Tripura

StateCommission

A/15/7

Smt. Jhuma Datta Chowdhury - Complainant(s)

Versus

P.C Chandra Jewellers & Others. - Opp.Party(s)

Mr. S.K Bhowmik, Mr. B.Debnath

24 Apr 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/15/7

 

Smt. Jhuma Datta Chowdhury,

W/O : Sri Dhiman Debbarma,

R/O : East of Bhagaban Thakur Chowmuhani,

North Banamalipur, P.O-Agartala H.O.,

P.S-East Agartala, Dist. West Tripura.

                  ….    ….    ….    ….    Appellant.

                   Vs

1. P.C.Chandra Jewellers, Agartala Branch,

Represented by its S/A. Sri Jayanta Chakraborty,

60,HGB Road, Paradise Chowmuhani,

P.S-West Agartala, Dist. West Tripura.

 

2. The Managing Director,

P.C.Chandra Jewellery Apex(Pvt.)Ltd.,

Registered Office : P-37A,CIT Road, Kolkata-700014.

                ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellants    :      Mr.S.Kar Bhowmik,Adv. & Mr.B.Debnath,Adv.

          For the respondent   :      Mr.R.Dasgupta,Adv. & Mr.P.Basu,Adv

                                       

Date of Hearing         :   24.04.2015. 

Date of delivery of Judgment  :

             

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 18.02.2015 by the appellant-Smt. Jhuma Datta Choudhury under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 16.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-94 of 2013 whereby the Ld. District Forum dismissed the complaint filed under Section 12 of the C.P.Act, 1986 being devoid of any merit.      

2. The case of the petitioner as narrated in the memo of appeal, in brief, is that on 25.01.2011 the appellant purchased a 22k gold ornament (single line Mangal Sutra) weighing 8.090 gms. for Rs.17,479.95/-from the showroom of the respondent No-1 and on 15.03.2012 the appellant accompanied by her husband visited the sales centre of the respondent No-1 and handed over the Mangal Sutra for some minor repairs and on 27.06.2012 the husband of the appellant collected the Mangal Sutra after paying Rs.120/- as repairing charges and after returning home, the appellant on inspection discovered that the original colour of the Mangal Sutra had been changed and it does not look like a Mangal Sutra made of gold.                                                   
3. It has also been stated that on 10.08.2012 the appellant and her husband could make it convenient to visit the showroom of the respondent No-1 and handed over the Mangal Sutra for restoration of its original colour as the respondent No-1 assured the appellant that they would restore the original colour, but the appellant after several visits to the showroom of the respondent-opposite parties could not get the Mangal Sutra returned and finding no alternative, the appellant on 22.02.2013 served a legal notice upon the respondents-O.Ps for replacement of her damaged Mangal Sutra with a new one of similar weight and colour, but having received no response from the respondents, the appellant being the complainant lodged the complaint before the Ld. District Forum,West Tripura, Agartala. It has also been stated that the respondents appeared and contested the complaint by filing written statement denying the claim of the appellant and asserting that the repair-work was done properly and that the Mina colour does not contain any guarantee, being the same delicate and temporary in nature. It has also been stated that the Ld. District Forum considering the pleadings of the parties and evidences on record passed the impugned judgment dismissing the complaint.               
4.  That being aggrieved by and dissatisfied with the impugned judgment, the complainant as appellant has preferred the instant appeal on the grounds that the Ld. Forum failed to appreciate that the instant case is a case of deficient ‘post sale’ service or ‘after sale’ service, that the Ld. Forum totally overlooked the deposition of O.P.W.1 to the effect that the disputed ornament was sent to Kolkata for joint and Mina repairing, that the Ld. Forum failed to appreciate that the repairing of the joint of any ornament made of gold requires application of heat and pressure and justifies the claim of the complainant that her ornament was damaged owing to such repair, although the ornament was, in fact, given to the respondents for repair of joint, but the Mina-colour was damaged by the respondents during the course of such repair, that the respondents being failed to restore the original colour and glaze of the ornament after repair has become negligent and deficient in service for which they are liable to pay compensation to the complainant-appellant, but the Ld. Forum erroneously dismissed the complaint by the impugned judgment and therefore, it is not sustainable in the eye of law and is liable to be set aside by allowing the appeal.            

   

 

Points for consideration.

5.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether the judgment under challenge in this appeal should be set aside as prayed for by the appellant.      

                         Decision with Reasons.

