Andhra Pradesh

Chittoor-II at triputi

CC/23/2014

Smt. L.Krishnaveni W/o. L.Madhusudhan Reddy - Complainant(s)

Versus

The Authorized Signatory,Malabar Gold and Diamonds, - Opp.Party(s)

K.Chakravarthy

29 Dec 2015

ORDER

Filing Date:02.06.2014

Order Date:29.12.2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

TUESDAY THE TWENTY NINTH DAY OF DECEMBER, TWO THOUSAND AND FIFTEEN

 

 

C.C.No.23/2014

 

Between

 

Smt.L.Krishnaveni,

W/o. L.Madhusudhan Reddy,

D.No.8-133 (Plot No.23), Sri Nagar Colony,

R.C.Road,

Tirupati.                                                                                                         … Complainant

 

 

And

 

1.         The Authorized Signatory,

            MALABAR GOLD & DIAMONDS,

            Malabar Jewels & Gems Pvt. Ltd.,

            No.13, Dickenson Road,

            Bangalore – 560 042,

            Karnataka State.

 

2.         MALABAR GOLD & DIAMONDS,

            Rep. by its Authorised Signatory,

            having business at N.T.R. Circle,

Tirupati,

Chittoor District.                                                                  …  Opposite parties.

 

 

 

            This complaint coming on before us for final hearing on 15.12.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Chakravarthy, counsel for the complainant, and Sri.K.Neeladri, counsel for the opposite party No.2, and opposite party No.1 remained exparte, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections-12 and 14 of C.P.Act 1986 by the complainant for the following reliefs 1) to direct the opposite parties 1 and 2 to give certification (with photo of ornaments) and original bill, with promise of buy back the Ruby with 75% of prevailing rate for complainant’s purchase made on 11.05.2013,     2) to direct the opposite parties to pay Rs.50,000/- towards compensation for unfair trade practice and for mental agony caused to the complainant and 3) to direct the opposite parties to pay Rs.50,000/- towards expenses, such other or further reliefs as the Forum deem fit and proper in the circumstances of the case.   

            2.  The averments of the complaint in brief are:-   that the complainant purchased a) gold necklace, b) one pair gold studs, c) one gold bangle and d) gold finger ring, with gross weight of 67.78 grams for Rs.2,19,000/- from the showroom of opposite party No.1 on 11.05.2013, that opposite party No.1 has promised to buy back the ruby with 75% of prevailing rate. Opposite party No.2, is the branch of opposite party No.1, doing business in the name and style of ‘Malabar Gold & Diamonds’ at Tirupati.

            3.  At the time of payment and delivery of gold ornaments, opposite party No.1 issued estimation slip only and promised to send the bill to the complainant’s residential address within 2 or 3 days, but failed to do so. Despite repeated demands, letter dt:15.06.2013 and a legal notice dt:30.08.2013, the opposite parties neither send the original bill nor gave reply. Hence the complaint. 

            4.  Opposite party No.1, remained exparte.

            5. 2^nd opposite party filed its written version contending that the complainant purchased gold ornaments at Bangalore from opposite party No.1, who is paying necessary taxes to Government of Karnataka. The jurisdiction is subjected to Bangalore Courts only. Opposite party No.2 is Malabar Gold and Diamonds, Splendour Gold Collections LLP (Branch), Tirupati, got its head office at Vijayawada, Krishna District. Opposite party No.2, is in no way concerned to the business of opposite party No.1. The customer invoice itself is a bill. That the dispute arose due to negligence of the complainant. This Forum has no jurisdiction to entertain the complaint. Complaint is filed for wrongful gain. There is no deficiency in service on the part of opposite parties. Opposite party No.2, is not a necessary party. Therefore, the complaint against opposite parties is liable to be dismissed on the ground of misjoinder of parties and prays the Forum to dismiss the complaint with costs.

            6. Complainant and opposite party No.2, filed their respective evidence affidavits as P.W.1 and R.W.1 and got marked Exs.A1 to A8 for the complainant. No documents were marked for the opposite parties.   

