BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                Dated this the 31^st of January 2011

PRESENT

                                                          SMT. ASHA SHETTY           :   PRESIDENT

                                                                                   SMT.LAVANYA M. RAI       :   MEMBER

                                                                                   SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.182/2010

(Admitted on 03.07.2010)

Smt.Sujatha,

Wo. Nagesh,

RA. Sarvamangala,

Thunga Nagar Layout,

Padil, Karmar, Mangalore.                           …….. COMPLAINANT

(Advocate for the Complainant: Sri.Ashwin Kumar Vittal).

          VERSUS

Shree Laxmi Sowharda Credit Co Op. Ltd.,

Represented by its Manager,

Nagori Branch,

Mangalore.                                ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Mrs.Suma R. Nayak).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, Opposite Party is the Credit Co-operative Society engaged in the business of rendering financial services to the general public.  The Complainant obtained gold loan with the Opposite Party to the tune of Rs.4,95,470/- on different dates.  It is stated that, on 15.05.2010 the Opposite Party issued a loan account statement which contained all particulars with regard to the jewels pledged.  It is stated that, when the Complainant approached the Opposite Party to clear her debt and receive back the gold ornaments, the Opposite Party failed and neglected to return the gold ornaments to the Complainant and refused to receive the loan amount along with interest.  It is stated that, the Opposite Party since from more than a year not cared to return the jewels and postponed the issue on one or the other pretext.  Thereafter, the Complainant issued a legal notice, the Opposite Party despite of receiving legal notice not returned the jewels and contended that the Opposite Party has committed deficiency in service and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to return the gold ornaments which has been pledged by the Complainant or in the alternative to pay Rs.10,00,000/- and also claimed Rs.10,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, stated that the complaint is false, frivolous and vexatious and this FORA has no jurisdiction to entertain the above complaint because the transaction is a commercial transaction.

          It is stated that, the Complainant had availed a jewel loan from time to time from December 2007 to November 2008 in total upto Rs.4,85,310/- with interest.  The Complainant was very irregular in repayment of the said loan.  It is stated that, on 04.02.2009, there was a robbery at the Opposite Party office, wherein, all the jewelry in the custody of the Opposite Party which included the jewelry of the Complainant was stolen, it was made known to the Complainant.  As per the resolution of its Board of Directors decided to disburse Rs.1,000/- per gram to all its customers including the Complainant whose jewelry was stolen in the said robbery.  The above information was displayed in the notice board.  On 09.03.2010, the police department filed a ‘C’ report with regard to the theft of the jewelry and gold ornaments.  Therefore, on 03.04.2010 the Opposite Party gave a paper publication in Vijaya Karnataka and Udayavani Newspaper calling upon the customers to collect the compensation amount.  It is further stated that, the Opposite Party yet to receive the insurance amount for the theft took place on 04.02.2009 and the case is pending investigation.  Inspite of that, the Opposite Party has disbursed Rs.1,000/- per gram as compensation to their customers.  It is stated that, the loan disbursed to the Complainant was against second hand gold subjected to market depreciation.  The valuation of the gold was all below Rs.1,000/- per gram.  The valuation of the gold was made by the official valuator of the Opposite Party and accepted by the Complainant and stated that even on today the Opposite Party is willing to pay Rs.1,000/- per gram to the Complainant and contended that there is no deficiency and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Smt.Sujatha (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her.   Ex C1 to C4 were marked for the Complainant as listed in the annexure.   One Mr.Ravindra Rao (RW1), General Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R10 were marked for the Opposite Party as listed in the annexure.   Both parties produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The facts which are not in dispute is that, the Complainant availed gold loan by pledging her jewels with the Opposite Party and obtained Rs.4,85,310/- from time to time between the year December 2007 to November 2008.  It is also admitted by the Opposite Party that, the Complainant pledged the gold ornaments as mentioned in the ‘¸ÀgÁ¥sÀgÀ’ (valuation) report i.e., Ex R1 (i) to (xxi).  As per the ‘¸ÀgÁ¥sÀgÀ’ reports, the Complainant pledged her ornaments with the Opposite Party on different dates i.e., between 31.12.2007 to 20.11.2008 as under:-

It is also admitted that, the below mentioned total weight, net weight and wastage weight of the jewels has been arrived by the Opposite Party after deducting the wastage by the goldsmith to obtain a jewel loan.

