BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^thDAY OF OCTOBER 2024

ORDER

1.SMT. K. ANITA SHIVKUMAR, MEMBER

Complainant filed this complaint under section 35 of Consumer Protection Act 2019, seeking direction to OP to refund sum of Rs.7,00,000/- in total which is paid by complainant towards advance amount on 09/07/2020 with interest at the rate of 24% per annum, to pay sum of Rs.1,00,000/- towards damages / compensation for the mental agony and hardship caused by OP due to its deficiency of service, to pay sum of Rs.10,000/- towards cost of litigation and such other relief.

2. Brief facts of the Case as follows:-

Complainant stated that OP 1 is into business of manufacture and sale of gold ornaments, silver articles, gold and silver coins allied activities. OP is one of the leading jewelerswith reputation and good will in the country. Complainant stated that OP had made extensive advertisement about the gold purchase scheme under the name of “KALYAN MUHURTHA” for general public with attractive offer to buy gold ornaments from OPs outlet throughout the country. The advertisement was made through various public media including print and electronic media, had offered booking of membership under the said scheme with several attractive facilities from buying gold ornaments from prospective customers.

3. Complainant further stated that the said scheme was that the customer had to place order in advance and pay the rate after particular period. The purchaser would be entitled for the benefit of bonus and also can purchase the exact weight of gold which was booked earlier with full payment, at the rate as on the date of actual purchase that is after  9 months or at the rate prevailing on the date of booking whichever is lower. At the time of soliciting the business nothing was stated by OP and there was no booking application with any terms and conditions. But the same personnel would project the scheme in a rosy manner and induced lot of customers including the complainant. The complainant enrolled herself as a member for 2 membership so as to buy multiple gold ornaments from OP under the said scheme on 09/07/2020 by paying Rs.2,25,000/- by way of cheque drawn on Bangalore city Co-operative Bank Limited in chequebearing No.370443 dated 09/07/2020 and bill bearing No.BLJGPOA000361 and another bill bearing No.BLJGPOA000362  dated 09/07/2020 paid through card for sum of Rs.2,80,000/- and sum of Rs.1,95,000/-. OP has acknowledged receipt of payments and issued bill.

4. Complainant further stated that the said 2 memberships was availed by complainant under attractive offer, made by sales executive of OP. OP had also assured that they would intimate the complainant about generating the credit note to the registered mobile number. Complainant waited for intimations regarding the sale of gold ornaments and remittance under the above mentioned scheme along with other assured benefits after 7 months of joining the scheme there was no intimation from OP. therefore, complainant approached OP2 and enquired about the same. OP where not in a position to execute the scheme on the ground of Pandemic Covid-19 till the situation is set right.

5.Complainant waited further and again approached OP requested to sell the Jewelry at her choice. Complainant had made the payment at the rate of Rs.4,638/- per gram on the date of paying amount i.e,09/07/2020 demand but OP demanded to sell jewellary at the market price, as per the gold scheme in the month of October 2022, i.e, after clearance from Pandemic covid-19. OP started giving evasive answers and also refuse to give benefit to the complainant by raising and untenable terms and conditions which is said to have been made in theinvoice which was not informed to the complainant at the time of joining.

6. Complainant alleging that OP has caused deficiency of service, negligent and careless in executing the offers made by them and he also alleged that the amount of Rs.7,00,000/- in total paid by complainant is utilized by OP for their  commercial operation by depriving the complainant from the benefits and offers. Therefore complainant has lost interest in agreed money, assured benefits and also principle amount is obliged with the OP without any benefits. Complainant having no other option, had issued legal notice to OP dated 26/07/2023, OP has reply to the notice by rising untenable contention stating that terms and conditions are mentioned in the invoice. In fact the invoice is given as bill, complainant had no opportunity of payment. OP, in their reply notice dated 08/08/2023 admitted that they are ready to return money from the assured benefit but in the legal notice of a complainant called upon OP to return money of sum of Rs.7,00,000/- along with 24% interest per annum from the date of receipt. OP is indulging in unfair trade practice that they have utilized the money by the complainant for their commercial purpose, directly caused mental agony and hardship due to the unprofessional to unethical attitude of OP. therefore complainant claimed Rs.1,00,000/- towards compensation. When the OP has not complied the claim of the complainant has stated in the legal notice. Complainant with no other option approached this commission, seeking relief as mentioned Supra.

