Advocate Parmeshwar D. Pawar for the Complainant
Advocate A. Rajendra K. Shetty for the Opposite Party
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 20th March 2013
This complaint is filed by the aggrieved consumer against the Jeweler for deficiency in service. Brief facts are as follows-
[1] The complainant is a Government Servant and he has belief in astrology and numerology. He was advised to wear Cats Eye Gem Stone by his Astrological Advisor. He has purchased the said stone at Kolkatta for Rs.14,000/-. He approached to the Opposite Party for fitting the said stone in his gold ring. The said stone was tested in Pangem Testing Laboratory, Tadiwala Road, Pune. On 5/8/2011 the gold ring was delivered by the Opposite Party by fitting the said stone in the gold ring. As per the Astrological belief he worn the said ring on 6/8/2011 and within 36 hours from the wearing of the ring the part of the said stone automatically came out from the ring i.e. on 7/8/2011 at about 8 p.m. On examination it was disclosed that the stone was cracked and the pieces of stones were joined by adhesive like chemical as the stone was broken at the hands of technician of the Opposite Party. While stone was tested from the laboratory there was no any sort of crack and it was in good condition while handing over to the technician of the Opposite Party. When the complainant returned to the shop of the Opposite Party on 09/8/2011 the ring was inspected by the concerned staff and the staff was convinced about the genuineness of the loss and promised to install a new stone at the cost of the Opposite Party. Repair challan was prepared accordingly and the complainant was asked to return for getting the delivery of the stone on the date which was mentioned on the repair challan. However on 10/8/2011 complainant had received phone call from the Opposite Party and he was called in the shop and the Manager straightly denied about the incidence which was happened. The Manager has also asked the complainant to return the repair challan and directed the complainant to take back the gold ring alongwith broken Gem Stone.
Eventhough the Opposite Party promised to replace the stone subsequently it has resiled from it promise. The complainant sent letters and requested the Opposite Party to replace the broken stone and install the same in the gold ring. The Opposite Party did not pay any heed to the requests of the complainant. Ultimately the complainant has filed present complaint and asked price of the stone i.e. Rs.14,000/- and compensation on the ground of mental agony and stress to the tune of Rs.50,000/-. The total claim of the complainant is Rs.64,000/-. He has further asked costs of Rs.10,000/- towards costs of the present litigation and also requested to direct the Opposite Party to handover the gold ring.
[2] The Opposite Party appeared through Advocate and filed written version and resisted the claim of the complainant. It is admitted by the Opposite Party that the complainant approached the Opposite Party for fitting the alleged Cats Eye Gem Stone in the gold ring. The stone was fitted in the gold ring and the ring was delivered to the complainant on 5/8/2011. But it is flatly denied by the Opposite Party that the stone was broken at the hands of the technician of the Opposite Party. According to the Opposite Party the said stone was broken due to the accident and the complainant wants to change the same hence he came to the shop of the Opposite Party and staff of the Opposite Party agreed for repairs. Thereafter the complainant flatly denied to pay the cost of the stone and alleged that the stone was damaged while fitting in the ring by the technician of the Opposite Party. It is contended by the Opposite Party that while taking delivery of the ring on 5/8/2011 the ring alongwith stone was in proper condition. The complainant had inspected the ring but he has not made any complaint at that time as there is no any fault on the part of the Opposite Party. It is not responsible to compensate the complainant and the Opposite Party has prayed for dismissal of the complaint with costs.
[3] In order to support the contention the complainant has filed his own affidavit as well as affidavit of his colleague Mr. Sangharatna Keshav Kamble and the documentary evidence such as receipt of the stone, the testing report, copy of the delivery challan, the office copies of the notices along with all receipts, the receipt of the ring which is purchased from the Opposite Party, the copy of e-mail which was received by the complainant from the Opposite Party. The Opposite Party has filed affidavit of Mr. Raju Vitthal Jaibhai in order to support its contention who is authorized person as per resolution dated 21/11/2011.
[4] After hearing the argument of both counsel and scrutinizing the documentary evidence on record following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that the Opposite Party has rendered defective service while fitting the stone in his ring ? | In the affirmative |
2 | Whether the complainant is entitled for compensation ? | In the affirmative |
3 | What order ? | Complaint is partly allowed |
REASONS-
Point Nos. 1 to 3-
The admitted facts in the present proceeding are that the complainant approached to the Opposite Party alongwith Cats Eye Gem Stone for fitting the same in the gold ring. He has purchased the gold ring from the Opposite Party and requested the Opposite Party to fit the said stone. That transaction took place on 5/8/2011. The averments of complaint to that context are corroborated by documentary evidence such as receipts issued by the Opposite Party, the test report of the stone and the receipt of the stone which was purchased by the complainant.