            7.  Now the points for consideration are:-             

            i) Whether there is deficiency in service on the part of opposite parties 1 and 2?

            ii)  Whether there is unfair trade practice on the part of opposite parties?

            iii)  Whether the complainant is entitled to the reliefs sought for?

            iv)  To what relief?

            8. Points (i) and (ii):- before answering this point, it is necessary to state whether this Forum got jurisdiction to entertain the complaint. Section-11, Clause.(2) of C.P.Act envisages as follows:-

(2)  a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction – (a)  the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b)  any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part arises.

 

            In view of Section-11, Clause.(2), this Forum has territorial jurisdiction to entertain the complaint. Though the complainant purchased the gold ornaments described supra at Bangalore in the showroom of opposite party No.1, since opposite party No.1 has its branch office at Tirupati, within the jurisdiction of this Forum and carrying on business personally for gain.

            9. For the reasons best known, opposite party No.1 from whom the complainant purchased gold ornaments viz. a gold necklace, one pair gold studs, one gold bangle and one gold finger ring on 11.05.2013, opposite party No.1 is expected to pass on a bill in favour of the complainant for the goods purchased by her. The quantum of gold ornaments so purchased is 67.78 grams, worth Rs.2,19,000/-. Instead of passing on bill, opposite party No.1 has simply gave an estimation under Ex.A1 dt:11.05.2013, in favour of the complainant. Complainant contending that opposite party No.1, has promised to send original bill in favour of the complainant, to her residential address within two or three days, from the date of purchase, but till today opposite party No.1 has not furnished such original bill to the complainant. Though the complainant has addressed a letter to the opposite parties on 15.06.2013 and also gave notice on 30.08.2013 for both the opposite parties, they received the notice and simply kept quiet. Failure in passing on the original bill in favour of the purchaser / complainant itself amounts to unfair trade practice. Simply passing on an estimation under Ex.A1 does not amounts to passing on bill in favour of the purchaser. Therefore, the contention of opposite party No.2 in its written version and chief affidavit that the estimation itself is a bill cannot be sustained. Generally, the person, who exhibited the gold ornaments to the purchaser will supply the estimation for the gold ornaments selected and purchased by the purchaser and on producing the said estimation before the counter / casher, basing on such estimation, bill will be issued in favour of the purchaser immediately after collecting the estimated cost of the ornaments, but in this case, the opposite parties does not follow the procedure. Ex.A7 issued by opposite party No.1 discloses that ‘Buy – back’ policy Gold Exchange: As per the prevailing rate, Cash: 99% of the prevailing rate, Precious stones Exchange: 75% of stone value, Cash: 70% of stone value, under a specific note NB:- Bill must be produced at the time of exchange or encashment. In the head of service it also mentioned lifelong free maintenance. It clearly establishes that if the purchaser wants to exchange the gold ornaments, necessarily bill should be produced. Opposite party No.1, when failed to pass on bill in favour of the purchaser, it amounts  the right of purchaser is curtailed for exchange of gold ornaments or so. The retail invoice under Ex.A4 dt:13.05.2013 proves that the complainant Krishnaveni has purchased gold ornaments weighing 67.78 grams for Rs.2,19,000/-. Thus the purchase of gold by the complainant is established by producing Ex.A4. On the overleaf of Ex.A4 some terms and conditions were mentioned, even according to the said terms and conditions, under 7^th condition it is specified that Buyback subject to production of original bill, the rate will be as per the prevailing ‘buyback’ policy of the showroom. It seems that opposite party No.1 does not want to stick on to the terms and conditions set out in their business. Non-furnishing / non-supplying of original bill to the purchaser amounts to unfair trade practice. That apart opposite party No.1 did not appear before the Forum though notices were served on it, and remained exparte, which implies that opposite party No.1 has no case to contest. Under the above circumstances, we are of the opinion that there is unfair trade practice and also deficiency in service on the part of opposite parties. Accordingly this point is answered.