Now the point in dispute between the parties before this FORA is that, the Complainant admittedly availed the jewel loan by pledging her gold ornaments as mentioned above with the Opposite Party and the Opposite Party in turn sanctioned a gold loan of Rs.4,85,310/- on different dates.  It is stated that, the Complainant approached the Opposite Party but she did not get back jewels though she is ready to pay the installments, hence she came up with this complaint.

Opposite Party on the other hand contended that, there was a robbery at the Opposite Party office, wherein, all the jewelry in the custody of the Opposite Party which included the jewelry of the Complainant was stolen.  A police complaint was lodged and the police authority filed a ‘C’ report.  Insurance claim is pending.  It is further stated that, as per the resolution of its Board of Directors, they decided to disburse Rs.1,000/- per gram to all its customers including the Complainant and contended that there has been no deficiency of service.

The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C4.  Opposite Party also filed oral evidence by way of affidavit and produced Ex R1 to R10.

On scrutiny of the oral as well as the documentary evidence, we find that, pledging of the jewels as mentioned in the Ex R1 (i) to (xxi) are admitted and the jewel loan amount of Rs.4,85,310/- on different dates availed by the Complainant also admitted by the Opposite Party. Apart from that, the Opposite Party specifically admitted that, there was a robbery at the Opposite Party office where all the jewelry in the custody of the Opposite Party which included the jewelry of the Complainant was stolen.  Further, a police complaint was lodged and the police submitted a ‘C’ report with regard to the theft as per Ex R3.  But took a contention that, as per the resolution of its Board of Directors decided to disburse Rs.1,000/- per gram to all its customers including the Complainant whose jewelry was stolen in the said robbery.  We are very surprise to note, on what basis the Board of Directors decided to disburse Rs.1,000/- per gram to the Complainant.  Because there is no basis to consider the above said amount.  The above resolution of its Board of Directors is one sided and which cannot be accepted in this case. 

It is a settled position that, when the Opposite Party offering jewel loans to the general public which includes Complainant herein, it is the bounded duty to safe guard the jewels of the customers herein the Complainant.  In case of robbery or any other incident, the Opposite Party is held responsible for the loss suffered by the customers.  Once the jewels accepted by them from the general public by way of security, the Opposite Party should take all safety measures to protect the jewels.  The customer/ Complainant herein pledged the gold in order to avail a loan not to loose the gold ornaments in the hands of the Opposite Party.  Just because the Complainant pledged the jewels in order to obtain a jewel loan, the Opposite Party has got no right to fix the gold rate per gram according to their convenience in case of theft/robbery taken place in their premises.  Opposite Party can accept the gold rate only for granting jewel loan and not otherwise.   It is admitted fact that, the jewel loans sanctioned by the Opposite Party not free of cost, they charge interest on the loan amount.  When that being the case, the Opposite Party cannot take their own decision while paying damage.    