6.  Both the points are taken up together for the sake of convenience and brevity.
7. At the outset, it is found necessary to mention that the learned counsel for the respondents in course of hearing submitted a brief note of argument along with the photo copy of the cited case-laws. On the other hand, the learned counsel for the appellant filed an internet generated information regarding the Art of Minakari.
8. The learned counsel for the appellant-complainant submitted that the purchasing of a gold ornament (single line Mangal Sutra) including Mina coated locket weighing 8.090 gms., purity 22K on payment of Rs.17,479.95 from the respondent-O.P. No-1 on 25.01.2011 by the appellant-complainant is an admitted fact. He also submitted that the deposit of the said Mangal Sutra with the O.P. No-1 for some minor repairs for an amount of Rs.120/- as repairing charges on 15.03.2012 by the complainant is also an admitted fact. He also submitted that taking back the said Mangal Sutra after repairing-work from the Sales-centre of the O.P. No-1 on 27.06.2012 on payment of repairing charges of Rs.120/- to the O.P. No-1 by the husband of the complainant is also an admitted fact. He clearly admitted that there was no guarantee from the side of the respondents-O.Ps concerning the colour of the Mina coated over the locket of the Mangal Sutra of the complainant at the time of the purchase of the same on 25.01.2011.
9. The learned counsel for the appellant also submitted that the complainant and her husband both are judicial officers and posted in different places of this State of Tripura in connection with their job. He also submitted that the husband of the complainant, Dhiman Debbarma when handed over the said Mangal Sutra to his wife (the complainant) after returning home taking back the repaired Mangal Sutra from the showroom of the O.P. No-1,, it has come to their notice that the original Mina colour coated over the locket has been faded or damaged and thereafter, the complainant and her husband on 10.08.2012 again visited the sales centre of the O.P. No-1 and brought the said fact to the notice of the staff of the O.P. No-1 and at this, the staff of the O.P. No-1 assured them that the original Mina colour of the locket would be restored, but ultimately the O.P. No-1 could not restore the original colour and glaze of the Mangal Sutra to its original position as promised.  
10. The learned counsel for the appellant also submitted that the original Mina colour covering the locket has been damaged at the time of repairing-work due to the negligence and deficiency in service on the part of the O.Ps. He also submitted that thereafter, the complainant has been compelled to serve a legal notice upon the O.Ps, but in spite of that, the O.Ps did nothing to replace the said ornament (Mangal Sutra) which is still in the possession of the O.P.-respondent No-1. He also submitted that finding no alternative, the appellant being the complainant lodged the complaint under Section 12 of the C.P.Act,1986 before the Ld. District Forum, West Tripura, Agartala seeking replacement of the damaged ornament with a new one of the same weight and colour and also for a compensation of Rs.2,00,000/- for inconvenience, harassment, mental agony and tension. 
11. He also submitted that the Ld. District Forum on perusal of the pleadings of the parties and the evidences failed to appreciate the case of the complainant and erroneously passed the impugned judgment dismissing the complaint holding that the complaint is devoid of any merit. He also submitted that the Ld. District Forum while dismissing the complaint vide para-18 of the impugned judgment made an observation stating that the O.Ps may consider as to whether as a mark of good gesture if the disputed Mina colour locket of the Mangal Sutra of the complainant can be replaced by a new one of the similar weight and colour. He also submitted that in spite of such observation of the Ld. District Forum, the respondent-O.Ps did nothing to replace the said Mangal Sutra and kept the said damaged Mangal Sutra in the showroom of the O.P.-respondent No-1. Lastly, he submitted that the Mina colour covering the locket of Mangal Sutra has been damaged due to the negligence and deficiency in service on the part of the O.Ps, but the Ld. District Forum failed to appreciate this fact and circumstance of the case and erroneously dismissed the complaint by the impugned judgment which cannot be sustained in the eye of law and is liable to be set aside by way of allowing the appeal and granting the reliefs sought for in the complaint.
12. The learned counsel of both the respondents submitted that the O.P.-respondent No-1 is the branch office and a sales agent of the O.P.-respondent No-2. He also submitted that the identity of the complainant and her husband were known to the O.P.-respondent No-1 when they initially came to the showroom of the O.P. No-1 on 09.06.2010 at Agartala for her gold booking on payment of Rs.11,340/- by a Debit Card and ultimately, the complainant purchased a single line Mangal Sutra including Mina coated locket on 25.01.2011, although at the time of negotiation, the O.P. No-1 duly informed the complainant and her husband that Mina is a delicate substance and there is no guarantee for the said Mina colour and in case of any sort of mild stroke/pressure to such Mina substance, there is every chance of erosion or decrease of the original colour of Mina. He also submitted that in spite of such information and knowingfully well, the complainant purchased the said Mangal Sutra including Mina coated locket, but after the use of more than one year, the complainant and her husband had deposited the same with the O.P. No-1 for some minor repairing on 15.03.2012. He also submitted that the complainant intentionally and willfully suppressed the fact in the complaint under Section 12 of the C.P.Act, 1986 that she purchased the Mangal Sutra including Mina coated over the locket.   