7. Notice sent to OPs 1 & 2 which were duly served on them. OP 1 and 2 represented through their counseland filed statement of objections denied the allegations of the complainant. OPs stated in the version that complainant has made head office and branch office of OP  has different parties as OP1 and OP 2 though they are single entity as OP1 and 2 may be treated as one entity only, represented by its showroom Manager who is authorized to represent for this commission. OPs taken contention that the present case in hand is not maintainable under law and facts. OPs admitted that complainant has joined this schemeof OPs “KALYAN MUHURTHA” Gold scheme on her own, obviously knowing its benefits, clearly mentioned to her not only prior to joining the scheme but in the invoice issued to her. OP also admitted that the issued bill for the receipt of the amount as complainant mentioned in the complaint. OP contends that apart from the terms and conditions mentioned in the said invoices. It is prominentlymentioned with the bold letter that their shall be “No Cash refund/ Coin Purchase” which is pre condition for any customer joining the said scheme. After joining the scheme though complainant was entitled for purchase of any gold jewellary for her choice, approached the OP with request for refund of amount on the ground that due to certain medical emergency she needed refund. Though the OP is not bound to refund the cash as per the terms of the contract, considering the customers interest as a goodwill gesture agreed to refund amount in terms of contract, subject to complainants bank details and request in writing for the same. OP further stated that the reasons best known to the complainant neither approached the OP show room nor given in written request or bank details, Despite the OPs willingness to consider complainants request for refund mainly on the emergency medical reasons.

8. It is pertinent to note that with an oblique motive to harass OP complainant has send us notice through her counsel making unfounded false, frivolous allegations without any truth or substance in the same. As though the OP has stopped the scheme that she was allegedly entitled to seek refund of the cash / amount as alleged contrary to the terms and conditions of the contract, specially signed by the complainant. OP has denied all the allegations and specifically informed that though they were not contractually not available to pay the cash / amount as special case particularly in view of the complainants request that the amount was needed for medical emergency, OP was willing to pay the same subject to provide bank details and also request in a written form. Complainant fails to submit written request and also fails to provide bank details to OP as requested contrarily alleging and shifting the liability on OP is not fair. It is reiterated that OP has specifically restricted refund of the cash or the purchase of gold coin under the said scheme.It is specifically stated that at no point of time OP or any of its representative have ever induced the complainant to join the gold scheme andfurther allegations of non-furnishing of credit note etc, is contrary to fact that OP has furnished invoices. Therefore OP stated that there is no deficiency of service on their part for the whims and fancies of the complainant taken decision and shifted the liability on the OPs is not amounts to any deficiency of service therefore OPs praise to dismiss the complaint with a cost.

9. At this stage complainant filed her affidavit evidence along with supporting 7 documents which are marked as Ex.P1 to P7. Complainant reiterate as she stated in the complaint. In turn to chief Manager of OP2 who is authorized person from both the OPs is lead his evidence by failing affidavit evidence. In support to his evidence he filed 1 document which is marked as Ex.R1. OP also reiterated as stated in the version. Both the parties filed their written arguments. Heard both parties and perused materials on record.

10. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

11. Our answers to the above points are as follows:-

                        Point No.1:- Affirmative.

                        Point No.2:- Partly Affirmative.

                        Point No.3:- As per the final order.

REASONS

12. Point No.1 and 2: These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

13. After perusal of the pleadings in the complaint and version, it is admitted that complainant has paid the amount as stated in the complaint and OP2 has issued bill dated 09/07/2020 for sum of Rs.4,75,000/- in bill bearing NO.PLJGPOA000362 bill bearing No, which is at Ex.P2, in another bill issued by OP2 bearing No.PLJGPOA000361 dated 09/07/2020 for sum of Rs.2,25,000/-, which is at Ex.P3.In total Complainant has paid Rs.7,00,000/- towards the ornaments, in this scheme offered by OPs in “KALYAN MUHURTHA”. As complainant stated in the complaint and the affidavit evidence, it is scheme paid 9 months in advance, purchase gold or after expiry of 9 months. Accordingly, customer had to place the order in advance and pay the rate. After particular period of purchaser would be entitled for the benefit of bonus also can purchase the exact weight of the gold which was booked earlier with full payment, at the rate as on the date of actual purchasei.e, after minimum 9 months or at the rate prevailing on the date of booking whichever is lower. She also stated that on 09/07/2020 complainant has made a payment at the rate of Rs.4,638/- per gram and OP demanded to sell jewellary at market rate as per gold scheme in the month  October 2022. OP has not taken any contention in regard to this above rate of gold and the selling price as in the month of October 2022. As per the terms and condition, Complainant was supposed to redeem the same between 6/3/2021 to 5/5/2021. If she redeem between these days, complainant entitle for bonus o Rs.23,750/- @ 5% of paid amount and she also could purchase gold ornaments at the rate of Rs. 4,638/-. Beyond the 9^th month and 11^th month, she cannot claim the price of gold at Rs.4,638/- and 5% bonus. She stated that OP themselves withdrawn the offer during the Pandemic Covid-19 though it was the period of entitlement for the complainant she was not able to purchase gold jewellary on the ground on pandemic. It I not denied by OP. After the Covid-19 cleared complainant visited OP No.2 showroom but OP has not interested to offer the same offers has made earlier before joining the scheme. Therefore complainant caused legal notice dated 26/07/2023 which is at Ex .P 4, calling upon OPs to refund the amount which she has paid with the interest at the rate of 24% per annum from the date of receipt along with the compensation and sum of Rs.1,00,000/- for the deficiency, negligencyand carelessness by OPs. The legal head of OPs has replied to the legal notice dated 08/08/2023 which is at Ex.P7 denied allegations made by the complainant and  also mentioned that complainant has requested for refund of money paid on the ground of medical emergency, though the cash refund is not permitted under the scheme.Considering the exceptional case of medical emergency OPs are ready to refund the amount which was mentioned in the reply to the notice which is at Ex.P7.

