This complaint coming up before us for hearing on 21-04-14                                in the presence of Sri N. Uma Maheswara Rao, advocate for complainant and                                                Sri K. Rama Mohan Rao, advocate for opposite parties 1 and 2, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking a direction to the opposite parties to pay the present market value of the gold ornaments pledged by him; Rs.25,000/- as compensation towards mental agony and torture and for costs.

2.   In brief the averments of the complaint are these:

          The complainant on 13-02-13 borrowed Rs.86,500/- and Rs.72,500/- agreeing to repay the same with interest @22% p.a., vide loan account Nos.GAP 133 and 134.   The complainant pledged gold ornaments weighing 37.19 gms and 31.15 gms for loan accounts i.e., GAP 133 and 134 respectively.   As per terms and conditions the complainant has to clear either interest or principal within six months and in case of failure, term for repayment is nine months.   The opposite parties on 16-08-13 intimated the complainant about their intention to auction the gold ornaments on                     26-08-13.   The said notice was contrary to the terms and conditions.   The complainant on 01-08-13 requested the 1^st opposite party seeking one month time to repay the amount.  Without giving any opportunity to him, the opposite parties auctioned gold ornaments of the complainant to recover the amount.   The complainant issued notice on 18-09-13 to the opposite parties.   The 1^st opposite party refused to receive the notice while the 2^nd opposite party did not chose to give reply.   As per terms and conditions 4 and 6,             the time fixed was on 12-11-13.  Auctioning of gold ornaments of the complainant before 12-11-13 amounted to deficiency of service.   The complaint therefore be allowed.

3.   The 1^st opposite party filed memo adopting the version of the                          2^nd opposite party and their contention is hereunder:

          The complainant on 13-02-13 by pledging gold ornaments weighing 37.190 gross in GAP 133 and 31.150 gross in GAP 134 obtained loan of Rs.86,500/- and Rs.72,500/- respectively.   The complainant did not choose to make any payment either towards principal or interest for a period of six months continuously.  The opposite parties got issued notice as per condition No.3 intimating the complainant about the proposed auction of gold ornaments.   Even then the complainant failed to come up for payment.   The complainant has to pay Rs.1,06,615/- under GAP 133 and Rs.84,172/- under GAP 134.  As per procedure the opposite parties conducted auction on                         03-09-13 and realized Rs.97,973/- under GAP 133 and Rs.82,062/- under GAP 134.   The complainant still has to pay Rs.2642/- and Rs.2110/- under GAP 133 and 134 respectively.   The opposite parties did not commit any deficiency of service.   The complaint is ill conceived and may be dismissed with costs.       

4.  Exs.A-1 to A-11 and Exs.B-1 to B-4 on behalf of the complainant and opposite parties were marked. 

5.   Now the points that arose for consideration in this complaint are:

          1.   Whether the opposite parties committed deficiency of service by                      auctioning gold ornaments of the complainant?

          2. Whether the complainant is entitled to compensation and if so to                      what amount?

          3. To what relief?

6.  Admitted facts in this case are these:

1. The complainant obtained loan of Rs.86,500/- and Rs.72,500/-     under GAP 133 and 134 on 13-02-13 (Exs.A-1 to A-4).

2. The complainant pledged gold ornaments weighing 37.190 and     31.150 under GAP 133 and 134 (Exs.A-1 to A-4).

3. The complainant did not make any payment in respect of above     loans (Ex.A-5).

          4.  The opposite parties issued auction notice (Exs.A-6 and A-7).

          5.  The complainant on 18-09-13 issued notice to opposite parties                        (Ex.A-8).

          6.  The notice addressed to the 1^st opposite party returned with                                      endorsement as refused (Ex.A-10).

          7.  The 2^nd opposite party received notice (Ex.A-9).

7.   POINT No.1:-    The learned counsel for the complainant contended that on 31-07-13 itself the complainant addressed a letter to the opposite parties under registered post requesting time till 26-08-13 to make the entire payment.   To prove the same the complainant filed postal receipt.   As seen from Ex.A-5 (office copy of notice with postal receipt) the complainant posted the same under registered post to the 1^st opposite party.   The opposite parties have not denied about receipt of Ex.A-5 letter.   In the absence of any specific denial, it has to be presumed that the 1^st opposite party received notice as it was sent to the address mentioned in Ex.A-1 and A-3. 