            10.  Point No.(iii):-  to answer this point, we have to state that admittedly the complainant is a purchaser. She purchased the above referred gold ornaments from opposite party No.1 on 11.05.2013. The gold ornaments are weighing 67.78 grams for Rs.2,19,000/-. Since the complainant has paid a sum of Rs.2,19,000/- towards cost of the gold ornaments weighing 67.78 grams, she is a consumer within the meaning of Section-2(i)(d) of C.P.Act. Opposite party No.1, ought to have issued the bill for the gold ornaments purchased by the complainant. But so far, no bill is issued in favour of the complainant by opposite party No.1, from whom the complainant purchased said gold ornaments, instead of issuing the bill, opposite party No.1 has issued only estimation under Ex.A1 and thereafter no response is given by opposite party No.1 to the letter and notice given by the complainant. Even after filing the complaint, opposite party No.1 remained exparte even without making appearance either in person or through its agent. Opposite party No.2 stating that estimation itself is a bill, it is totally unsustainable. The traders like opposite parties 1 and 2 are luring the public to promote their business and after the customers like the complainant approach the trader and purchased some gold ornaments by paying huge amount of Rs.2,19,000/-, opposite party No.1 has no minimum courtesy, atleast to issue bills for the ornaments purchased. Perhaps it may be the reason for non-issuing the bill is to prevent the complainant / consumer from exchanging the gold ornaments, so purchased. In order to exchange the gold ornaments necessarily the purchaser has to produce the original bill. It clearly shows that in case the original bill is not produced, the trader won’t abide by the exchange offer made by them. Such practice is certainly amounts to unfair trade practice. Even after letter from the complainant under Ex.A2 and notice under Ex.A5, they did not respond for issuing the original bill, though the ornaments were purchased on 11.05.2013, and 2 years and 7 months period was elapsed till today, the opposite parties are not interested in passing on the bill in favour of the complainant despite her purchase, payment and notice. So, it amounts to deficiency in service on the part of opposite parties. In view of the unfair trade practice and deficiency in service on the part of opposite parties, the complainant is entitled to the relief sought for. Accordingly, this point is answered.

            11.  Point No.(iv):- in view of our holding on points 1 to 3, we are of the opinion that the complainant / consumer has established her case that opposite parties 1 and 2 adopted unfair trade practice and there is deficiency in service on the part of opposite parties, as such complaint is to be allowed.

            In the result, complaint is allowed in part directing the opposite parties 1 and 2 to issue certification and original bill for the gold ornaments purchased by the complainant on 11.05.2013 along with promise / undertaking to purchase back Ruby with 75% of prevailing rate for the above referred ornaments purchased by the complainant. Opposite parties 1 and 2 further directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards damages for unfair trade practice and Rs.10,000/- (Rupees ten thousand only) for the deficiency in service on the part of opposite parties 1 and 2 and they also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. Opposite parties 1 and 2 are hereby further directed to comply with the order within six (6) weeks from the date of receipt of copy of the order, failing which the total amount of Rs.30,000/- shall also carry interest at 9% p.a. from the date of complaint, till realization.                                 

            Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 29^th day of December, 2015.

 

       Sd/-                                                                                                                      Sd/-                                                                                          

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant.

 

PW-1: Smt. L. Krishnaveni (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite Parties.

 

RW-1: Sri D. Purushotham (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

 

Exhibits (Ex.A)	Description of Documents
	Estimation Slip with delivered endorsement issued by 1st Opposite Party (Original). Dt: 11.05.2013.
	Registered Letter addressed to 1st Opposite Party with postal receipt (17.06.2013) (Original).  Dt: 15.06.2013.
	Postal Acknowledgement of 1st Opposite Party. Dt: 02.06.2014.
	Invoice issued by the 1st Opposite Party with postal cover (Original). Dt: 13.05.2013.
	Office copy of legal notice issued to the opposite parties with postal receipts (Original). Dt: 30.08.2013.
	Two Postal Acknowledgements of Opposite Parties. Dt:02.06.2014.
	Bill must be produced at the time of exchange or encashment, Malabar Gold & Diamonds.
	Pamphlet of Malabar Gold & Diamonds.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTYs

 

NIL

 

                                                                                                                                    Sd/-      

                                                                                                               President

            // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

             Dist. Consumer Forum-II, Tirupati.

               

 

Copies to:-     1. The complainant.

                       2. The opposite parties.