Date of Filing      : 16.02.2023
                                                                                                                 Date of Disposal : 26.06.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                .…. PRESIDENT
                 THIRU.P.MURUGAN,  M.COM.,ICWA (Inter),B.L.,                                                ......MEMBER-II

CC. No.19/2023
THIS MONDAY, THE 26th DAY OF JUNE 2023

Mr.Thillaigovindam,
S/o.M.G.Ramalingam,
No.49, Rajiv Gandhi Street, CRPF Camp,
Avadi, Chennai, Tamil Nadu.                                                                   ……Complainant. 
                                                                                 //Vs//
M/s.Kamadhenu Jewellery,
Rep. by its Manager, Avadi Branch,
No.23, Nehru Bazar Road,
Avadi, Chennai.                                                                                     …..opposite party.
 
Counsel for the complainant                                      :   M/s.A.H.Srikanth, Advocate.
Counsel for the opposite party                                  :   exparte
                        
This complaint is coming before us on various dates and finally on 06.06.2023 in the presence of M/s.A.H.Srikanth counsel for the complainant and the opposite party was set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY THIRU.P.MURUGAN, MEMBER-II

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in delivery of jewels against payment made through installments along with a prayer to direct the opposite party to pay a sum of Rs.1,42,123/- with 9% interest from the date the complainant started the scheme and to pay a sum of Rs.5,00,000/- towards compensation for mental agony suffered by the complainant along with cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
The complainant has entered into three Smart Gold scheme with the opposite part who is a jeweler on 04.03.2018 with subscription of Rs.1,000/- for two scheme and Rs.10,000/-for one scheme.  Due membership cards have been allotted vide AVGJP-5737 and AVGJP-5738 and Group membership No.938 in the name of his wife and daughter with maturity date ending on 22.12.2020.  Although the complainant’s wife expired on 13.07.2021, the savings installments which were ended as on 22.12.2020 were matured and ready for encashment since the complainant is the nominee in all three schemes.  The complainant as on 16.06.2022 has selected a HARAM a jewel from the opposite party and in proof of his order an order advance receipt was received.  The contention of the complainant is that though he has ordered a jewel based on his savings the same jewel was not delivered and the opposite party has not responded to his legal notice dated 04.01.2023.  His prayer is to get back the amount of Rs.1,42,123/-paid in the scheme with 9% interest and a compensation of Rs.5,00,000/- for the unfair trade practice done by the opposite party.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A6. Inspite of sufficient notice and opportunities the opposite party did not appear before this commission and hence was called absent and was set exparte on 20.04.2023 for non appearance and for non filing of written version within the mandatory period as per the statute.
Points for consideration:
Whether the claim of the complainant is rightful?
If so to what reliefs the complainant is entitled?
  Point No.1&2:-
The following documents were filed on the side of complainant in support of his contentions;
Membership card No.AVGJP 5737 in the name of complainant’s daughter was marked as Ex.A1;
Membership card No.AVGJP 5738 in the name of complainant’s wife was marked as Ex.A2;
Membership card No.938 in the name of complainant’s wife and daughter was marked as Ex.A3;
Death certificate of complainant’s wife was marked as Ex.A4;
Order Advance Receipt issued by the opposite party dated 16.06.2022 was marked as Ex.A5;
Legal notice issued by the complainant to the opposite party dated 04.01.2023 was marked as Ex.A6;
Heard the oral arguments and perused the written arguments filed by the complainant along with other pleadings and materials.
Although the complainant has paid all the three savings schemes installments in full which has maturity value of Rs.1,42,123/-only and the value available in total does not match the value of the jewel he has chosen to buy.  There is a vast difference of value to be settled for the purchase of the jewel as per the document No.5 i.e., Order Advance Receipt dated 16.06.2022.  The question here is whether the complainant was ready to settle the balance amount apart from the proceeds available on the scheme amount or does he wants the jewels for the said paid scheme amount of Rs.1,42,123/- or is there any other option motivated by the opposite party to release the jewels by settlement of total amount?
Since it involves value of jewel, savings so far by the complainant, and the balance amount to be settled, that too for a commodity which does have every day appreciation i.e. Gold rate. The settlement of bill for the new value counts and the result in release of jewel on that rate only.
It is a unique case where the complainant has joined a scheme based purchase plan and completed the entire installment of savings which accrued a value Rs.1,42,123/- where as he has chosen a jewel weighting 40gms which is worth Rs.2,35,804.08/- including GST.  This value is based on the prevailing gold rate of Rs.4755/- per gram of gold.  The total value is higher than the complainant’s savings value of Rs.1,42,123/-.  The question arose in this case is that the complainant has put forth that the seller of the jewel did not deliver the jewel and it is the main allegation, when the value is higher than the savings held by the complainant there is no chance of release of jewel by the seller.  There is no communication on the balance to be settled / paid by the complainant on the purchase of jewel.  The invoice of buying the jewel by settling the entire price would have settled the issue.  But here it is not settled.  Now the complainant has the amount paid through the scheme value of the jewel based on the order advance receipt issued by the opposite party in his receipt dated 16.06.2022 is on higher side and the opposite party does not sell the same jewel for a below price or for the total savings accrued on the scheme.  In short, the complainant has to buy it on the rate specified by the seller on agreed terms and price at the prevailing rate of gold on such date.  The complainant claim of jewels were not delivered to him even after the saving scheme is fully subscribed shall not stand good.  Either the complainant has to pay the balance amount as per the order advance receipt dated 16.06.2022 or if not interested shall get back the amount paid through scheme with whatever interest payable by the opposite party on cancellation of the scheme or to take jewel to the value available in credit.  Here the complaint does not stand good since the value in full for the jewel is not settled and only part of it is in credit / available.  Even if the complainant prefers to settle the issue of value of the jewel as on date, the opposite party may not be in a position to settle on the rate prevailed as on 16.06.2022 since the gold rate differs day by day. Thus this point is answered accordingly.
In the result, the complaint is disposed as though no deficiency in service or unfair trade practice is proved against the opposite party and in the interest of complainant and the Consumer Protection Act, 2019 being a Social Welfare Legislation, we direct the opposite party to deliver jewel of complainant’s choice for the value so far accrued in the jewel account No.AVGJP-5737, AVGJP -5738 and Member Ship Card No.938 within two weeks from the receipt of copy of this order and no Compensation and no cost as it is.

Dictated by the Member-II to the steno-typist, transcribed and computerized by him, corrected by the Member-II and pronounced by us in the open Commission on this the 26th day of June 2023.

 

            Sd/-                                                                                                                 Sd/-

       MEMBER-II                                                                                                   PRESIDENT

List of document filed by the complainant:-

Ex.A1 ................ Membership card No.AVGJP 5737 in the name of complainant’s daughter. Xerox
Ex.A2 .............. Membership card No.AVGJP 5738 in the name of complainant’s wife. Xerox
Ex.A3 ................ Membership card No.938 in the name of complainant’s wife and daughter. Xerox
Ex.A4 ................ Death Certificate of complainant’s wife. Xerox
Ex.A5 16.06.2022 Order Advance Receipt issued by the opposite party. Xerox
Ex.A6 04.01.2023 Legal notice issued by the complainant to the opposite party. Xerox

 

    Sd/-                                                                                                                         Sd/-
MEMBER-II                                                                                                          PRESIDENT