Date of Filing: 04.08.2019
Date of Disposal: 17.05.2019
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1.
PRESENT: THIRU.J.JUSTIN DAVID M.A., M.L., : PRESIDENT
TMT.K.PRAMEELA, M.COM., : MEMBER I
THIRU.D.BABU VARADHARAJAN, B.Sc., B.L., : MEMBER-II
CC.No.33/2016
FRIDAY, THE 17th DAY OF MAY 2019
S.P.Nedumaran (48 years)
S/o.P.Palani,
21/9, Prakasam Street,
Vijayalakshmipuram,
Ambattur, Chennai - 600 053. ….. Complainant.
//Vs//
M/s.Ashok Thanga Maligai,
No.2/1, Bazaar Road,
Ambattur, Chennai -53 ……..Opposite party.
This complaint is coming up for final hearing before us on 26.04.2019 in the presence of complainant who has appeared in person and M/s.K.V.Srinivasan & others Counsel for the opposite party and having perused the documents and evidences on both sides, this forum delivered the following.
ORDER
PRONOUNCED BY THIRU J.JUSTIN DAVID, PRESIDENT.
This complaint has been preferred by the complainant under section 11 of the Consumer Protection Act -1986 against the opposite party for seeking direction to refund a sum of Rs.2,673/- to the complainant being the excess amount received from the complainant by the opposite party and to pay a sum of Rs.5,00,000/- towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite party and with cost.
2. The averments of the complaint is brief as follows:-
The complainant purchased a golden Jimikki set, weighing 6 grams and 750 milligrams, by paying a consideration of Rs.17,800/- on 08.01.2016 from the opposite party. When the complainant purchased the above said jewel, the opposite party has assured that the quality is 916 KDM. The meaning of 91.6 KDM is that the gold used in the jewel consists of 91.6% of gold, that is 22 carat. The above said jewel has been tested by the complainant through the authorized testing centre on 13.04.2016, after conclusion of the test, it has been reported that is only 18.66 carat instead of 22 carat, the different being 3.34 carat. For which the complainant has paid on the day of purchase Rs.2611/- per grams the different being 3.34 carat. The opposite party has sold the jewel with 18.66 carat and thereby the opposite party is liable to compensate for deficiency in service by selling inferior quality goods, as per the standards prescribed by Bureau of Indian Standard (BIS) a statutory authority. The complainant caused mental torture and agony due to the inferior standard of gold sold by the opposite party. The opposite party is liable to pay compensation of Rs.5,00,000/-, apart from refund of excess illegal money of Rs.2673/-. Hence the complaint.
3. The contention of written version of the opposite party is briefly as follows:-
The complainant purchased gold jimikki set, weighed 6 grams and 750 milligrams. The opposite party denies that the complainant tested the jewel purchased by the complainant at the authorized testing centre on 13.04.2016. The jewel was sold to the complainant was originally purchased by the opposite party from Prakash gold palace, the authorized whole sale dealer, along with other jewels on 24.01.2015. Each and every jewel will be sent for testing by the person who makes it and it will be certified by the authorized person and will be marked on the jewel ornament. The jewel which was purchased by the opposite party from the dealer, is 22 carat gold. Document No.2, which is filed by the complainant is silent about, which jewel was tested. There is cloud on the testing of jewel, whether the jewel which was tested is one which is purchased by the complainant from opposite party. The opposite party is having the jewellery shop for many years and it is a well reputed shop. There is not even a single complaint filed against the opposite party shop before. This is only complaint filed against the opposite party though the opposite party was never at fault. There is no deficiency of service on the part of the opposite party. There was no complaint. The complainant has not even complained or asked the respondent about the loss suffered. There is no notice issued to the complainant. The jewel which was sold is the one, which was purchased by the opposite party from the whole sale dealer and which was already tested by the dealers. They sold the jewel as 22 carat. There is no deficiency of service and the sale of goods is as per the BIS. The calculation which was calculated is imaginary, which are irrelevant to this case. There is no mental torture and agony suffered by complaint or any inferior standard gold was sold by opposite party. The gold purchased by the complainant was 22 carat gold, which was pretested by Prakash Gold Palace. The value of gold purchased for Rs.17,800/- the complainant alleged that he sustained a loss of Rs.2215/-. But the complainant seeks for payment Rs.5,02,673/- which is baseless highly exorbitant, excessive and is not maintainable. Complainant shall prove that the jewel purchased from the opposite party was duly tested. There is no deficiency of service by the opposite party. The opposite party has acted only as a middle man for the purchase of jewel. The opposite party is only a dealer and not the manufacturer. It is not possible to reduce the quality of gold in a jewel already made. The opposite party was put to mental agony, loss hardship and injury. In the above circumstances it is the complainant who is liable to pay Rs.3,00,000/- towards damages and cost of the complaint. In the above circumstance the complaint may be dismissed with heavy costs.
