IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.

Dated this the 3^rd day of November, 2011

Present:- Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

C.C. No. 40/2010 (Filed on 06.03.2010)

Between:

Bino George, Advocate,

Mannickarottu,

Pannivizha Muri,

Adoor Village.

(By Adv. A.K. Satheesh)                                                                  ….  Complainant.

And:

1. Sindhu,

Proprietress,

Shines Fashion Gold,

Punthala Shopping Complex,

Near KSRTC Bus Stand,

Adoor.

2. Radhakrishnan,

Proprietor,

Shines Fashion Gold,

Punthala Shopping Complex,

Near KSRTC Bus Stand,

Adoor.

(By Adv. Roy Varghese)                                                                 ….  Opposite parties.

ORDER

Sri. N. Premkumar (Member):

                        The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                        2. Facts of the case in brief are as follows:  The complainant purchased a gold chain weighing 10 gm. 340 mgm. for ` 13,320 from the opposite parties’ jewellery shop on 04.06.2008 by exchanging a foreign gold chain weighing 14 gm. 30 mgm. and a foreign gold cross weighing 910 mgm. having 916 quality (22 ct.).  The opposite parties made him to believe that the new gold chain is 22 ct. having the purity and quality prescribed by law. 

                        3. The new gold chain broke in many pieces within one month and was damaged.  The complainant contacted opposite parties and demanded for replacement of the gold chain.  But opposite parties have not done it.  Aggrieved by the attitude of opposite parties, complainant approached the office bearers of Gold Merchants’ Association and Ward Municipal Councilor.  Their mediation also failed due to the arrogance and bad manners of the first opposite party.

                        4. According to the complainant, opposite parties did not issue the mandatory sale bill.  Opposite parties told him that their bill book was out of print and a temporary hand written bill only was issued.  They also deducted 1 gm. 740 mgm. from the foreign gold chain and gold cross given by the complainant at the normal price in the news papers, which caused undue loss to him.  All the said act of the opposite parties caused hardship, insult, mental agony and financial loss to the complainant.  Hence this complaint for getting compensation of ` 25,000 with 18% interest and a direction to replace the gold chain and to re-imburse the amounts collected in excess with cost.

                        5. Opposite parties entered appearance and filed version stating that the complaint is not maintainable either in law or on facts.  According to him, their jewellery is in the name of Shines Jewellery not ‘Shine Fashion Gold’.  The averment of the complainant that he had purchased gold chain from opposite parties’ shop on 04.06.2008 for an amount of ` 13,320 is absolutely false.  Complainant never purchased a gold chain from the opposite parties and they did not sold the same.  Complainant has not exchanged a foreign gold chain or gold cross with opposite parties.  There would not occurred any gold transaction between the complainant and opposite parties.  The allegation regarding the said transaction is also absolutely false.    

                        6. According to the opposite parties, the allegation regarding the broken gold chain is false.  Without purchasing gold chain from the opposite parties’ shop, how can it broken.  Complainant has never approached the opposite parties with a complaint regarding the breaking of gold chain.  He has not meet them for exchanging the gold ornaments.  Opposite parties were not approached by any office bearers of Gold Merchants’ Association or Municipal Councilor as alleged by the complainant.  This story had created only for the purpose of this complaint.  Opposite parties have not sold any gold ornaments to the complainant.  There would not have arise any pain and suffering to the complainant.  Opposite parties are not liable for any economic loss of the complainant.  Opposite parties have not done any unlawful activities to the complainant.  They would not sold any lower or higher purity gold ornaments to the complainant. There would not have occurred any trade or business in between the complainant and opposite parties.  Opposite parties have not issued temporary bill or caused any loss to him.  Opposite parties are not liable to pay compensation or to replace the gold ornaments.  Opposite parties are selling gold ornaments bearing special marks.  There is no cause of action in this complaint.

                        7. This complaint has been filed on the basis of the denial of a demand for fund to a club of the complainant.  When the complainant approached for the fund, opposite parties informed that ‘all contributions would be done only through the organization and no donation was given’.  It created vengeance against opposite parties.  So he falsely filed this complaint.  Therefore, none of the relief claimed by the complainant is not allowable as they have not committed any illegal act.  Hence they canvassed for the dismissal of the complaint.

