Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case in brief is that the Complainant Amit Jha filed a written complaint stating inter alia that the Complainant in order to urgency of money, being confirmed as per instruction of the O.P. No.1 the Manager, Muthoot Finance Limited on 31.12.18 handed over some ornaments as per schedule described in Para-4 of the complaint for the purpose of gold loan and kept those ornaments under the custody of O.P. No.1, total four Bangles, one Bracelet and one Neklace. After receiving the aforesaid gold ornaments the O.P. No.1 satisfied after due verification and sanctioned a loan of Rs. 1.41 Lakhs on 31.12.18 Vide Loan No.MWS 3192. Thereafter, the Complainant received the cash of Rs.1.41 Lakhs from the O.P. No.1 against the said mortgage. Afterwards the Complainant deposited Rs.70,115/- on 17.01.19 for getting back some ornaments from the custody of the O.P. No.1. The O.P. No.1 then returned four Bangles. On scrutiny the Complainant found that the said Bangles were trimmed and original shapes had been changed due to unnecessary cutting. So, the Complainant suffered irreparable loss. The Complainant also informed to the O.P. No.1 but the OP did not take any steps to redress the grievance of the Complainant. The Complainant therefore lodged a written complaint to the Assistant Director, Consumer Affairs Department, Cooch Behar on 22.01.19 where the OP appeared but the matter remained unresolved. The OP did not replace the said Bangles and as such caused deficiency in service. The cause of action arose on 17.01.19. The Complainant therefore prayed for an award for replacing the said four Bangles or refund the price of four Bangles amounting to Rs.1,18,891/-, Rs.50,000/- towards mental pain and agony, Rs.50,000/- for deficiency in service and Rs.10,000/- towards cost of proceedings.
The O.P. No.1 & 2 both contested the case by filing written version wherein they denied the major allegation against them.
The positive defence case of the OP in brief is that it is admitted fact that the Complainant took loan in exchange of the said gold ornaments. For obtaining the said gold loan of Rs.1.41 Lakhs the Complainant deposited 60gm. of gold ornaments to the OP as per the conditions and norms of the O.Ps. The O.Ps thereafter primarily verified those gold ornaments as per the rules. The Method of testing were (1) Colour Test (2) Sound test (3) Weight test (4) Finishing test (5) Magnifying glass test (6) Flexibility test (7) Laboratory test (8) Nitric acid test (9) Salt test. After going through the primary testing, O.P. No.1 sanctioned the loan of Rs.1.41 Lakhs in favour of the Complainant on 31.12.18 vide loan No.02879/MWS/003192 for a period of 12 months after being satisfied with the quality of the gold ornaments wherein they explained all the terms and conditions for said gold loan. The Complainant agreed with those terms and conditions and signed all the necessary documents and then the loan was sanctioned accordingly. On 17.01.19 the Complainant made a part payment of Rs.70,415/- out of total loan of Rs.1.41 Lakhs and prayed for return of some ornaments. Then the OP received the amount of Rs.70,415/- and issued money receipt out of which Rs.69,000/- was actual loan and Rs.1410/- towards interest and Rs.5000/- for other charges. After proper calculation the O.P. No.1 returned 4 Bangles from his safe custody to the Complainant who received the same after being fully satisfied with the quality and quantity of the ornaments and left the Office. At that time O.P. No.1 issued another loan sanctioning letter for Rs.72,000/- on 17.01.19 in favour of the Complainant but at that time the Complainant did not raise any objection against the said Bangle. The Complainant again came to the Office and made an oral complaint alleging that he found from cut marks on those Bangle. The O.P. No.1 told the Complainant that the said cut mark might took place for verifying the purity of the ornaments by the auditor of the Complainant without causing any damage to the ornaments. The O.P. No.1 attended the meeting at Consumer Affairs Department, Cooch Behar on 15.02.19. Had the Complainant lodged any complaint to the O.P. No.1, then they could have brought the dispute to the notice of the higher authority of the OP company. The Complainant did not file any custody evidence. There was no wilful act or omission or Commission on the part of the O.P. No.1 and as such there was no deficiency in service. The O.P. No.1 always adviced the Complainant to follow the terms and conditions. The O.P. No.1 claimed that the case is liable to be dismissed with cost.
Having considered the nature of the dispute the Commission finds it reasonable to resolve the dispute on the following points.
Points for Determination
- Whether the case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The pleading of both the parties and evidence on record disclose that the Complainant mortgaged some ornaments against which he received gold loan for a sum of Rs.1.41 Lakhs. It is the admitted fact that the OP Company granted the loan after verifying the ornaments with some terms and conditions. Thus the relation between the parties is well within the purview of the C.P. Act. The nature of the transaction and relief claimed is also within the pecuniary jurisdiction of this Commission. The present case is also filed within the limitation period.
Having considered all the aforesaid aspects the Commission comes to the finding that the present case is maintainable in its present form and prayer subject to ascertainment of relief which would be decided under the Points No. 2 & 3.
Accordingly, Point No.1 is answered in affirmative and decided in favour of the Complainant.
Points No. 2 & 3.
Both the points are very closely interlinked with each other and accordingly these are taken up together for brevity and convenience of discussion.
