COMPLAINT FILED:31.10.2008
DISPOSED ON:10.08.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
10th DAY OF AUGUST-2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2343/2008
Complainant | A.Chandrasekharan, “Chandana”, No.772, 60 Ft Road, BEML 5th Stage, Rajarajeshwari Nagar, Bangalore-560 098. In person, V/s. |
OPPOSITE PARTY | M/S NAVARATHAN JEWELLERS PVT. LTD., No.87, 1st Floor, Mahatma Gandhi Road, Bangalore- 560 001, By its Director Mr.Vishal. Advocate:R.Shailesh Kumar, |
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O R D E R
Sri.B.S.REDDY,PRESIDENT
This is a remanded matter. The complaint filed by the complainant was dismissed as per order dt.22.01.2009 holding that the complainant failed to prove the deficiency in service much less unfair trade practice on the part of the OP. Being aggrieved by the said order of disposal the complainant preferred appeal before the Hon’ble State Consumer Disputes Redressal Commission in appeal No.500/2009. The said appeal was allowed, the matter is remitted for fresh disposal after affording opportunity to both the parties to adduce further evidence if any.
2. After the matter was remitted, the complainant filed further affidavit evidence on 15.10.2010. In spite of service of notice, the OP failed to appear hence placed ex-parte.
3. The complainant filed this complaint Under Section 12 of the Consumer Protection Act 1986 seeking directions against the opposite party (herein after refer to as OP) to pay compensation of Rs.50,000/- and 15 grams of gold short received in exchange. It is stated that the complainant purchased the gold necklace studded with precious stone from the OP. Thereafter, he approached the OP for exchanging the gold necklace to gold coins. The OP accepted the said necklace, the weight of the same was 105 grams. Then 10 grams was deducted towards the weight of the stones. Thereafter, the OP instead of giving the gold coin of weight of 95 grams gave Gold coins of only 80 grams with a shortage of 15 grams Gold. The repeated requests and demand made by the complainant to provide him 95 grams of Gold coins went in futile. Hence, the complainant felt the deficiency in service and unfair trade practice on the part of the OP. The complainant filed this complaint seeking relief’s as sated above.
4. The OP denied the allegations made by the complainant in the complaint. It is contended that Gold necklace which the complainant has produced was not of standard 91.6% KDM Gold. After deduction of the weight of the stones, the remaining Gold was taken note of and then the coin based on the value of the Gold were exchanged not with the quantity of the Gold. Thus there is no deficiency in service on the part of the OP. The complaint is devoid of merits. Hence, it is prayed for dismissal of the complaint.
5. Both the parties have filed affidavit evidence earlier after hearing arguments, the complaint was dismissed. After the matter is remitted the OP has not participated in the proceedings. The complainant has filed additional affidavit evidence.
6. The complainant in the additional affidavit and Memo filed stated that he had purchased the necklace from OP on the basis of the following assurance that:
a) They sell only 22 carat gold with BIS Standards 916 quality.
b) If the customers are not satisfied, they can exchange the product without loosing any amount-This also exhibited on the walls of the shop then.
On the basis of this assurance he has purchased the necklace. He had returned the product with original handwritten bill which OP never returned on repeated requests. The said necklace was purchased for their NEW YEARS DAY ‘VISHU’ which falls on 14th April every year. He purchased the unit sometime a day earlier or two i.e., roughly on 12th or 13th of April 2008. It was handwritten bill and not computerized bill.
7. Arguments on complainant side heard. Point for consideration are as under:
Point No.1:- Whether the complainant has
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitled for the relief’s claimed?
Point No.3:- To what Order?
8. We record our findings on the above points:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
9. At the out set, it is not in dispute that on 28.08.2008 the complainant approached the OP for exchanging the gold necklace with a gold coin. The necklace which was weighing 105 grams, 10 grams weight was deducted towards the weight of the stones. After deducting that 10 grams weight towards the weight of stones, the remaining weight of the gold was 95 grams. OP in exchange delivered gold coins worth of the total cost of the necklace given by the complainant. The main grievances of the complainant is the golden necklace was purchased from OP only when the weight of the necklace was 95 grams of gold after deducting 10 grams weight towards weight of the stones, in exchange OP ought to have given 95 grams of gold in the form of gold coins but only 80 grams of gold coins are given hence there is shortage of 15 grams of gold.