8.      On the reverse of Ex.A-1 and A-3 the terms and conditions were printed in local language i.e., telugu.   The relevant conditions i.e., 1 to 6 reads as mentioned infra:

9.  The due date mentioned on Ex.A-1 and A-3 was 14-03-13.  The rate of interest mentioned in them was 22% p.a.  As per 4^th clause of Ex.A-1 and                 A-3 the duration for discharge of entire loan was nine months. As per       clause 6 of Exs.A-1 and A-3 the opposite parties can auction the pledged articles of a loanee after nine months if the loan amount remained undischarged completely. 

10.    The learned counsel for the opposite parties contended that clause No.4 of Ex.A-1 and A-3 is subject to clause 3.  After going through the above clauses, we are of the view that clause No.3 is not dependent on clause No.4. The opposite parties auctioned the gold ornaments on 03-09-13. The auctioning of the gold ornaments even before the stipulated period in our considered opinion amounted to unfair trade practice and deficiency in service that too after receiving Ex.A-5 letter.  We therefore opine that the opposite parties committed deficiency of service. 

11.  POINT No.2:-   The opposite parties mentioned due date as 14-03-13 in Exs.A-1 and A-3 while they mentioned the due date as 13-05-13 in Ex.B-1 statement of accounts. The opposite parties charged interest at monthly rests and the rate of interest was raised from 22% to 30% during                              13-05-13 – 11-08-13 and from 30% to 36% during 11-08-13 – 03-09-13. The complainant did not dispute the quantum of interest charged by the opposite parties in Ex.B-1.  Therefore, this Forum did not go into that aspect.  The opposite parties did not act as per terms and conditions printed on the reverse of Exs.A-1 and A-3. Inspite of complainant’s requesting time the opposite parties still auctioned the pledged ornaments.   The opposite parties cannot blow hot and cold at the same breath. 

12.    In Exs.A-1 and A-3 the gross weight of gold ornaments was mentioned as 37.190 gms and 31.150 gms.  In Exs.A-1 and A-3 the opposite parties had shown the stone weight as nil.  The opposite parties did not mention the net weight and purity of gold in Exs.A-1 and A-3.  But in Ex.B-3 the opposite parties mentioned the percentage of purity at 89% behind back of the complainant.  Under the above circumstances, directing the opposite parties to value the gold ornaments prevailing as on 03-09-13 taking the purity at 91.6% and ordering refund, if any, after deducting Rs.1,84,787/- together with interest @22% pa, from 04-9-13 till realization will meet ends of justice. 

13. Every human being has a sentiment for gold ornaments. Auctioning those gold ornaments in spite of complainant’s requesting time would have caused mental agony to him.  The complainant claimed Rs.25,000/- for mental agony and torture. The compensation to be awarded should be just and reasonable but not a wind fall. Considering the injury sustained awarding Rs.15000/- as damages will meet ends of justice.   We therefore answer this point in favour of the complainant accordingly.

14.   POINT No.3:-   In view of above findings, in the result the complaint is partly allowed as indicated below:

1. The opposite parties are directed to value the gold ornaments of          complainant weighing 37.190 and 31.150 at 91.6% purity as on          03-09-13.
2. The opposite parties are directed to return the amount if any after deducting the amount of Rs.1,84,787/- as mentioned in Ex.B-3 together with interest @22% pa, from 04-9-13 till realization.
3. The opposite parties are directed to pay Rs.15,000/- (Rupees fifteen thousand only) as compensation and Rs.2,000/- (Rupees two thousand only) as costs.
4. The above order shall be complied within a period of six weeks from the date of receipt of the copy of the order.

 Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 26^th day of April, 2014.

MEMBER                                  MEMBER                                 PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party: 

                                                                                                         PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.