BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 04th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.198/2015
(Admitted on 15.06.2015)
Mrs. Prescilla,
W/o John Pinto,
Aged about 36 years,
R/at Naithadi House,
Kuria Village, Puttur Taluk,
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
Managing Director,
City Gold, Fashion Jewellery,
K.P. Complex, Main Road,
Puttur, D.K.
…......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri KBR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims she purchased two Gold Stud Drops for Rs.23,416/ from the opposite party as per bill No. G/00231 dated 28.12.2013 with total weight of the product is 7 gms for Rs.23,416/. The stud drops contained fashion stones. The opposite party have collected 19.90 percent of wastage from the complainant and the above amount included the wastage also. The complainant exchanged her gold worth Rs. 26,087/ and opposite party refunded Rs.3,000/ to the complainant. On verification complainant found the two stud drops and found stones embedded in the said stud drops are not show in the opposite parties bill and total weight including the stones is 7 gms. The opposite parties has charged exorbitant 19.9% wastage which is unheard of and thereby cheated complainant of Rs.3,416/ amounting to deficiency in service. Opposite parties is duty bound to show separate weight of the gold in the stones in the receipt and charged rate for the gold separately. Opposite party did not comply with the legal notice. Hence seeks relief claimed in the complaint.
II. Opposite party in the written version claims complaint is barred by the time. The exchange of the gold mentioned in the complaint is admitted. But charging of gold wastage on the stone and cheating of the complainant and charging excess amount of Rs.3,416/ is denied. There is no deficiency in service hence seeks dismissal as he had already paid Rs.3,000/ to complainant on purchase of new gold.
2. In support of the above complainant Mrs. Prescilla filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite party Mr. K.A. Abdul Kareem (RW1) Managing Partner, also filed affidavit evidence and answered the interrogatories served on him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Affirmative
Point No. (iii) : As per the final order.
REASONS
IV. POINTS No. (i): Opposite party claimed the complaint is barred by time. However gold purchased by complainant with opposite party the invoice as per Ex.C1 the Retail Invoice is dated 28.12.2013 and the complaint was lodged on 15.6.2015 hence the compliant is within time. Hence the contention raised by opposite party is rejected. The purchase of the gold and also sale of old gold by complainant as claimed in the complaint are all admitted by the parties. Hence there is a relationship between the parties complainant as consumer and the opposite party as service provider. In view denial of claim of complainant there is live dispute between the parties as contemplated under section 2 (1) (e) of C P Act. Hence we answer point No.1 in the affirmative.
Points No. (ii): Complainant claims the ear stud with stone was purchased by her but opposite party has charged to the entire weight of the 7 gms of the stud drops and did not show the weight of the stone separately. It is the specific case of complainant that she purchased stud drop with stones this aspect has not been denied by opposite party. The retail invoice as per Ex.C1 mentions the gold rate at 2,790/ per gram and the quantity shown as 2 and weight in gms as 7.00 gms stone and in the column to stone weight and the column stone price kept blank and the total weight shown as 7 grams and the rate of gold at Ex.C2 is mentioned at Rs.2,790/ for 7 grams it comes to when we add 19.9% it comes to 19,530+3,710.7=23,240/. But the stone weight and stone price is not mentioned at Ex.C1. Hence it is clear that wastage of 19.9% was added as that is the excess amount at Ex.C1 as the gold purchased by complainant. Opposite party claimed that complainant was informed about 19.9 % wastage at the time of purchase but there is nothing to show about such intimation given by opposite party to complainant.
2. For opposite party in notes of arguments it is claimed stone were minor power like crystals cannot be weighed. This argument cannot be accepted as gold is weighed to a milligram in retail trade. In Ex.C2 as estimates and of complainants argument on exchange of old gold also, as seen Ex.C2 does not mention of stones as of negligible weight. Hence argument on this count is rejected.
3. As such we are of the view that the claim made by complainant of excess amount charged on complainant by opposite party if justified and proved. As opposite party failed to show separate of the weight and value of the stone and instead charged the stone at the rate of gold in the absence of specific material shown by opposite parties on this count the claim for complainant shall be ordered to be refunded of Rs.3,416/ with interest at 9% from the date of legal notice till the date of payment as in not mentioning the weight of the stone separately and in charging on the weight of the stone at the rate of the gold which is in our view is unfair trade practice which amounts to deficiency in service.
POINTS No. (iii): As to opposite partys claim that there is no M.D, if opposite party Firm but only Managing Partner, then appears to be no such reply sent by opposite party to complainants legal notice. Hence the claim by the complainant on this count cannot be rejected.
2. As to claim of compensation awarding a sum of Rs.10,000/ in our view is just and proper. While ordering cost advocate fee fixed at Rs.5000/. Wherefore the following
ORDER
The Complaint is allowed with cost. Opposite party is directed to refund a sum of Rs.3,415/ (Rupees Three thousand Four hundred Fifteen only) to complainant with interest at the rate of 9% per annum from the date of legal notice i.e. 31.12.2013 till the date of payment.
2. Opposite party is also directed to pay Rs.10,000/ (Rupees Ten thousand only) as compensation to complainant.
3. Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).
4. The above amounts shall pay within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 4th May 2017)
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Prescilla
Documents marked on behalf of the Complainant:
Ex.C1: 28.12.2013: Copy of the invoice
Ex.C2: 28.12.2013: Copy of the Estimate
Ex.C3: 31.12.2013: O/c of the regd lawyers notice
Ex.C4: Postal acknowledgement of O.P
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. K.A. Abdul Kareem, Managing Partner
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 04.5.2017 PRESIDENT
