Complainant an employee of the Department of Health of West Bengal Government and during the year September-2008 the op a reputed gold merchant offered some special reduction of the making charges of the gold ornaments and being allured as per order she deposited her one piece of gold bala of 17.250 gm. And one pair of gold earning ring of 4.830 gm to the op for re-designing the same into one gold Kundan Neckless and one pair of gold Kundan ear ring and in total complainant deposited 22.080 gm gold to the op for redesigning the same and the op accepted and assured to the complainant to deliver the newly designed gold ornaments on 01.10.2008 vide Order no. 6G/653 dated 09.09.2008.

          But since 16.09.2008 the complainant suffered from various diseases and she was under treatment of District TB Centre at Biplibi Haren Ghosh Sarani Howrah and also under the treatment of Howrah District Hospital and she was diagnosed gall bladder stone on 17.09.2008.  On 04.12.2008 the complainant was suggested for surgical operation of her gall bladder stone and she was admitted at Swasti Nursing Home at Baguihati Kolkata on 21.01.2009 for operation and on 23.01.2009 she was discharged from the nursing home.  Thereafter the father-in-law of the complainant died on 07.03.2009 and during this period, complainant was seriously ill and she did not take delivery of her gold ornament from the op as on 01.10.2008.

          After recovery from all the troubles for taking delivery of her gold ornaments on September-2009 by paying the re-designing charges she went to the op but op’s representative refused to deliver the neckless to the complainant and advised the complainant to meet with authority of op and thereafter the complainant went to the op 10 to 12 times but no one on behalf of op met with the complainant.  Ultimately on 08.12.2010 complainant sent one letter to op through registered with A/D but op did not reply upon the same and thereafter complainant on 16.05.2012 sent one advocate letter to the op by demanding the gold ornaments.

          Ultimately op replied on 28.05.2012 and assured to deliver the gold ornaments to the complainant on condition to pay extra charges for keeping custody of the same but till this date they did not deliver the same to the complainant and op illegally demanded huge amount for keeping custody of the ornament.  That on 16.06.2012 complainant again sent one advocate letter to the op for their illegal demand or extra charges from the complainant but op kept silent.  So, on 19.09.2012 complainant lodged complaint before Consumer Affair Department regarding this matter and Consumer Affairs Department called the complainant and the op and also his representative on 20.12.2012 against the consumer complaint Index No. 171/CAD-G/12-13 and requested the op to take the matter with their higher authority and submit their views on 09.01.2013 but op failed to do that

          On 30.01.2013 the Consumer Affairs Department sent one letter to the op by requesting him to report before the CA Department within 7 days but op did not comply the same and ultimately CA Department on 04.03.2013 sent a letter to complainant and requested to file a complaint case before this Ld. Forum and accordingly for deficiency in service on the part of op and op is also guilty for unfair trade practice, complainant has filed this complaint for refund of the gold and for compensation.

          On the other hand op by filing written statement submitted that the competent authority of the op for delivery of the materials made contact with complainant at her given address and over phone to remind and request her to take delivery of the ornaments as she ordered.  But inspite of several reminders, she failed and/or neglected to take delivery of those ornaments without showing any cause to the competent authority of op and after more than two years, the said complainant wrote a letter to the competent authority of op claiming her ornaments which the op through its competent authority sent a letter dated 16.12.2010 asking her to take delivery of her ornaments but she never bothered to honour the request of the competent authority.

          Thereafter waiting near about one and half year, op received a letter dated 16.05.2012 from Advocate of the complainant which was completely frivolous and allegations are false.  Against that op replied by a letter dated 28.05.2012 for clarification of the matter and also expressing the readiness and willingness to deliver the ornaments as per the norms and further raised the claim of extra charges for the purpose of keeping the materials of the said Smt Anindita Saha under the care and custody of op for so long period.

          Thereafter complainant visited the said B.B. Ganguly Showroom of the op with a very aggressive mood and asked for her ornaments to be returned to her and she refused to pay any single paisa on any account whatsoever and on the said date when our employees tried to let her understand the situation she misbehaved with them and went away.  Thereafter about three months she again visited the showroom and asked to meet the competent authority and started shouting and quarreling with the employees of the op herein and when she was requested by the competent authority to behave herself properly to have a discussion about the matter, she started threatening all the persons related with the op.

          But subsequently the competent authority of the op received a notice from the Consumer Affairs Department Government of West Bengal, on the basis of the complaint of present complainant on 19.09.2012 on that date one of the employees of the op along with Nabarun Sarkar went to attend the tripartite meeting and placed the opinion and decision of op but after a marathon discussion no positive result was achieved and ultimately the matter ended there.

          But op has admitted that the ornament is still remained under the care and custody of the op herein and reasons for demand of extra charges for keeping the ornament for so long period, op wants to take extra charges is a very legal and legitimate demand made by them and the op has further scope to demand more as per the norms and/or the terms and conditions as written there in the said order sheet but all other allegations are false and op has prayed for dismissal of this case.

                                                  Decision with reasons

          On hearing the Ld. Lawyers of both the parties and also considering the complaint and written version including copy of order being No.6G/653 dated 09.09.2008, it is found that complainant deposited gold ornaments weighing about 22.080 gm for preparation of new ornaments and in the said order date of delivery was 01.10.2008 and after considering that order slip Annexure-A it is found that order is valid for five years from the date of issuing this order when the said order was issued on 09.09.2008.  Then it is found that the said order is valid for further five years that is up to 09.09.2013. 