13. The learned counsel for the respondents also submitted that the repairing-work of the Mangal Sutra as asked for by the complainant being completed, the husband of the complainant on 27.06.2012 visited the shop of the O.P. No-1 for collection of the said Mangal Sutra and the husband of the complainant after being satisfied of the repairing-work of the said Mangal Sutra received the same from the O.P. No-1, but almost after two months i.e. on 10.08.2012 the complainant along with her husband re-visited sales centre of the O.P. No-1 and claimed that the repairing-work of the said Mangal Sutra was not done properly and she would only take back after proper repair of the same. He also submitted that the O.P. No-1 usually gets minor repairing of ornaments by local goldsmith, but considering the matter of the complainant and her husband, he sent the said Mangal Sutra for repairing to their Corporate Office, Kolkata (P.C.Chandra Jewelers). He also submitted that in spite of best service rendered by them regarding the repairing of the Mangal Sutra of the complainant, she lodged the complaint, having practically no cause of action and unnecessarily against the O.P.s.
14. The learned counsel for the respondents also submitted that the complainant and her husband were duly apprised by the O.P. No-1 that the Mina colour may get faded and lose its glaze after use of the same for a considerable period and also in case of any mild stroke or pressure. He then submitted that according to the complainant, the colour of the Mina covering the locket has been faded, but the complainant has no iota of evidence for establishing as to what was the colour of that Mina-coated over the locket at the time of hand over of the Mangal Sutra to the O.P. No-1 for minor repairing for the purpose of comparing with the colour of the Mina as it stood after the said repairing. He also submitted that whether the colour of the Mina-coated locket has been faded or not, that can only be ascertained by way of examining an expert in this regard. He also submitted that the allegation of the complainant regarding faded condition of the Mangal Sutra after its repairing has been made by the complainant and as such, it is incumbent upon the complainant to prove so by examining an expert in this regard, but the complaint miserably failed to examine any expert on this subject for proving that the colour of the Mina-coated locket has really been faded and also for establishing that it was more brighter and glittering at the time of its purchase. He also submitted that the Ld. District Forum rightly dismissed the complaint holding that the complaint is devoid of any merit.
15. The learned counsel for the respondents also submitted that although Ld. District Forum dismissed the complaint being devoid of any merit and also finding no negligence and deficiency in service on the part of the respondents, but the Ld. District Forum vide paragraph-18 of the impugned judgment observed indicating for replacement of the Mina coated locket of the Mangal Sutra of the complainant by a new one of similar weight and colour to be made by the respondents. He also submitted that such type of observation almost tantamounts to the allowing of one prayer of the complainant out of two made in the complaint. He also submitted that when the complaint was dismissed outright, such observation is not at all desirable on any pretext as it may affect the reputation of the respondents’ business, a world-wide reputed jewellery company.
16. The learned counsel for the respondents also submitted that he has submitted a brief note of argument on behalf of the respondents relying on a number of cited decisions, copy of which he has already served upon the learned counsel for the appellant. He then submitted that even in this appeal also the appellant could not make out any ground for reversing the final decision of the Ld. District Forum regarding the dismissal of the complaint being devoid of any merit and as such, the impugned judgment directing dismissal of the complaint should be affirmed and the appeal should be dismissed.
17. We have gone through the pleadings of the parties, the evidences both oral and documentary, the written submissions made by both the parties in the District Forum, the impugned judgment, the memo of appeal and the brief note of argument made for the respondents. We have also gone through the cited decisions referred to by the learned counsel for the respondents. We have also gone through the internet generated information regarding the Art of Minakari submitted by the learned counsel for the appellant. The Deputy Editor of Iran Review compiled by Firouzeh Mirrazavi opined as follows :-

