KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 50/2015

JUDGMENT DATED: 13.07.2023

(Against the Order in C.C. 188/2010 of CDRF, Thiruvananthapuram)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

APPELLANT:

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

                             (By Adv. S. Reghukumar)

                                                Vs.

RESPONDENT:

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

JUDGMENT

SMT. BEENAKUMARY A. : MEMBER

The appellant is the complainant before the Consumer Disputes Redressal Forum, Thiruvananthapuram (District Forum for short) in C.C. No. 188/2010.  The respondent is the opposite party.

2.   Brief facts of the complaint are as follows:- 

Complainant purchased gold ornaments totally worth Rs. 1,15,597.21 from the opposite party which included one chain with pendent weighing 59.490 gms worth Rs. 1,12,133.05.  The pendent attached to the chain broke off from the chain on the third day of purchase. On 09.04.2010 complainant approached the opposite party with the pendent and the chain and they refixed the pendent in the chain and assured her that it will not come out from the chain again.  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. 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 the complaint.

3.  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 costs.

4.  Before the District Forum the complainant had filed proof affidavit and produced 7 documents which were marked as Exts. P1 to P7.  In rebuttal, Senior Executive of the opposite party has filed proof affidavit. 

5.  In this case there is no dispute on the point that the complainant had purchased the gold ornaments worth Rs. 1,15,597.21 from the opposite party on 03.04.2010.  There is no dispute on the point that one of the purchased ornaments is a chain with pendent.  According to the 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 the pendent.  The complainant has alleged that on 04.04.2010 the pendent was detached in Calicut within three days after its purchase.  The opposite party objected the statement and there is no evidence to show that detached pendent was refixed by the opposite party on 09.04.2010 as alleged by the complainant.  As per Ext. P4 document the complainant had purchased two pendents from the opposite party on 09.04.2010.  At the time of cross examination the complainant has admitted that the incident was happened at Veegaland, but in the complaint the incident was mentioned at Kochi.  Ext. P5 document issued by Veegaland Authorities to the complainant acknowledged the receipt of complaint from the complainant.   The opposite party pointed out such inconsistency between the places of incident.  The allegation of the complainant was that due to the manufacturing defect of the chain it was lost.  The District Forum found that if it is of manufacturing defect, the onus of proof 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.  The stand of the opposite party is that in the absence of expert opinion the District Forum cannot come to a conclusion as regards manufacturing defect of the chain. 

6.  Before the District Forum the opposite party had produced 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 any evidence that the vehicle suffered from manufacturing defect.  Opposite party has also produced 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.  According to the opposite party in a Water Theme Park with a number of hazardous puzzles and games it is the duty of the complainant to keep necessary safety of the chain while during hazardous rides.

7.  The District Forum further found that the complainant has not disclosed the place of incident, Veegaland, in the complaint.  But she has admitted during cross examination that the place of incident was at Veegaland.  The finding of the District Forum is that since complainant had alleged manufacturing defect of the chain and the chain is with her, the burden of proof is on her that the chain is having manufacturing defect.  For the above mentioned reason the District Forum found that the complainant failed to establish her case and therefore dismissed the complaint.  Aggrieved by the impugned order the complainant has filed this appeal. 

8.  The appellant stated that the order of the District Forum is wrong, contrary to law and facts of the case.  The District Forum ought to have found that the gold metal is malleable and ductile and the contention of opposite party that the gold metal is fragile ought to have been discarded by the District Forum. 

9.  The appellant argued that the procedure contemplated under Sec. 13(1)(c) of the Consumer Protection Act, 1986 is not applicable in the facts and circumstances of the present case.  They submitted that the principle of res ipsa loquitor applies to the facts and circumstances of the case. 

10.  We have heard the arguments of both sides and perused the entire records on file.  The appellant herself has no idea as to where the pendent was lost.  The appellant stated in the complaint that the pendent was lost at Kochi and during cross examination she admitted that it was lost at Veegaland.  Ext. P5 is the acknowledgment issued by the Veegaland authorities regarding lodging of the complainant with them on 18.04.2010.  The complainant had alleged that on 04.04.2010 the pendent was detached in Calicut and the opposite party refixed the pendent on 09.04.2010, but there is no evidence to prove that contention.  But on 09.04.2010 the complainant had purchased two pendents from the opposite party as per Ext. P4. 

11.  The District Forum found that the complainant did not take any steps to prove her contentions that the ornament has manufacturing defect and due to that reason it was lost.  For that reason the complaint was dismissed. 

12.  The District Forum had considered all aspects and it is a detailed order.  There is no need to interfere with the order.  Therefore we confirm the order passed by the District Forum in C.C. No. 188/2010.

In the result, the appeal is dismissed.  No order of costs.   

AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER                  

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