BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 188/2010 Filed on 22.06.2010

Dated: 30.08.2014

Complainant:

 

Saleena Razack, ‘Akshaya’, T.C 19/2194/3, Mudavanmugal, Poojappura P.O, Thiruvananthapuram-12.

 

                               (By adv. S. Reghukumar)

Opposite party:

 

M/s Josco Fashion Jewellers, HNC Building, East fort, Thiruvananthapuram.

 

    (By adv. A. Abdul Kharim)

This C.C having been heard on 06.08.2014, the Forum on 30.08.2014 delivered the following:

ORDER

SRI. G. SIVAPRASAD:  PRESIDENT

The facts leading to filing of the complaint are that complainant purchased gold ornaments totally worth Rs. 1,15,597.21 from the opposite party, M/s Josco Fashion Jewellers, East fort, Thiruvananthapuram, that the purchased ornaments include one chain with pendent weighing 59.490 gms worth Rs. 1,12,133.05, that the pendent attached to the chain broke off from the chain on the third day of purchase, that on 09.04.2010 complainant approached the opposite party with the pendent and the chain and opposite party refixed the pendent in the chain and assured her that it will not come out from the chain again, that on 18.04.2010 while at Kochi complainant was surprised to find that the pendent had again broken off from the chain and had been lost, that it was only due to the manufacturing defect and carelessness from the part of the opposite party, that complainant had suffered a loss of gold weighing 18 gms (the weight of the lost pendent).  Complainant sent notice to opposite party on 21.04.2010 narrating all the details and calling upon them to pay the present market value of 18 gms of gold ornament.  But opposite party did not respond to it.  Hence this complaint. 

Opposite party, on being served, entered appearance and filed its version contending interalia that complainant had purchased gold ornaments worth Rs.1,15,597.21 from the opposite party shop on 03.04.2010 which includes one chain weighing 59.490 gms worth Rs. 1,12,133.05 and one chain ring weighing 1.270 gm worth Rs. 2,354.15, that the chain is so designed in such a way that the chain and the pendent is made as a single piece in a single soldering.  It is not a case that the pendent is attached to the chain separately as in ordinary case.  There is no joining at all and there is absolutely no chance at all of the pendent detaching from chain, in its ordinary course of usage.  Opposite party gives assurance that the ornaments will not get damaged or broken in ordinary course of usage.  The safety of ornaments is certainly a matter to be ensured by the owner who wears it, that the pendent will detach from the chain only if hit or hitch against any sharp or hard objects or if someone tries to forcefully snatch it from the complainant, that on 21.04.2010 complainant made a phone call at opposite party’s showroom and stated that while she was at Veegaland Water Theme Park in Kochi, her pendent was lost and she wanted the opposite party to fix a pendent weighing 18 gm with the chain without claiming any amount for the pendent lost from her, that the pendent was lost while she was using it in a most careless and negligent manner at Veegaland Amusement Park, which had many hazardous plays and game exercises and only when pendent was hit or hitched against any hard objects in a big force, it might have broken and lost from her, that complainant has not lodged any complaint before the local police reporting on the alleged loss which casts a cloud in her entire claim, that opposite party was and still ready to attach the chain with pendent free of cost if she brings the detached pendent along with chain and opposite party is not at all responsible for the loss of the pendent as alleged by the complainant.  There is no manufacturing defect in the making of the pendent and chain as alleged.  There can be no inference of any manufacturing defect in respect of lost goods.  Any question of manufacturing defect can be considered and decided if the good as a whole is produced proved.  Hence opposite party prayed for dismissal of the complaint with cost. 

The points that arise for consideration are:-

1. Whether the gold chain and pendent is having manufacturing defect?

2. If the defects are curable?

3. Whether there is deficiency in service on the part of the opposite party?

4. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P7.   In rebuttal, Senior Executive of the opposite party has filed proof affidavit.  Opposite party has not furnished any documents. 