There is dispute between the parties as to at whose instance the stone was broken. According to the complainant it was broken at the instance of the technician of the Opposite Party and according to the Opposite Party it was broken accidentally at the instance of the complainant. In order to determine this crucial question the documentary evidence as well as correspondence between the parties should be scanned minutely. Both parties have filed affidavit in support of their rival contentions. But these are words against words. Then we have to rely upon the documents which were prepared in natural corollary by the parties. It reveals from the documentary evidence that the complainant had purchased the Cats Eye Gem Stone for Rs.14,000/- on 07/07/2011. The receipt of the stone is produced on record. Subsequently he got tested the said stone from Pangem Testing Laboratory and the said report is also produced on the record. The receipt which is issued on 5/8/2011 is disclosing that the complainant had purchased the gold ring from the Opposite Party worth Rs. 1845/-. It reveals from the Repairing Challan dated 09/8/2011 that the complainant approached the Opposite Party for repairing the stone on the said day and the Opposite Party agreed to return the ring by fitting the stone on 13/8/2011. It further reveals from the said challan that it was agreed that after receiving the stone it is to be shown to the complainant and thereafter it was to be fitted in the gold ring.
The correspondence between the parties is disclosing that the complainant had sent notices to the Opposite Party on 16/8/2011 and 7/9/2011. Both these notices were received by the Opposite Party. The acknowledgement receipts are also produced on the record. In both these notices the complainant asked the Opposite Party to replace the stone and return the gold ring as per the promise. The Opposite Party has sent reply by e-mail on 15/09/2011 in which for the first time the Opposite Party has disclosed that at the time of delivery of the ring the Gem Stone was in proper condition and the Opposite Party cannot take any guarantee for breakage of any ornament or stone. It was also informed to the complainant that please collect the gold ring on or before 25/9/2011 and thereafter the Opposite Party is not responsible for any damage. If these correspondence, repair challan and receipts are perused carefully it is crystal clear that at the time of preparing the Repair Challan nothing was mentioned about the price of the Cats Eye Gem Stone. Nowhere it is mentioned that the complainant has to pay price of the said stone. It is also significant to note that there is no record produced by the Opposite Party to show that the complainant agreed to pay price of the Cats Eye Stone as well as labour charges for the same. Evenafter receiving the two notices in detail by the Opposite Party it has not denied specifically about the alleged incidents which were happened on the previous dates. This also indicates that the defence of the Opposite Party is after thought and the story which is put-forth by the complainant appears to be true and correct. If there is any iota of truth in the story of the Opposite Party there must be record as regards the terms and conditions of the repairs of the gold ring after it was produced by the complainant in the shop of the Opposite Party. None of the staff member has filed affidavit in order to support the story of the Opposite Party. The technician who has fitted the stone was the best available person to disclose as to whether the stone was in proper condition while it was fitting. But the Opposite Party has failed to produce the evidence which is available. On the contrary the complainant has produced the documentary evidence as well as affidavit of his friend who accompanied him in the shop of the Opposite Party. In such circumstances I held that the evidence which is produced by the complainant appears to be more probable than the evidence of the Opposite Party. In my opinion the complainant has proved that he had handed over Cats Eye Gem Stone to the Opposite Party for fitting the same in the gold ring. He has also proved that the said stone was broken at the instance of the technician of the Opposite Party and he is entitled for the price of the said stone i.e. Rs.14,000/-. He is also entitled to get compensation of Rs.10,000/- for mental and physical torture and Rs.5,000/- by way of costs of proceeding.
In the result I answer points accordingly and pass the following order-
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the Opposite Party has caused deficiency in service while selling the gold ring after fitting the Cats Eye Gem Stone in the same.
3. The Complainant is entitled to get price of the Cats Eye Gem Stone Rs.14,000/- along with interest @ 9% p.a. from the date of filing of the complaint i.e. 21/10/2011 till its realization.
4. The Complainant is entitled to get Rs.10,000/- by way of compensation on the ground of mental and physical torture from the Opposite party.
5. The Complainant is entitled to get Rs.5,000/- by way of costs of proceedings from the Opposite party.
6. The Opposite party is directed to return the gold ring to the complainant.
7. The Opposite party do comply with the aforesaid order within six weeks from the date of receipt of copy of this order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 20/03/2013