          “The art of Minakari or Enamelling is called miniature of fire as well as the decoration of metal and tile with mina glaze Minakari or Enamelling is the art of painting colouring and ornamenting the surface of metals by fusing over it brilliant colours that are decorated in an intricate design.”

          In page-3 of the said Editorial information speaks :- “Things that can damage Minakari include damage of the edges of the body caused by mechanical impacts or lack of appropriate heating in furnace, faults in metal base (such as having a streak in the metal layer) or a lack of strong junction between different layers.”

18. Going through the above editorial information, we are of the view that it has got no direct or indirect nexus regarding alleged faded condition of the colour of Mina coated locket of Mangal Sutra of the complainant in the facts and circumstances of the present case. So, it is found that this editorial information is found not helpful to the complainant.
19. There is no dispute regarding the legal proposition laid down in the case reported in 2008 CPJ 954 (C.P.) (NCDRC) that the “Consumer Forums in the country are bound to follow the decisions rendered by the National Commission in the consumer cases filed under the provisions of the Consumer Protection Act”. It has also been held in the decision reported in 11(1996) CPJ 25 (SC) that when there is a specific term in the contract, the parties are bound by terms in the contract. It has also been held in the decision reported in 2011 CTJ 626 (CP) (NCDRC) that it is the cardinal principle of law that one who makes an allegation is required to prove it beyond any doubt. It has also been held in the decision reported in 2015(1) CPR 800 (NC) that mere affidavit of complainant is not suffice to prove his case. It has also been held in the decision reported in 2010(1) CPR 118 (NC) that allegation of manufacturing defect has to be proved by expert evidence. It has also been held in the decision reported in 2015 (1) CPR 819 (NC) that amount of compensation cannot be exorbitant. It has also been held in the decision reported in 2011 (1) CPR 161 (NC) that compensation which complainant can claim is for actual pecuniary loss suffered by him. It has also been held in the decision reported in 2013 (3) CPR 365 (NC) that award of Consumer Court is not a jackpot or a lottery. It has also been held in the decision reported in 2012(1) CPR 44 (NC) that any person who approaches court or judicial forum with unclean hands and conceals material facts, is not entitled to relief under law.
20. Going through the above cited decisions, it is evident that there is no controversy regarding the principle of laws mentioned above to be followed by the Consumer Forums while deciding cases pending before it under the C.P.Act. On perusal of the complaint, we find that the complainant nowhere stated in four corners of the complaint as to what sort of repairing-work she needed in respect of her said Mangal Sutra. It also appears that the complaint discloses only the need of some minor repairing in respect of her Mangal Sutra. The complainant as P.W.1 and her husband as P.W.2 also did not state in their evidence as to what sort of alleged repairing the complainant needed in respect of her Mangal Sutra. At the time of hearing of appeal, the learned counsel for the appellant admitted this flaw for not pleading in the complaint regarding the nature and type of repairing-work required in respect of her Mangal Sutra. No document, whatsoever has been produced from the side of the complainant in the District Forum indicating the nature and type of the repairing the complainant needed for which she deposited her Mangal Sutra with the sales office of the O.P. No-1 on 15.03.2012. Going through the impugned judgment, we find that the Ld. District Forum rightly pointed out this matter i.e. regarding the absence of the nature and type of repairing required in respect of the Mangal Sutra of the complainant in the complaint.
21. In this regard, the learned counsel for the appellant has made an attempt referring to the cross-examination of O.P. No-1 Rajib Kr. Mandal (O.P.W.1) and the cross-examination of Smt. Ratna Sen (O.P.W.2), sales girl of the sales office of the O.P. No-1. The O.P.W.1 stated in his cross-examination that the disputed ornament was sent to Kolkata for joint and Mina repairing. From the cross-examination of O.P.W.2, it transpires that so far her knowledge goes, the ornament in question was placed with them only for Mina repairing and not for any other purpose. Be that as it may, it is evident that the case of the complainant as narrated in the complaint specifically in this regard is totally silent.
22. Admittedly, the complainant and her husband together visited the sales office of the O.P. No-1 and handed over the Mangal Sutra for its repairing. Going through the cross-examination of P.W.2 (the husband of the complainant) it appears that this P.W.2 admitted in his deposition that he took delivery of the Mangal Sutra from the O.Ps after repairing being satisfied. It is evident that the complainant received back her Mangal Sutra from the sales office of the O.P. No-1 through her husband P.W.2 who practically took delivery of the said Mangal Sutra as agent of his wife, the complainant. When the agent (P.W.2) being satisfied after repairing of the Mangal Sutra took delivery, there is/was no scope to say that the said Mangal Sutra was not repaired properly and the original colour of Mina coated locket has still remained faded.