10. The defence of the OP is in the month of August-2008, the complainant approached them with gold necklace and sought for exchange of the same with gold coins. Gold coins kept by them are of 91.6% KDM pure quality gold but the gold that is used to manufacture the necklace was not of that standard, it was not of KDM quality. The complainant was made clear that they cannot exchange the said gold with equivalent weight of gold coins, they are exchanging and giving the gold coins on the basis of the value of the gold with respect to the said necklace not with a quantity of the gold as per the weight as it was not KDM pure quality. Thus OP gave gold coins of worth what the complainant was entitled; hence there is no deficiency of service on their part.
11. The Hon’ble State Commission while remitting the matter at Para-6 observed.
The respondent has not produced nay evidence to show that the gold produced by the appellant is of inferior quality. Moreover the said necklace was purchased from the respondent only. The appellant has produced the invoice dt.28.08.2008 for having purchased the said necklace from the respondent which shows that it was a new gold, not old gold. If the respondent is of the opinion that the necklace produced by the appellant is not of standard 91.6% KDM pure quality gold, then it should be blamed to the respondent only for having supplied such quality gold to the appellant.
12. Further it is observed at Para-7:-
The respondent has agreed to exchange with any other product at any point of time, without loosing a gram of gold. Since the respondent has received new gold necklace, it is the duty of the respondent to exchange with new gold after deducting the weight of the stones. Admittedly, the parties were agreed to deduct10 grams towards the weight of the stones. If that is so, the respondent cannot be allowed to enrich itself unjustly.
13.As per Para-6 and 7 of the orders of the Hon’ble State Commission in Appeal No.500/2009 finding has been recorded to the effect that this complainant has purchased the necklace from OP and the same was exchanged for gold coins. OP has not produced any evidence to show that the gold used for manufacture of necklace was not of 91.6% KDM pure quality gold. After deducting 10 grams of weight towards the weight of the stones, the remaining gold weight was 95 grams. OP ought to have delivered gold coins of 95 grams to the complainant. Thus there was shortage of 15 grams of gold, while giving the gold coins weighing only 80 grams to the complainant.
14. From the complaint averments and further affidavit evidence of the complainant, it becomes clear that at the time when he purchased the gold necklace from OP, it was assured that the complainant may not loose any gold in case of exchange of gold at any point of time and the gold which OP sells is only 22 carrot gold, with BIS standards of 91.6% quality, if the customers are not satisfied, they can exchange the same without loosing any amount. The complainant purchased the necklace on the basis of the assurance of the OP. Thus, the necklace which the complainant purchased must have been made of with gold purity of 91.6% KDM quality. After the matter is remanded OP has not participated in the proceedings and filed any further additional affidavit. Therefore, we are unable to accept the defence set up by OP that the necklace which was brought by the complainant for exchange was not of 91.6% KDM pure quality gold.
15.The cash bill produced by the complainant dt.28.08.2008 reveals that the gold necklace which was taken by OP was weighing 95 grams after deducting 10 grams towards weight of the stones, it is clearly mentioned as “new gold set”. OP has not mentioned the purity of the gold used for manufacturing the necklace but the total amount of 95 grams of gold is shown as Rs.95,420/-. The gold coins given to the complainant in exchange of gold necklace is shown as purity 22 carrot gross weight 80 grams, the total amount towards the value of the gold coins is shown at Rs.95,070/-. Thus it becomes clear that OP has not delivered gold coins weighing 95 grams where as the gold necklace was weighing 95 grams which was taken in exchange. 15 grams of gold was short delivered to the complainant. OP failed to produce any material after the matter remitted to prove that the gold used for the manufacture of necklace was not of 91.6% KDM purity of gold. Under these circumstances, we are of the view that the act of OP in short delivery of 15 grams of gold to the complainant amounts to unfair trade practice and deficiency in service. The complainant is entitled for 15 grams of gold from OP along with litigation costs of Rs.2,000/-. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainant allowed in part.
OP is directed to deliver 15 grams of gold of 91.6% KDM purity of gold to the complainant and pay litigation cost of Rs.2,000/- to the complainant within 4 weeks from the date of this Order.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 10th day of August-2011.)
MEMBER MEMBER PRESIDENT
Cs.