  Points (i) to (iv):- There is no dispute on the point that complainant had purchased gold ornaments worth Rs. 1,15,597.21 from the opposite party’s shop on 03.04.2010.  There is no dispute on the point that one of the purchased ornaments is a chain with pendent weighing 59.490 gm worth Rs. 1,12,133.05.  According to complainant the pendent had broken off from the chain and had been lost while at Kochi and this was due to manufacturing defect of the chain and pendent.  Complainant’s evidence consisted of her oral testimony and Exts. P1 to P7.  Ext. P1 is the copy of the estimate dated 03.04.2010.  The said Ext. P1 does not mention the name of the purchaser and the name of the dealer.  According to complainant Ext. P1 is the bill in original.  A perusal of Ext. P1 reveals it is an estimate.  The amount mentioned in Ext. P1 is tallying with the amount mentioned in the complaint.  Ext. P2 is the copy of the notice dated 21.04.2010 addressed to the opposite party by the complainant.  Ext. P3 is the acknowledgement card.  Ext. P4 is the estimate dated 09.04.2010.  The said Ext. P4 does not mention the name of the customer and dealer.  The estimate is for Rs. 25208.70.  The estimate is in connection with purchase of 2 pendent.  Ext.  P5 is the acknowledgement tendered by the Veegaland Authorities regarding lodging of the complaint with Veegaland authorities on 18.04.2010.  Ext. P6 and P7 are the photographs.  Complainant has been cross examined by the opposite party.  During cross examination complainant as PW1 has admitted that she had purchased one chain and ring as per Ext. P1.  PW1 has deposed that as per Ext. P4 she had purchased two gold coins.  PW1 has added further that in Ext. P4 it is seen recorded as pendent.  During cross examination PW1 has deposed that the pendent was detached in Calicut on 04.04.2010.  In Ext. P2 it was stated that it occurred on the 3^rd day of purchase.  Opposite party has pointed out such inconsistency.  There is no material on record to show that the detached pendent was refixed by the opposite party on 09.04.2010.  A perusal of Ext. P4 shows that complainant had purchased two pendants from the opposite party on 09.04.2010.  Opposite party denied the refixation of locket as alleged by the complainant.  There is no material to show refixation or to support the same.  During cross examination complainant admitted that the incident was happened at Veegaland, but in the complaint the incident was mentioned at Kochi.  Ext. P5 is the acknowledgement issued by Veegaland authorities acknowledging the receipt of complaint from the complainant.  During cross examination PW1 deposed that the loss was not in the family pool as noted in Ext. P5, but around there.  Opposite party has pointed out such inconsistency between the places of incident.   The very allegation of the complainant is that the purchased chain is having manufacturing defect.  If it is of manufacturing defect, the onus to prove manufacturing defect would lay on the complainant who alleged it. Complainant did not take any expert opinion as regards the ornament or to prove that the incident was due to any manufacturing defect of the ornament nor did she weigh the chain without locket by any expert.  The very stand of the opposite party is that in the absence of expert opinion the Forum cannot come to a conclusion as regards manufacturing defect of any goods.  According to opposite party complainant has not established manufacturing defect of the chain nor did complainant measure the chain without locket by an expert.  Opposite party has relied on the decision of the National Commission in III (2011) CPJ 42 (NC) between Seema Gandhi Vs. Maruti Suzuki wherein the allegation was manufacturing defect of the vehicle.  Complainant did not adduce evidence that the vehicle suffered from manufacturing defect.  No technical expert report produced.  Opposite party has also relied on the decision of the National Commission in II (2012) CPJ 307 (NC) wherein it was held that in the absence of expert opinion court could not conclude the manufacturing defect of the vehicle.  According to opposite party the principle of ‘res ipsa locquitor’ is not applicable in this case as the alleged incident of detachment was occurred not in an ordinary or common place.  According to opposite party in a water theme park with a number of hazards puzzles and games, it is the duty of the complainant to keep necessary safety of the chain while during hazardous rides.  Opposite party has also pointed out that there is a possibility of detachment or damage if the chain is hit against a hard object in a place like Veega Land.  It is pertinent to point out that complainant has not disclosed the place of incident at Veega Land in the complaint.  But she was admitted during cross examination that the place of incident was at Veega Land.  We cannot afford to overlook the stand of the opposite party in the version.  Since complainant has alleged manufacturing defect of the chain and the chain is with her, the burden is on her to prove that the said chain was having manufacturing defect.  Complainant failed to do so.  No expert opinion taken to prove the present condition of the chain and its manufacturing process.  Taking the overall situation and evidence available on record we are of the view that complainant failed to establish her case.  Hence complaint deserves to be dismissed. 

In the result, complaint is dismissed.  Parties shall bear and suffer their respective costs. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of August 2014.

Sd/-

G. SIVAPRASAD                   : PRESIDENT

 

          Sd/-

R. SATHI                      : MEMBER

 

          Sd/-

                                                                        LIJU B. NAIR                : MEMBER

 

 

jb

 

C.C. No. 188/2010

APPENDIX

 

  I      COMPLAINANT’S WITNESS:

          PW1  - Saleena Razak

 II      COMPLAINANT’S DOCUMENTS:

          P1     - Bill dated 03.04.2010.

P2     - Copy of advocate notice dated 21.04.2010

P3     - Acknowledgement card

P4     - Estimate dated 09.04.2010

P5     - Acknowledgement tendered by Veegaland Authorities.

P6     - Photograph

P7     - Photograph

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Joy George

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

 

                                                                                                     Sd/-

PRESIDENT

jb