It is the admitted fact that the Complainant in order to meet some urgent demand of money deposited four Bangles, one Bracelet and one Neklace made of gold with the O.P. No.1 against which he took a gold loan on 31.12.18 for Rs.1.41 Lakhs Vide Loan No. MWS 3192. After one month of the said deposit the Complainant repaid the loan of Rs.70,415/- on 17.01.19. After receiving that amount the O.P. No.1 the Manager, Muthoot Finance Limited being Branch Office at Cooch Behar, P.S. Kotwali returned four Bangles.
The dispute arose when the Complainant after scrutiny and checking the said ornaments after a few time found that the said Bangle were trimmed and original shape were changed due to cutting.
The Complainant in order to substantiate the case proved Annexure-A which is an appraisal note wherein the deposit of Bangles, Bracelet and Neklace stand proved.
Annexure-B is the document which discloses that the Complainant repaid Rs.70,415/- out of which Rs.69,000/- towards principal amount Rs.1,410/- towards interest.
Although these are admitted facts yet the Complainant proved this document to discharge their onus.
Annexure-C is the photo copy of the Bangles wherein three cut marks shown in those Bangles.
In course of hearing of the case Ld. Advocate for the OP prayed for producing the original Bangles before the Court for inspection as to the cut mark of the said Bangle.
Accordingly, the Complainant produced four pieces of Bangles out of which both the parties as well as the Commission itself found that there are cut marks in three pieces of Bangles.
Ld. Advocate for the OP drew the attention of the Commission wherein the terms and conditions for taking the gold loan include as per Annexure-1 that Clause-21 disclosed that the employees/ auditors of the company will have the right to verify the purity of the ornaments adopting the standard appraisal methods. As per Clause-23 if the borrower has any grievance about any of the loan availed against the security he shall first bring it to the notice of the Branch Manager.
After perusing the said terms and conditions specially Clause -21, the Commission finds that the Company has right to verify the purity of the ornaments but it is important to consider that there is no specific clause as to return of the mortgage article after redemption of the loan.
It is the general rule that a mortgage article should be returned in original condition and shape after repayment of mortgage money.
During hearing and argument the Manager of the O.P. No.1 was present and submitted that the OP wanted to repair the said ornaments through local goldsmith of the O.P. No.1 but the Complainant refused to the said proposal of the O.P. No.1. Instead the Complainant submitted that since the said ornaments were manufactured by a brand gold Company of the Complainant in Calcutta so it involved huge cost for repairing and they were willing to repair it through the original manufacturer of the ornaments for maintaining the actual shape and design of the ornaments.
The Complainant is also present in course of argument.
After perusing all the documents and evidence in the case record as well as the submission of both the parties the Commission finds that an ornament is used by the user for maintaining some style and fashion as well as a mark of celebrating a ceremony like marriage, birthday etc. So particular ornament manufactured by a brand Company may be preferred to be repaired by that particular brand Company only. But the given facts and circumstances in this case would justify the demand keeping balance with the justice in respect of grievance and the defence case proved by the OP. So, the justice would prevail if a reasonable cost of repair for the said ornaments is granted which will be borne by the OP Company.
Regard being also had to the defence argument submitted by the Ld. Defence Counsel to the effect that there is a considerable delay in lodging the complaint to the OP Company.
After perusing the copy of the proceedings before the Consumer Affairs Department it is found that the OP Company took the defence plea that as the Complainant did not raise any grievance at the time of delivery of the ornaments so the Company is not liable.
The said argument is not acceptable in as much as the cut mark in the ornaments are so small that apparently it may not be visible at a glance at the time of taking delivery of the said ornaments which can only be found during close scrutiny.
That apart the Complainant seems to have repaid the loan against the ornaments and as such he can reasonably expect that the said ornament set has to be returned. The OP Company during disbursement of loan verifies and inspects the ornaments and having satisfied about the quality of the gold sanctioned the loan so it is the duty of the OP Company to return the ornaments in its original shape and condition. After perusing the different terms and conditions it is found that there is no time limit that any grievance should be lodged within any specific time limit. Clause-16 and 23 only disclose about the intimation to the Branch Manager but no time limit is fixed under the said terms and conditions.
Thus having assessed the entire evidence in the case record and in the backdrop the discussion made herein above the Commission comes to the finding that the Complainant is entitled to recover reasonable cost of repair from the OP to a certain extent.
The refusal to redress the grievance of the Complainant by the OP has amounted to deficiency in service.
Accordingly, Points No. 2 & 3 are answered in affirmative in favour of the Complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/76/2019 be and the same is allowed on contest with cost of Rs.5,000/-.
The Complainant do get an award for a sum of Rs.25,000/- towards cost of repair of four Bangles, Rs.5,000/- towards deficiency in service, Rs.5,000/- towards compensation for mental pain and agony.
The O.P. No.1 & 2 are directed to pay a sum of Rs.40,000/- to the Complainant within 30 days from the date of passing Final Order failing which the Complainant shall be entitled to recover it from the O.Ps alongwith interest as per provision of law @ 6% per annum.
The Complaint case is accordingly disposed of.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