14. The scheme “KALYAN MUHURTHA” was having an objective of purchasing gold ornaments by customers for the marriage purpose who intend to buy the gold ornaments in a huge quantity with savings of money. When the OPs withdrawn the scheme offered by them due to Covid-19 when the complainant was entitled to purchase after 9 months of the scheme, OP nowhere denied the same.It is the fault of the OPs and delayed to get benefit of the scheme.  Complainant deprived by the scheme offer benefitted to her. Here there is no requirement to discuss more about the offer and scheme and the weight or the rate of the gold because of complainant is already sought refund of amount in the legal notice on 26/07/2023 which is at Ex.P4. In the said notice, complainant has not stated anywhere about the refund of the amount on the ground of a medical emergency butin the reply notice of the OP mentioned the same, which is at Ex.P7. OP clearly stated that complainant has sought refund of Rs.7,00,000/- on the ground of medical emergency and also asked to complainant to submit written request along with the bank details of the complainant, but complainant neither provided bank details nor submitted the written request. Therefore OP did not refund the money back.  OP stated in the reply notice and also in the version that even the cash or refund is not permitted under the scheme on oral request of the complainant. The refund is approved on medical ground and OP is ready to refund the amount.“ NO REFUD/NO COIN PURCHASE” Mentioned and acknowledged by complainant by signing on the bill.

15. Since complainant herself has produced reply notice of an OP if she is not claimed refund on medical emergency she could take the contention in the complaint itself or in the affidavit evidence but complainant has not taken any stand with regard to the statement made by the OP in the version. Complainant neither denied the statement of the OP that she claimed refund on medical emergency nor she accepted the same. In such situation, her silence amounts to be an admission. Therefore, OPs contention of refund even beyond the terms and conditions is acceptable. Complainant has paid on the said amount on 09/07/2020 and is supposed to buy her ornaments by the May 2021. But, OPs withdrawal of the scheme due to Covid-19 made her wait till now and obviously caused inconvenience financially and mentally she has paid Rs.7,00,000/- in total with an intention to buy gold ornaments in huge quantity. The OP did not allowed to buy her gold ornaments with benefits of scheme and objective, even in smaller quantity.

It is pertinentto note that without providing any service or supplying any productas they assured at the time of joining the scheme. But even they didn’trefund the huge amount of Rs.7,00,000/- is also not fair on that part. Complainant alleged that the huge amount of Rs.7,00,000/- is utilized for their business operation, made her to wait for a long period of 3 years. OPs caused deficiency of service by keeping the huge amount and also not sent any notices to complainant with regard to OPs are ready to refund the amount. OPs not produced any cogentevidence to prove that complainant has claimed refund of medical grounds at the same time complainant has also not taken any contention or denial about the statement of the OP made in the version and the reply notice that she claimed refund on medical emergency prior to completion of 9 months. Therefore, both are failed to prove their contentions as they made in the version and complaint. Hence OPs are liable for refund of money, might have used the huge amount for their business is unjust and unfair.It definitely amounts to deficiency of service on the part of OPs. OP could transfer the money at least after the receipt on legal notice, keeping silent by replying to the notice, is notenough to demonstrate their goodwill.

16. Complainant claimed Rs.7,00,000/- refund which she has paid and also admitted by OPs. She claimed 24% interest per annum on Rs.7,00,000/- is seems to be exorbitant. Hence she is entitled for interest of Rs.12% per annum of Rs.7,00,000/- from the date of payment i.e. 09/07/2020. She also claims Rs.1,00,000/- towards damages / compensation for the mental agony hardship she suffered, when she also failed deny the contention of the OP. OPs delayed in refunding the amount of the complainant is definitely deficiency of service and are liable for compensation of Rs.25,000/-. OPs not complied the claim of complainant before approaching this commission, made her to incur money on litigation. Therefore, OPs are liable to pay cost of litigation as Rs.10,000/-. On the above reasons we answer point No.1 in affirmative and Point No.2 in partly affirmative.

17. Point No.3: In view of the discussion referred above, we proceed to pass the following:-

:ORDER:

1. The complainant filed under section 35 of the consumer protection act 2019, is here allowed partly.
2. OPs 1 & 2 jointly and severally liable to refund Rs.7,00,000/- to the complainant paid under “KALYAN MUHURTHA” scheme with  interest at the rate of 12% per annum from 09/07/2020 till the date of order.
3. OPs are directed to pay Rs.25,000/- towards compensation of Rs.10,000/- towards cost of litigation within 30 days from the date of order, failing which OPs shall pay interest at the rate of 15% per annum on above award amount from the date of order till its realization.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^THday of October 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;