Orissa

Cuttak

CC/295/2012

Prabir Baral - Complainant(s)

Versus

Sukender Moharana - Opp.Party(s)

P K Pattanaik

07 Feb 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.295/2012

 

Sri Prabir Baral,

At:Nua Rausapatna,P.O:G.P.O,Cuttack,

P.S:Purighat,City/Dist:Cuttack.                                                           … Complainant.

 

                Vrs.

 

Sukender Moharana,

The Sole Proprietor,Raj Jewellers,

At:Dolamundai(Haripur Road),

P.O:G.P.O,Cuttack,

P.S:Badambadi,City/Dist:Cuttack.                                                            … Opp. Party.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    19.12.2012.

Date of Order:  07.02.2017

 

For the complainant: Sri P.K.Pattnaik,Advocate & Associates.

For the O.P.                : Sri D.K.Mohanty,Advocate & Associates.

 

Sri Bichitra Nanda Tripathy,Member.

                The complaint is against deficiency in service on the part of O.P.

1. Shortly the complaint is that on 6.4.2010 the petitioner exchanged his old Gold necklace for a new one and paid the differential price for the purpose.  But the necklace so purchased on exchange was not up to the choice of his wife for which he wanted to return the new one and take back the old one.  The O.P expressed his inability to return the old one since it has undergone the process of melting.  The complainant wanted to purchase another necklace but the O.P deferred the matter on same plea or other.  Finally the O.P sold one necklace to the complainant on 20.5.2011 but the said necklace was without Hallmark or without the mark of the O.P i.e R.J but the O.P assured the complainant that the quality of the gold necklace was quite good.  Subsequently the complainant wanted to exchange the said gold necklace with a Hall mark necklace to which the O.P did not agree.  The complainant served a legal notice on O.P on 13.8.2011 but it yielded no result.  Finding no other way, the complainant took shelter of this Hon’ble Forum.  He has prayed to direct the O.P to replace the necklace purchased on 20.5.2011 with a new one of same weight and carat of its own manufacturing with RJ seal within a fixed time., compensation for loss of prestige and mental agony amounting to Rs.90,000/-, expenses towards lawyer notice  amounting to Rs.1035/- and cost of litigation worth Rs.3500/-.
2. The O.P vide their written version dt.5.4.2013 has indicated that the O.P does not know the complainant and the complainant has never purchased any article from his shop.  Since the O.P deals with Hallmarks gold and uses the seal of Raj Jewelers (Raj) it is not possible on the part of the O.P to sale any ornament to the complainant without Hallmark/Raj seal.  Vide their written brief dt.29.8.2013 the O.P has intimated that the complainant has not filed any document to prove his status as a consumer rather has filed a estimate issued by M/s. Raj Jewelers on 20.5.2011.  Admittedly, the said estimate memo does not relate to the impugned transaction.
3. The complainant vide his evidence affidavit dt.26.9.2013 has again intimated the facts relating to the complaint  as stated in the petition.  He has also filed copy of estimate-cum- purchase receipt dt.20.5.2011 as a proof of the item purchased from O.P.  Vide counter affidavit the O.P has stated on 8.1.2014 that the estimate memo as submitted by the complainant has been manipulated and does not contain TIN No.  Besides an estimate memo does not establish a sale transaction.  Vide evidence affidavit dt.13.3.2014 one Kenedy Pradhan had intimated that on 20.5.2011 the complainant has purchased a gold necklace from the O.P and the O.P had prepared and submitted the said estimate to the complainant.  Vide objection dt.9.5.2014 the O.P has denied such facts.  The O.P has again denied such facts vide his written submission dt.19.11.2014.
4. We have gone through the case in details, heard the learned advocates from both the sides in length, perused the documents/papers minutely as filed  by the complainant as well by the O.P and have observed as follows:-

The estimate produced by the complainant indicates that on 20.5.2014 one Prabir Baral has visited the shop of M/s. Raj Jewelers and had obtained estimate regarding exchange of a gold necklace against a new one.  The said estimate indicates net amount payable for the new ornament after deducting the weight of the old one.   The signature made in the said estimate is appears to be the same as that of made in the bills of M/s. Raj Jewelers as produced by the O.P.  The O.P has not produced any other copy of such estimate to prove that the complainant has prepared the said estimate of his own.  The net amount payable as per such estimate is Rs.9170/- which is again written at the bottom as Rs.9000/- for which it indicates that the deal was finalized for Rs.9000/-.  Since there is no provision for vat in the estimate copy as provided by the complainant and the O.P has not produced any other copy of such estimate of his own, we presume that the complainant had been to the shop of the O.P on 20.5.2011has purchased a necklace after exchange of an old one and has also obtained such estimate from the O.P as a proof of his purchase. Moreover, from the credit card statement of the complainant it is learnt that the complainant has paid a sum of Rs.8000/- to M/s. Raj Jewelers on 28.4.2005 to which the O.P has not denied.  This indicates that the O.P knows the complainant since long and there were transactions between O.P and the complainant prior to such purchase made by the complainant on 20.5.2011.  From the affidavit made by one Kenedy Pradhan it is also clear that the complainant has visited the shop of the O.P on 20.5.2011 and has purchased the gold necklace from the O.P.

5. Basing on the facts and circumstances as stated above and to meet the ends of justice, we conclude that the O.P is at fault for deficiency in service.

               ORDER

                The O.P will replace the necklace as purchased by the complainant on 20.5.2011 with a new one with of its own manufacturing having same weight (i.e.19.460g.) & carat ( i.e. 22/20) with ‘Raj’ seal.  The O.P will also pay a sum of Rs.10,000/- (Rupees ten thousand)only to the complainant as compensation towards mental agony.  No further order towards cost of litigation.

 The above order shall be carried out within a period of 45 days from the date of receipt of this order, failing which the complainant is at liberty to take shelter of this Court again as per C.P.Act,1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 7^th day of February,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                          Member.

 

                                                                                                                                               

                                                                                                      (  Sri D.C.Barik )

                                                                                                            President.

 

 

                                                                                                     (Smt. Sarmistha Nath) 

                                                                                                 Member(W).