Further, we have gone through the Ex R1 i.e., the valuation report of the goldsmith, wherein, goldsmith not valued the jewels  in exact figure by mentioning the stone weight, pearls weight, beats weight etc. etc. The valuation report itself reveals that, it is a ‘CAzÁdÄ ¯ÉPÀÌ’.  Basing on the valuation report, the Opposite Party cannot contend that the Complainant has admitted the valuation made by the goldsmith of the Opposite Party.  No doubt, the above report has been admitted by the Complainant only to the extent of availing jewel loans and not for assessing damage in case of robbery/theft etc.  Hence, the valuation report made by the goldsmith of the Opposite Party bank cannot be accepted as correct to fix the damage of the jewels.  It is also known fact that, no Nationalized Bank or Society would sanction the existing value of the gold rate as a loan amount but they consider 50% to 60% of the gold rate while sanctioning the gold loan/jewel loan.  But in the instant case, the Opposite Party itself admitted that the jewels kept by the Complainant with the Opposite Party have been stolen and the same has not been traced, hence the Opposite Party shall pay compensation to the Complainant adequately.  On perusal of the Ex R1 mentioned herein above clearly shows that, the Complainant pledged total 694.750 grams weight of the gold with the Opposite Party and after less wastage the goldsmith of the Opposite Party considered the weight as 633.700 grams to grant jewel loan.  Since the goldsmith not given the exact report, it is only a guesswork (CAzÁdÄ) report.  The Complainant cannot be deprived of her legitimate claim as far as her jewels are concerned. The Opposite Party though received the ornaments of the Complainant/ customers as a security towards the jewel loan but failed to safeguard the jewel of the customers/Complainant herein amounts to deficiency in service. Under that circumstances, the Opposite Party shall pay the reasonable market value of the stolen jewels pledged with the Opposite Party society by the Complainant in this case. 

As far as damages is concerned, the Opposite Party considered Rs.1,000/- per gram.  But no cogent/material evidence produced before this FORA to show that on what basis they have calculated Rs.1,000/- per gram in this case.  As we know, the gold rate is increasing day by day.  In the instant case, the Complainant pledged more than half kg jewels with the Opposite Party.  But the goldsmith of the Opposite Party without giving exact report, by guesswork they considered total weight of the gold (694.750) – wastage (61.050) = Net weight (633.700).  Today Rs.1,840/- per gram running in the market for 916 Hall Marks Gold.  Even if we consider Rs.1,700/- per gram x 633.700 grams, it comes to Rs.10,77,290/-.  But in the instant case, the Complainant claimed Rs.10,00,000/- only.  Since the Complainant claimed Rs.10,00,000/-, we restrict the compensation Rs.10,00,000/- only.  By considering the facts and circumstances of the above case, we hereby direct the Opposite Party i.e., Shree Laxmi Sowharda Credit Co-operative Bank represented by its Manager to pay Rs.10,00,000/- to the Complainant along with interest at 12% p.a. from the date of complaint till the date of payment.  Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.      

 In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.                                                                                

6.       In the result, we pass the following:                          

ORDER

            The complaint is allowed.  Opposite Party i.e., Shree Laxmi Sowharda Credit Co-operative Bank represented by its Manager is hereby directed to pay Rs.10,00,000/- (Rupees ten lakh only) to the Complainant along with interest at 12% p.a. from the date of complaint till the date of payment.  And also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st day of January 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Smt.Sujatha – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 15.05.2010: Statement of Jewel Loan.

Ex C2 –                : Receipts (23 numbers).

Ex C3 –                : Legal notice along with acknowledgement.

Ex C4 –                : Reply issued by the Opposite Party to the Complainant.

Witnesses examined on behalf of the Opposite Party:

RW1 – Mr.Ravindra Rao, General Manager of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

Ex R1 –                : Application of the Complainant for the various      jewels availed by her (21 in numbers).

Ex R2 – 20.04.2009: Copy of the board resolution of the Opposite Party.

Ex R3 – 09.03.2009: Copy of ‘C’ report filed with regard to the theft.

Ex R4 – 03.04.2010: Paper publication in Udayavani.

Ex R5 – 03.04.2010: Paper publication in Vijaya Karnataka.

Ex R6 – 05.04.2010: Notice sent to the Complainant.

Ex R7 – 10.04.2010: Copy of under certificate of posting.

Ex R8 -                 : Statement No.1 of persons who have claimed compensation.

Ex R9 -                : Statement No.2 of persons who have claimed compensation.

Ex R10 -              : Statement No.3 of persons who have claimed compensation. 

Dated:31.01.2011                            PRESIDENT