                        8. From the above pleadings, the following points are raised for consideration:

(1)               Whether the complaint is maintainable before this Forum?

(2)               Whether the reliefs sought for in the complaint are allowable?

(3)               Relief and Cost?

                        9. The evidence of the complaint consists of the oral deposition of PWs.1 to 4 and DW1 and Exts.A1 to A4 series and C1 and C2.  After closure of evidence, both sides were heard.

                        10. Point Nos. 1 to 3:  In order to prove the complainant’s case, complainant filed a proof affidavit along with certain documents.  He was examined as PW1 and the documents produced were marked as Exts. A1 to A4 series.  Ext.A1 is the temporary bill issued by the opposite parties.  Ext.A2 is the copy of Advocate Notice sent to opposite parties.  Exts. A3 and A3(a) are the 2 postal receipts of Ext. A2.  Exts. A4 and A4(a) are acknowledgment cards of Ext. A2.

                        11. In this case, the gold ornament in question was sent to gold testing laboratory for gold purity test and gold purity test and the report is marked as Ext. C1.  Ext. C2 is the copy of covering letter of Ext. C1 in which particulars of the ornament is recorded.

                        12. In order to prove the opposite parties’ contention, second opposite party filed proof affidavit.  He was examined as DW1.  Apart from oral evidence, opposite parties did not adduce any documentary evidence.

                        13. On the basis of the contentions and averment of the parties, we have perused the entire materials on record.  Complainant’s case is that opposite parties sold low purity and quality gold chain and it broken within one month.  Opposite parties not issued mandatory bill to complainant, though he paid an amount of ` 13,320 by exchanging a gold chain and gold cross having 916 quality.  Opposite parties’ contention is that complainant has neither purchased gold chain nor exchanged any gold ornaments to them.  Complainant never approached them with the complaint of breaking of gold chain.  Therefore, none of the relief claimed is not allowable.

                        14. On a perusal of Ext. A2, it is learnt that complainant sent lawyer’s notice to opposite parties.  Exts. A3 to A4 series show that opposite parties received Ext. A2.  But opposite parties nowhere mentioned what prevented to respond the Ext. A2 notice though they denied the gold transaction.

                        15. According to opposite parties, they never sold gold chain to complainant.  But DW1 deviated from their stand in his deposition which is as follows: “t\cs¯ ]cnNb¡mcmbncp¶p.  A¶v Ft¶mSv hm§nb kzÀ®¯nsâ _m¡n 4,650/þ cq] \ÂIm\p­mbncp¶p.  ]e {]mhiyw tNmZn¨p In«nbnÔ.  Another contention of opposite parties is that they are selling gold ornaments having special marks.  But they failed to disclose the identification or adduce evidence to that effect.  Therefore, it is presumed that such a mark as claimed by them does not existed.  This fact was admitted by DW1 which is as follows: “Xm¦Ä hnev¡p¶ kzÀ®¯n\v {]tXyI ASbmfw DÅXmbn ]{XnIbnepw kXyhmMvaqe¯nepw tcJs¸Sp¯nbn«p­tÃm? icnbmWv (A). GXv ASbmfamsW¶v ]dªn«nà Rm³ hn¡p¶ kzÀ®¯n ImWp¶ ASbmfw C¶XmsW¶v ImWn¡m³ sXfnhpIÄ lmPcm¡nbn«pt­m? Cà (A)”.  On a perusal of Ext. A1, it is seen that rate, value and addition in calculating the price of gold chain and exchange gold.  Opposite parties flatly denied the issuance of Ext. A1, but DW1 admitted the calculation and other details in his deposition which is as follows:  “R§fpsS Øm]\w rateþDw value additionsþDw {]tXyIw tcJs¸Sp¯mdp­v.   Ext. A1- ImWp¶Xv A{]ImcamWv”. 

