BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 9th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
SMT. SHARADAMMA H.G : HON’BLE MEMBER
ORDERS IN
C.C.No.16/2013
(Admitted on 11.01.2013)
Smt. Geetha Rao,
W/o Prabhakar Rao,
Aged 45 years,
R/A Aithappa Compound,
Alape, Padil Post,
Kannur, Mangalore 7.
….. COMPLAINANT
(Advocate for the Complainant: Sri VN)
VERSUS
Shri Lakshmi Souhardha Credit
Co Operative Ltd,
1st Floor, Srinidhi Complex,
Nagori, Kanankanady Village,
Mangalore Taluk.
.......OPPOSITE PARTY
(Advocate for the Opposite party: Sri HVR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaints filed under Section 12 of the Consumer Protection Act by the same complainant against same opposite party alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The admitted facts are that the complainant pledged 215.79 Grams of gold worth Rs.6,50,000/ gold ornaments with opposite party and borrowed loan in February 2009. The complainant was informed by opposite party that the gold ornaments pledged by complainant were stolen. The complainant has been repeatedly visiting opposite party to fulfil their promises of the return of the gold ornaments which are not complied. Despite the demand of 4.1.2013 the complainant claims the value of the gold on the alleged date of theft 4th/5th February 2009 is around Rs.5,20,000/ as on date it is around Rs. 6,50,000/. After deducting the loan outstanding on 4th/5th February Rs. 1,70,575 seeks balance payment of 4,79,425 / with the interest at 18% damages and cost.
II Opposite party further claim in the written version admitting that of the pledged gold including of complainant on the night in between 4th/5th February 2009 but the values assessed as claimed is disputed only 80% of the value of the gold assessed is being paid to the customer who pledged gold ornaments pledged are of 2nd hand gold. It is also claimed that on various days are by the value and 80% of the value loan was advanced.
2. In his further alleged that notice were issued in respect of their customers by paper publication offering to receive the value of the pledged gold which were cost in theft and insured and number of customers come forward and accepted the price offered at Rs. 1,000 in February 2009 itself. The complainant despite paper publication notice kept quiet for 4 long years and has now come forward with the complaint and it is barred by time. It is also claimed the value of the pledged gold of complainant at the time of theft was Rs. 652 to 850 per gram and complainant failed to accept Rs.1000/- per gram of offered. Hence seeks dismissal of complaint.
3. In support of the above complainant Mrs. Geetha Rao filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Mr. Ravindra Rao (RW1) General Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R8 as detailed in the annexure here below.
In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
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): Partly Affirmative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i): In this case the complainant the consumer had pledged her gold jewellery with opposite party and the opposite party is the service provider and that it was lost during theft of the gold jewellery from the premises of opposite party and there is dispute as per the rate in which the opposite party has to pay the value of the pledged gold lost to complainant by opposite party. Hence there is a live dispute between the parties as contemplated under section 2 of the C P Act. Hence point No.1 answered in the affirmative.
POINTS No.(ii): The total weight of gold pledged with opposite party by complainant is of 215.79 Grams is not in dispute. The complainant has valued the claim of the gold lost as on the date of theft and calculated with interest there from and seeks payment of the value of the gold to complainant less the amount due by complainant in respect of the loan borrowed on pledged gold with opposite party.
2. Before proceeding further let us consider the question as to limitation raised by opposite party. Even according to opposite party the complainant has been visiting opposite parties’ shop seeking return of the gold ornaments or its value which even according to opposite party was not complied. Ex.C9 is order passed by the arbitrator against opposite party in a claim petition filed by opposite party on 22.7.2013. Thus even as on 22.7.2013 the rival claims were not settled. Hence the contention of opposite party that the claim of complaint is barred by time has no substance and is rejected.
3. Now getting back to what should be the value of lost gold of the complainant which according to opposite party was lost in a theft. It is pointed out for opposite party that numerous of the customers of opposite party in furtherance of the notices including of paper publications came forward and settled their claims by accepting the rates offered by opposite party at Rs.1000/- or less. However merely because other customers of opposite party settled their claim is no justification to force the same down the throat of complainant.
4. It is not in dispute that the gold ornament pledged by complainant with opposite party is lost due to theft. As such we are of the consider view subject to payment of the loan borrowed on which pledging the gold with opposite party the opposite party cannot refuse to pay the value of the gold to complainant. In fact the complainant admitted his liability towards the loan borrowed and as such had so sought deduction of the loan amount while making payment of the value of the lost pledged gold of complainant. As seen from the complaint the complainant has calculated the value of the gold at the rate as on the date of complaint in our view the claim made by complainant as on the date of complaint i.e. at Rs.3,012.18 as we can verify from the Google web page of gold rate of 4.1.2013 the date of notice the gold rate was highest at 3,076 lowest at 3,066 per gram if we deduct 10% of the lower rate of 3,066 as the gold pledged was ornament gold the rate per gram we get is 2,759.4 and rounded of near one 2,759 for 215.79 come to 5,95,364.61 rounded off to Rs. 5,95,365.
5. The liability of complainant as on that date of complaint 1,70,575/ Thus the amount due is Rs.4,24,790/ as opposite party failed to pay the value of the gold shall be directed to pay this amount with future interest at 10% from the date of complaint till the date of payment.
6. As regards damages towards loss, hardship mental agony etc sum of Rs.50,000/ and also cost in our view is just and proper. Advocate fee fixed at Rs.7500/. Hence we answer Point No. 2 partly in the affirmative.
Hence we are of the view opposite party shall pay this amount.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is partly allowed with cost. Opposite parties are directed to pay Rs.4,24,790/ (Rupees Four lakh Twenty Four thousand Seven hundred Ninety only) with interest at the 10% per annum from the date of petition till the date of payment. Opposite parties are also directed to pay Rs.50,000/ (Rupees Fifty thousand only) as compensation towards loss hardship mental agony.
2. Advocate fee fixed at Rs.7,500/ (Rupees Seven thousand Five hundred only).
3. Payment shall pay within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 9th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
MEMBER
(SMT. SHARADAMMA H.G)
D.K. District Consumer Forum
Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Geetha Rao
Documents marked on behalf of the Complainant:
Ex.C1: Receipts issued by the opposite party (15 in nos.)
Ex.C2: Loan Account Statement issued by the Opposite party
Ex.C3: Certified Copy of FIR with complaint
Ex.C4: Letter issued by the OP
Ex.C5: Reply letter issued by the complainant
Ex.C6: Postal Acknowledgement
Ex.C7: Copy of the Notice issued by the Opposite party along with the plaint.
Ex.C8: Endorsement sent by the Joint Secretary of Co operative Society Mysore (Certified copy)
Ex.C9: Notarised copy of Judgement and award of Joint Secretary of Co operative Society, Mysore.
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Ravindra Rao, General Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: Certified copy of ‘C’ Report filed by Mangalore Rural P.S
Ex.R2: Notarised copy of paper publication in Vijaya Karnataka Daily News Paper
Ex.R3: Notarised copy of Loan Agreements (15 nos.)
Ex.R4: Notarised copy of Notice issued to the complainant dated 5.4.2010 along with loan account statement
Ex.R5: Notarised copy of notice issued by opposite party to the Complainant for the recovery of loan amount.
Ex.R6: copy of Award of Joint registrar, Mysore Region
Ex.R7: Notarised copy of resolution passed by the Board of Director By appointing Rawndra Rao General Manager to represent the
Bank and conducting the proceedings
Ex.R8: Order of Karnataka Appellate Tribunal Bangalore in Appeal No.521/13 dated 02.01.2014
Dated: 9.01.2017 PRESIDENT