4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 and Ex.A2 are marked. While so on the side of the opposite party proof affidavit filed as their evidence and Ex.B1to Ex.B4 were marked. Further written argument filed on both sides and also adduced oral argument.
5. At this juncture, the point for consideration before this Forum is:-
(1) Whether there is any deficiency in service on the part of the opposite party?
(2) Whether the complainant is entitled for refund of Rs.2,673/- from the opposite party?
(3) Whether the complainant is entitled for compensation and cost of proceedings from the opposite party?
(4) To what other reliefs, the complainant is entitled?
6. Point No.1 to 3:-
The case of the complainant is that the complainant purchased 91.6 KDM, 22 carat gold jimikki set weighing 6 grams 750 milligrams by paying Rs.17,800/- from the opposite party on 08.01.2016. The complainant tested the above said jimikki with the authorized testing centre on 13.04.2016 and finds that the opposite party has sold jewel of 18.66 carat instead of 22 carat gold and thereby the complainant suffered loss of Rs.2673/- due to the deficiency in service on the part of the opposite party.
7. The opposite party contended that the complainant purchased gold jimikki set weighing 6 grams 750 milligrams. The above said jewel sold to the complainant was originally purchased by the opposite party from Prakash Gold Palace along with other jewels on 24.01.2015. The jewel purchased by the opposite party from the dealer is 22 carat. The opposite party has acted only as a middle man for the purchase of jewel and also the opposite party is only a dealer and not a manufacturer and therefore there is no deficiency in service on the part of the opposite party.
8. It is admitted by both the parties that the complainant has purchased a gold jimikki set weight 6 grams 750 milligrams form the opposite party on 08.01.2016 by paying 17,800/-. Ex.A1 is the copy of receipt issued by the opposite party on 08.01.2016. In Ex.A1 it is written as follows:-
22 carat, 1 pair gold jimikki set, CC.7977, RRN.000639303018, weight -6grams 750milligrams, sold for Rs.17,800/-. Therefore the opposite party sold 22 carat jewels to the complainant. According to the complainant, the opposite party assured that the quality of the gold jewel is 91.6 KDM, but on testing the above said jewel is only 18.66 carat and 77.75 percent and the complainant suffered loss of Rs.2673/- on purchase of above said gold jewel. Ex.A2 is the copy report issued by New National Testing, Chennai-79 dated 13.04.2016. In which it is written as follows:-
“Elements Concentration in % Sample: Hanging
Gold Au 77.75% carat 18.66
Copper CU 16.00% Iridium : IR 0.00%
Silver AG 5.00% Nickel : NI 0.00%
Zinc+others ZN 0.45% TIN : TI 0.00%
Cadmium CD 0.80% other : 0.00%
If any doubts ask for retesting.
The Ex.A2 is also disclosed that the gold jimikki purchased by the complainant from the opposite party is 18.66 carat not 22 carat.
9. The opposite party stated in the written version that the jewels purchased from Prakash gold palace on 24.01.2015 which is 22 carat and the opposite party is only a dealer not a manufacturer. Further, the opposite party contended in his proof affidavit that the opposite party used to sell jewel with logo either PGP or AST, but the alleged jewel purchased by the complainant does not contain the above logo and therefore the above jewel produced by the complainant before this forum for test is not sold by the opposite party.
10. With respect to the above contention of the opposite party, the complainant filed CMP.No.99/2016 to send the jewel to the Bureau of Indian Standard, Taramani, Chennai -113 for test and report. The opposite party filed counter objecting the same and this forum after hearing both the parties is passed an order on 03.03.2017 as follows:-
“In the result, this petition is allowed and directed the petitioner to produce the alleged golden jimikki set before this forum and in turn the said golden jimikki set is ordered to be sealed in the presence of both the parties and to be sent the same to the Bureau of Indian Standard (Ministry of Consumer Affairs, Food &Public Distribution, Government of India), Southern Region) Ground Floor, CIT Campus, IV Cross Street, Taramani, Chennai – 600 113 through the petitioner herein for testing the quality of the said jewel and report. The prescribed fees for the above said testing is fixed by the concerned Authority to be paid by the complainant herein directly to the concerned Authority without fail.”