                        16. From the above facts and circumstances and the contradictions and deviations of DW1, it can be observed that opposite parties sold gold chain to complainant and issued Ext. A1.  Moreover, we cannot find any reason or ground to doubt the case of complainant that he purchased gold chain from opposite parties on the basis of the deposition of PW2 and PW3.

                        17. It is pertinent to note that the gold having 916 quality (22 ct.) is the purity and quality as per standard prescribed by law.  Ext. C1 report shows that the purity of M.O.1 is only 89.73.  The variation is 1.9%.  Opposite parties also admitted that they were not sold 916 quality gold during the period as alleged in this complaint.  It is evident in DW1’s deposition which is as follows: “Sn ImeL«¯n 916 gold hn¸\ F\n¡nÃmbncp¶p F¶v ]dªn«p­v. Cu hnhcw ]{XnIbnepw ]dªn«p­v.  Ext.C1 Certificate {]Imcw goldþ\v quality Csöv a\Ênem¡nbXnsâ ASnØm\¯nemWv ]{XnIbn ]dbm¯ Imcyw affidavitþ ]dªncn¡p¶Xv F¶p ]dbp¶p.  icnbmWv (A).   89.73% purity DÅ kzÀ®w 22 caret F¶v ]dbm³ Ignbptam?  ]dbm³ IgnbnÃ. (A)”.  

                        18. Opposite parties neither produced any material to disprove the complainant’s case nor adduced any cogent evidence to prove their contention.  From the facts and circumstances of this case and on the basis of the observations and discussions herein above, we find that the opposite parties sold gold chain having purity of only 89.73 and issued Ext. A1.  Selling low quality gold is unfair, illegal, unscrupulous and against all the cannons of justice.  It is not only a deficiency of service but also an unfair trade practice.  Therefore, complaint is maintainable and allowable.  Since due to lack of evidence to assess the way in which the excess amount is collected, we are not inclined to allow prayer (c) as claimed.

                        19.  In the result, this complaint is allowed as follows:

(1)               Opposite parties are directed to replace the complainant’s gold ornament with 916 quality gold or to pay the present market value and the complainant is directed to return the ornament at the time of replacement or payment.

(2)               Opposite parties are directed to pay ` 5,000 (Rupees Five thousand only) as compensation and a cost of ` 1,000 (Rupees One thousand only).

(3)               Parties are directed to comply the order within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest per annum from this date till the realization of the whole amount. 

Pronounced in the Open Forum on this the 3^rd day of November, 2011.

                                                                                                                    (Sd/-)

                                                                                                            N. Premkumar,

                                                                                                                 (Member)

Sri. Jacob Stephen (President)                  :           (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1    :           Bino George.

PW2    :           Mathew Veerappally.

PW3    :           Sanal George.

PW4    :           Mary Fancy. P.X.

Exhibits marked on the side of the complainant:

A1       :           Bill dated 04.06.2008 issued by the opposite parties to the complainant. 

A2       :           Advocate Notice dated 17.02.2009 issued by the complainant to opposite    

                         parties.

A3 & A3(a) :   Postal receipts of Ext. A2 Advocate Notice.

A4 & A4(a) :   Acknowledgment cards of Ext. A2 Advocate Notice.

Witness examined on the side of the opposite parties:

DW1   :           P.R. Radhakrishnan.

Exhibits marked on the side of the opposite parties:   Nil.

Court Exhibits:

C1       :           Gold Purity Test Report issued by Gold Testing Laboratory, Legal Metrology,  

                        Legal Metrology Bhavan, Kakkanad, Ernakulam.

C2       :           Copy of covering letter of Ext. C1.

Material Objects:

M.O.1 :           Gold chain.

                                                                                                                        (By Order)

                                                                                                                             (Sd/-)

                                                                                                              Senior Superintendent.

Copy to:- (1) Bino George, Advocate, Mannickarottu, Pannivizha Muri, Adoor Village.

(2)   Sindhu, Proprietress, Shines Fashion Gold, Punthala Shopping Complex,

            Near KSRTC Bus Stand, Adoor.

(3)   Radhakrishnan, Proprietor, Shines Fashion Gold, Punthala Shopping Complex, Near KSRTC Bus Stand, Adoor.

(4)   The Stock File.