          So, considering that fact, it is clear that there is no question of limitation for filing this complaint because this complaint was filed on 06.09.2013.  So, it is within time and fact remains op has admitted that after preparation of new ornaments, the said ornaments are now in the custody of the op.  But op demanded the custody charges but complainant is unwilling to pay that and that is the dispute and in this regard after considering argument of the Ld. Lawyer for the op we have gathered that the present op has charged some charge for keeping the article for last five years and for the sake of the argument their claim is considered in that case invariably same may be treated as vault charges.  But in vault huge amount of gold of the op is kept and if we consider the small locker charge of a bank, nowadays it is Rs.500/-, if it is medium, then it is Rs.1,000/- per year and if it is in big locker in size then locker charges is Rs.2,000/- per year and if we consider that rate then we can say for keeping only 22.080 gm of gold big locker is not required and if small locker is required for that op at best can charge Rs.500/- per year for custody charge and to that effect at best Rs.2,500/- may be charged but not more than that.  But at the time of hearing the argument, op’s Ld. Lawyer submitted that gold ornament was not refunded as the said charges was not paid by the complainant.

          Fact remains complainant did not take delivery of the article within time and no doubt it is also fact that she has been suffering from several health problem and due to death of her father-in-law and no doubt she is an employee of State Government and she is unable to take delivery.  But fact remains after recovery of her family trouble she went to the shop but delivery was not given on the ground that they wanted custody charges what the complainant did not pay.  Then it can safely be said that charge for safe custody of the article was not mentioned in any letter to the complainant.  But op has tried to say that they are willing to refund the amount of the gold as on the date of deposit of the gold by the complainant.  But they are not willing to refund the gold.  But they requested the complainant to adjust the value of gold without any further delay as the order slip is valid for five years only and that letter was of dated 18.12.2012.

          So, considering that letter it is clear that op has grabbed the gold and now he wants to refund the value of the gold as per price rate as on the date of deposit and such sort of version of the op in the said letter simply reminds us very old theorization that a goldsmith at the time of making gold ornament of her mother also removes some gold and such sort of fiction is generally heard only in respect of the activities of the goldsmith and gold merchant and in this case though op is willing to refund the gold ornaments.  But they want the charges for keeping the same for five years. 

          But truth is that op never stated so to the complainant by sending letter dated 18.12.2012.  At the same time they did not submit any such proposal before the Consumer Affairs Department who took up the matter.  So, it is clear that they had their no intention to refund the gold at any point of time and op has admitted that complainant wants to get back it.  But op’s version is that complainant misbehaved with their employees but fact is that the customer must not have to misbehave with the shop keeper if shop owner does not misbehave and truth is that op never intended to refund this gold and they tried to refund the proportionate amount of gold on the basis of the market price as on the date of the deposit of the same that means op tried to grab the gold indirectly and all the gold merchants are of such a nature and they offer some deduction etc and being allured the lady at large surrendered their own gold for getting new one and ultimately they are being cheated and deceived by such type of goldsmith and johuree and they are really jahouree and most interesting factor is that such sort of cases are being filed in so many District Forum for un-merchantable activities and conduct of the jahouree like this op and in this present case op’s conduct is unethical and un-merchantable and fact remains this complaint is not barred by limitation as alleged by the Ld. Lawyer for the op and at the same time it is proved that lady being a Government Employee has been harassed by the op on different dates and they have their no intention to handover the gold which is proved from their own letter but in the written statement they have stated that ornaments are in the custody and they want reasonable charges for keeping the same for five years and so that matter shall be decided by the Forum in view of the fact for small locker in the bank Rs.500/- is charged yearly, for medium locker Rs.1,000/- and for big locker Rs.1500 or Rs.2,000/- per year and invariably complainant shall have to pay a total Rs.2,500/- as locker charge to the op and op shall have to handover the entire gold and this decision is made by this Forum after considering the op’s admission in para-4 (IX) at page-7 and considering the above fact we are convinced to hold that complainant is entitled to get back gold after paying of Rs.2,500/- as safe custody charge for five years as assessed by this Forum and no doubt complainant has proved the negligence and unfair trade practice.

          As op has no intention to refund it practically complainant was compelled to file this case before this Forum being requested by the C.A. Deptt. on the ground op did not settle the matter before the Consumer Affairs Department.  So, it is clear that this lady was harassed by the op and ultimately she was compelled to file this complaint for un-merchantable activities of the op.

          In the result the complaint succeeds.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the op.

          Op is directed to handover the gold ornament after receiving safe custody charges of Rs.2,500/- from the complainant within 15 days from the date of this order and if op is unwilling to refund the said gold ornament in that case op shall have to pay present market price as on the date of payment of value of the said gold weighing about 22.080 gm within 15 days from the date of this order and choice is upon the op out of the two relief which shall be given by him to the complainant.

          But it must be complied within 15 days from the date of this order and if op fails to comply the order within 15 days in that case for each day’s delay, op shall have to pay punitive damages @ Rs.500/- per day till full satisfaction of the decree and if punitive damages are collected it shall be deposited to this Forum.

          For causing mental pain and agony and harassment and also for adopting unfair trade practice by the op, op shall have to pay a sum of Rs.5,000/- to the complainant as compensation.

          And to check such sort of unfair trade practice by the op, op is imposed penal damages to the extent of Rs.10,000/- which shall be paid to the present Forum within 15 days.

          Op is directed to comply the order very strictly failing which penal action shall be taken against him by starting a penal proceeding u/s 27 of C.P. Act 1986 and for that reason other fine may be imposed.