11. Being aggrieved by the order, the opposite party preferred RP.No.14/2017 before State Commission, Chennai and state commission passed an order on 13.07.2017 as follows:-
“As far as the conclusion reached by the District, we find no error, since there is an allegation about the quality of the gold jimikki, it is correct to send the same for test, which will also help the court to come a just and proper conclusion. The learned counsel for the petitioner/opposite party would further submit that while the gold is tested an opportunity shall be given for the petitioner/opposite party to be present, for which there is no tenable objection by the Respondent/Complainant. Accordingly the District forum is direct to send the gold jimikki for quality test, with a direction to the Bureau of Indian Standard, Chennai-113, to conduct the test in the presence of both parties after giving notice by them to both parties for appearance, specifying the date and time of test. It is also made clear, that for the non-appearance of any of the parties on the date and time fixed by the Bureau of Indian Standard, Chennai-113, they need not to wait and may be permitted to proceed with the test and furnish report.” The jewel was sent to BIS for testing as per the order of the State Commission and the BIS conducted the test and submitted its report.
12. As per report the gold content in the jewel is 784.55 not 91.6.KDM. The above report submitted by Bureau of Indian Standard, is proved that the gold jimikki set purchased by the complainant from the opposite party is not 22 carat and also not 91.6 KDM.
13. The opposite party contended that the complainant has not produced the particular jewel purchased by the complainant from the opposite party’s shop for test. But this forum perused the Ex.A1 receipt and report issued by the Bureau of Indian Standard and finds that the total weight of Golden jimikki purchased by the complainant from the opposite party on 08.01.2016, is 6 grams 750 milligrams and the weight of the golden jimikki tested by the Bureau of Indian Standard is also 6 grams 750 milligrams. Further there is no proof on the side of the opposite party they used to sell golden jimikki with logo mark (PGP) or (AST). Therefore the above contention raised by the opposite party is unsustainable.
14. The opposite party contended that they are only dealer and they purchased the jewels from the manufacturer. Ex.B2 is the tax invoice issued by Prakash gold palace and Ex.B3 is the testing report issued by the Kalaish Testing. In Ex.B2 it is stated that the gross weight of gold is 107.209 grams and there is no proof that this particular gold jimikki was manufacturer by Prakash gold palace. Further Ex.A3 report cannot be relied because there is no signature of the person who tested the jewels in Ex.B3.
15. The opposite party assured to the complainant that the quality of jimikki sold is 91.6 KDM and percent of 22 carat. The opposite party has not denied the same. The complainant tested the jewel and finds that it is only 18.66 carat instead of 22 carat and the above aspect is proved by the Bureau of Indian Standard. The opposite party sold 18.66 carat jewel instead of 22 carat and thereby the opposite party caused mental agony and loss due to the deficiency in service to the complainant. Under these circumstances, the complainant is entitled for refund of Rs.2,673/- and compensation with cost of proceedings. Further with respect of this litigation the complainant paid fee to Bureau of Indian Standard for testing the jewels. Further the above case is filed in the year 2016 and therefore the complainant is entitled for Rs.10,000/- towards cost of proceedings. Thus the point Nos.1 to 3 are answered accordingly.
16. Point No.4:-
In the result, this complaint is allowed in part. Accordingly, the Opposite Party is directed to refund a sum of Rs.2673/- (Rupees Two thousand six hundred and seventy three only) to the complainant being the excess amount received from the complainant by the opposite party. The opposite party is further directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite party and also to pay a sum Rs.10,000/-(Rupees ten thousand only) towards cost of this litigation to the complainant.
The above amount shall be payable by the opposite party within two months from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum on this 17th May 2019.
-Sd- -Sd- -Sd-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 | 08.01.2016 | Invoice for the ornament purchased. | Xerox |
Ex.A2 | 13.04.2016 | Quality check report of the ornament purchased | Xerox |
List of document filed by the opposite party:-
Ex.B1 | ……….. | Visiting card | Xerox |
EX.B2 | 24.01.2015 | Invoice copy from prakash gold palce. | Xerox |
Ex.B3 | 29.03.2015 | Kalash testing | Xerox |
Ex.B4 | ………… | Certificate from commercial tax department. | Xerox |
-Sd- -Sd- -Sd-
MEMBER-II MEMBER-I PRESIDENT