23. From the terms and conditions as printed on the reverse side of the cash memo (Ext.2) by which repairing charges of Rs.120/- was paid, it appears that there is a condition for changing the ornament within one week provided it is not used, if the purchase of the said ornament is not approved. In the instant case, there is no question of purchase of the ornament (Mangal Sutra) at that stage. It was purchased on 25.01.2011. The said Mangal Sutra as appearing was given to the sales centre of the O.P. No-1 for repairing purpose on 15.03.2012 i.e. after use for more than a year. Going through the terms and conditions printed  on the reverse side of all the cash memos adduced from the side of the complainant, it appears that those terms and conditions have been made applicable where question arises for purchase of the ornament. Those terms and conditions have got no direct nexus with the repairing matter of any ornament. It further appears that the Mangal Sutra was sent to the Kolkata office of the O.Ps for the first time for joint repairing purpose. It is also clear that after repairing for the said Mangal Sutra it was received back by the complainant through her husband. It also appears that the complainant and her husband re-visited the sales counter of the O.P. No-1 on 10.08.2012 and handed over the said Mangal Sutra to the O.P. No-1 for restoration of the original colour of Mina coated locket alleging that the original colour of Mina coated locket of Mangal Sutra has been faded. When the husband of the complainant being satisfied regarding its repairing-work received back the Mangal Sutra from the sales counter of the O.P. No-1 on 27.06.2012, there was no question of accepting the said Mangal Sutra again by the O.P. No-1 on the ground of alleged repairing of the colour of Mina coated locket, but the O.P. No-1 as a good gesture received it and again sent it to Kolkata office of the O.Ps for the second time for repairing of the alleged faded colour of Mina coated locket of Mangal Sutra, if any, without charging any amount. The colour of Mina coated locket of Mangal Sutra has been faded actually or not, that has not been proved. It is found that even then the O.P. No-1 sent the said Mangal Sutra again to their Kolkata office for the satisfaction of the complainant. It further appears that the complainant and her husband on getting information had been to the sales centre of the O.P. No-1 for collecting the Mangal Sutra, but according to them, it was not repaired and the original colour and glaze of Mina could not be restored and as such, they did not receive it from the O.P. No-1 and since then it is lying with the sales centre of the O.P. No-1.
24. It has already been mentioned that there is no evidence to see the original colour of Mina coated locket of Mangal Sutra. There is also no evidence to see the colour of Mina coated locket when it was handed over for the first time to the sales centre of the O.P. No-1 for joint repairing. The complainant miserably failed to examine any expert for establishing that the original colour of Mina coated locket has actually been faded. We are not unmindful that after purchase of the Mangal Sutra it was used by the complainant for more than a year. Considering all aspects of the matter before us, we are of the view that the allegation of negligence and deficiency in service on the part of the respondents towards the complainant concerning that Mangal Sutra has not been established. We do not find anything for coming to a decision that the O.Ps concerning the Mangal Sutra of the complainant adopted any unfair trade practice as alleged by the complainant. We are also of the view that the Ld. District Forum rightly arrived at the conclusion that the O.Ps were not negligent and not involved in unfair trade practice in any manner whatsoever.
25. As regards the observation of the Ld. District Forum made in para-18 of the impugned judgment, we are of the view that it is nothing, but a mere desire of the Ld. District Forum and in no way it is legally binding upon the parties. The complainant lodged the complaint praying for replacement of the Mangal Sutra by a new one with similar weight and colour and also for granting a compensation of Rs.2,00,000/- against the O.Ps on the ground of mental agony and harassment etc.. The Ld. District Forum dismissed the complaint. No negligence and deficiency in service on the part of the O.Ps-respondents have been proved. The allegation of adopting unfair trade practice by the respondents has also not been established. In that case, whatever it is stated in para-18 of the impugned judgment, that is nothing, but a good wishes or desire of the Ld. District Forum and a good whishes or desire cannot be enforced. But the fact remains that the Mangal Sutra is still lying in the sales centre of the O.P. No-1 as the complainant did not take it back therefrom and as such, it requires to give a necessary direction concerning the said Mangal Sutra.
26. On the basis of the discussions made above and also considering the facts and circumstances of the case, we are of the view that the decision of the Ld. District Forum dismissing the complaint being devoid of any merit by the impugned judgment calls for no interference by this Commission and as such, it is liable to be upheld and the appeal is also liable to be dismissed.                  
27. In the result, the appeal fails. The impugned judgment dated 16.01.2015 passed by the Ld. District Forum,West Tripura, Agartala in case No.C.C.94/2013 is hereby affirmed. There is no order as to costs.
28. We have made it clear that para-18 of the impugned judgment is a mere desire of the Ld. District Forum and as such, it is not liable to be enforced.
29. The appellant-complainant shall visit the sales centre of the O.P. No-1 within a month from the date of this judgment for receiving her Mangal Sutra in its present condition. At the same time, the O.P.-respondent No-1 is directed to hand over the Mangal Sutra of the complainant to her as it stood now, on proper receipt on her visiting the sales centre within a month from the date of this judgment for receiving her Mangal Sutra from the O.P. No-1.

         

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura