the opposite party filed proof affidavit and he was examined as DW1. There is no documentary evidence from the side of the opposite party.
13. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that parties have no dispute with regard to the sale of the gold bangle or the deposit of money in the gold savings scheme. The dispute is only with regard to the demand of further making charge for the replacement. Complainant’s allegation is that he had purchased a gold bangle weighting 8 grams on 18.02.2013 from the opposite party and on the same day he joined in the gold saving scheme and deposited Rs.1000/- .The said bangle damaged after two weeks from the date of purchase due to its inferior quality and when he approached the opposite party to replace the said ornament with the same weight, opposite party refused to do so, and demanded Rs.2000/- as further making charge. The purchase of the gold bangle is not in dispute and the weight of the bangle is also not in dispute and the opposite party also admitted that after two weeks from the date of purchase of the complainant approached them with the broken bangle. But the contention of the opposite party is that there is no manufacturing defect in the bangle and it is broken due to its mishandling. It is pertinent to note that the gold bangle was hardly two weeks old as it is purchased on 18.02.2013 and admittedly the complainant approached opposite party within in two weeks and therefore their contention that the bangle is broken due to mishandling is unsustainable. In this case, there is no evidence from the side of opposite party to support their contention that the bangle was tampered with and was mishandled which resulted in the damage. Moreover, opposite party has not produced any evidence to prove that their gold ornament is of superior quality. So it is clear that the bangle was broken either due to poor workmanship or due to poor quality. A newly purchased ornament particularly a bangle should not cause any damage immediately. So the attitude of the opposite party in demanding huge making charge for replacing the newly sold ornament and their policy of considering such ornament bangle as old ornament cannot be justified. Moreover opposite party had no case that they have previous acquaintance with the complaint and the complainant is in enimical terms with them. In the circumstance, we don’t find any reasons to disbelieve the complainant. So we are of the view that it is the duty of the opposite party to replace the disputed bangle with another bangle having same weight and good quality.
14. With regard to the second aspect, the return of Rs.1000/- deposited by the complainant in the gold saving scheme of opposite party, the opposite party contented that the complainant can purchase gold worth Rs.1000/- from the opposite party as there is no provision for return of money as per the terms of their scheme. But the 4th clause printed on the pass-book, Ext.A2 issued by the opposite party to the complaint, is as follows: “If the customer opts out from gold scheme before the completion of the period no bonus will be paid and he will be entitled for the invested money only”. Even though there is specific clause for the return of the invested money, why the opposite party neglected to pay the same to the complainant? Therefore, we find that the non-replacement of the broken gold bangle and the non return of the invested money is a clear deficiency in service and unfair trade practice. Hence this complaint is allowable.
15. In the result, this complaint is allowed there by the opposite party is directed to replace the gold bangle with a new one with same weight i.e. 8 grams, having same model and good quality within 15 days from the receipt of this order, and further directed to return Rs.1000/- (Rupees One Thousand only) which he had deposited in the gold scheme along with compensation of Rs.1000/- (Rupees One Thousand only) and cost of Rs.500/- (Rupees Five hundred only). Opposite party is also directed to issue BIS Hall mark certificate with proper bill for the ornament. Complainant is directed to return the broken bangle to the opposite party on compliance of this order by the opposite party. In the event of non-compliance of this order by the opposite party, complainant can retain the bangle and he is allowed to realize a total amount of 7,500/- (Rupees Seven Thousand Five hundred only) with interest at the rate of 10% from today till the realization of the whole amount.
Declared in the Open Forum on this the 18th day of September, 2014.
(Sd/-)
K.P. Padmasree,
(Member - I)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. Sheela Jacob (Member - II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Shibu. S
Exhibits marked on the side of the complainant:
A1 : Estimate of Rs.24,500/- dated 18.02.2013 issued by the opposite
party to the complainant.
A2 : Photocopy of pass book o gold saving scheme dated 18.02.2013
issued by the opposite party to the complainant.
Witness examined on the side of the opposite party:
DW1 : Vinil. A
Exhibits marked on the side of the opposite party: Nil.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- 1. Shibu. S. Vayalakath, (Feelance Journalist), Saikatham,
Vadayampadi.P.O., Choondy, Puthenkurisu,
Ernakulam – 682 308.
2. Manager, Kalyan Jewellers, Thiruvalla.
3. The Stock File.
