Date of Filing: 25.04.2016 Date of Final Order: 12-05-2017
Smt. Runa Ganguly, Member.
The factual matrix of the case as can be gathered from the record that the Complainant on 03.11.2014 contacted with the O.P. for making gold ornament for his wife and for that purpose he deposited 5.890 gm gold to the O.P. Thereafter, on 17.02.2015 he again handed over a gold chain weighing 15.460 gm. for repairing also made payment of Rs.19000/- as advance money to Mr. Tapash Debnath i.e. the proprietor of Tithi Jewellery. The O.P. issued a receipt in favour of the Complainant. The O.P. even after expiring delivery date also so many months did not return the said ornaments. One fine morning the Complainant came to know that there is no trace of the O.P. also escaped by locking the door of his shop. Finding no way the Complainant filed a petition to the Asstt. Director, CA & FBP Cooch Behar. The O.P by appearing there promised to return the said ornament and cash. The Complainant miserably suffered due to the activities of the O.P. and for which the Complainant filed the present case seeking redress and relief as incorporated in the prayer portion of the Complaint.
The O.P. Mr. Tapash Ch. Debnath after receiving the notice of this Forum appeared through an Agent and files w/v but thereafter did not turn up. No Evidence on affidavit is also filed by the O.P. also absent on the date of argument. In this premises the matter was heard in absence of the O.P.
The O.P. by filing w/v partly admitted the fact of the case and make denial on some point of fact.
The O.P. contended that one pair of ear ring weighing 2040m.g was delivered to the Complainant. Out of the deposited gold also .820 mg. was spent for repairing another Neckless. This fact did not disclose the Complainant in this complaint petition. At present the Complainant is entitled to get gold ornaments weighing 18.490 gm. Instead of 21.350 gm and Rs.10,000/- that was paid by the Complainant as advance for making the ornament.
The further contention of the O.P. is that due to financial crisis the O.P. was bound to close his jewellery shop and could not deliver the ornament to the Complainant. This O.P has no intention to grab the money/ gold of the petitioner’s wife. He is willing to return back the gold weighing 18.490 gm. to the Complainant and Rs.10,000/- but it will take some time.
Putting all this the O.P. prayed for 6 months time for delivering the gold and cash of Rs.10,000/-.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service as alleged by the Complainant?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the documents made available in the record. Perused also the evidence on affidavit filed by the parties and heard the argument at a length advanced by the Ld. Agent for the Complainant.
Point No.1
The Complainant deposited an amount of Rs. 10,000/- as consideration along with some quantity of gold to the O.P. for making gold ornaments and promised to pay further amount after delivering the same. The Opposite Party issued a estimate in favour of the Complainant. Thus, the relation between the Complainant and the O.P. so established from the record, we have no hesitation to hold that the Complainant is a Consumer as per C.P. Act 1986.
Point No.2
The place of business of the O.P. is situated within this district and the complaint value of the present case is far less than the prescribed limit for which this forum has territorial as well as pecuniary jurisdiction to try the present case.
Point No 3 & 4 :
Both points are taken up together for convenience of discussion as these are related matter.
Evidently, the Complainant deposited an amount of Rs.10,000/- along with 5.260 gm. gold for an order of Kamal chain of 14.500 gm. on 17.02.2015.
On the same day the Complainant handed over a gold chain weighing 15.460 gm. for repairing.
The O.P. received all the above and issued an estimate voucher in favour of the Complainant on 3.11.2014 being Sl. No 759.
It is the case of the Complainant that even after elapsing so many months the O.P. neither delivered the ornaments as ordered nor returned the amount he received for that purpose.
It is the case of the O.P. that the O.P. received an amount of Rs. 10,000/- also the gold weighing 5.260gm, a chain weighing 15.460 gm. But due to some crisis he did not able to deliver the ordered item/ ornament. Though in the meantime the Complainant received one earring weighing 2.040 mg and .820 gm. gold was also used for repairing the necklace and that was delivered to the Complainant. Thus, Complainant only entitled to get 18.490 gm. gold with Rs.10,000/- cash.
During the course of argument the Ld. Agent for the Complainant vehemently argued that the Complainant several time contacted with the O.P. to get return his ornaments and cash but that was too unheeded. Moreover, before Assistant Director, CA&FBP the O.P. assured that he would return all the gold and cash but no fruitful results came out.
In this juncture, it is pertinent point to mention that the OP after filing w/v did not file any evidence on affidavit also did not come forward before this Forum for contesting the case.
We do not find any document which corroborates the contention of the O.P. as described in his w/v.
In the light of the foregoing discussion and the documents made available in the record it is crystal clear that the O.P received some quantities of gold and Rs.10,000/- from the complainant. There is a contract between the Complainant & O.P. is clearly established. The Complainant hired service from the O.P. but O.P. failed to give proper service to the Complainant. Thus, deficiency in service of the O.P. established beyond any manner of doubt. As it is already proved that the O.P. has deficiency in service, the complainant is liable to be compensated.
Hence,
Ordered
That, the present case be and the same is allowed in Ex-parte with cost of Rs. 5000/-.
The O.P. is directed to pay the Complainant Rs. 10,000/- which he received as advanced money also to give return of gold weighing 21.350 gm. within 45 days from the date of this order. The Complainant also do get an award of Rs. 10,000/- as compensation for his mental pain and agonies.
The entire order shall be complied with by the O.P. within stipulated days i/d the O.P. shall have to pay Rs. 50/- for each days delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
A plain copy of this order be made available and be sent to each of the parties free of cost by registered post with A/D forthwith as per rules.
Dictated and corrected by me.
