Punjab

StateCommission

A/270/2017

Sandeep Kakkar - Complainant(s)

Versus

Titan Co. Ltd. - Opp.Party(s)

Hakam Singh

12 Oct 2017

ORDER

                                                                                    2^Nd ADDITIONAL BENCH

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

First Appeal No.270 of 2017

                                                          Date of Institution: 17.04.2017

                                                          Order Reserved on :14.09.2017

                                                          Date of Decision:   12.10.2017

Mrs. Sandeep Kakkar wife of Sh.Bhupinder Singh R/o 355-C, Rajinder Estate, Moga-142001.              

                                                                                              Appellant/complainant

Versus

1. Titan Company Limited, registered office:3, Sipcot IndustrialComplex, Hosur-635126, Telephone +914344276037, Email:

                                                                             Respondents/opposite parties No.1&2 

First Appeal against order dated 27.02.2017 passed by the District Consumer Disputes Redressal Forum,  Ludhiana.

Quorum:-

          Shri Gurcharan Singh Saran, Presiding Judicial Member.

         Shri Rajinder Kumar Goyal, Member 

Present:-

          For appellant                :         Sh. Hakam Singh, Advocate

          For respondents          :         Sh.Balkar Singh, Advocate

RAJINDER KUMAR GOYAL MEMBER

ORDER

                    The appellant/complainant (hereinreferred to as complainant) has filed the present appeal against the order dated 27.02.2017 passed in Consumer Complaint No.470 of 07.07.2014 by the District Consumer Disputes Redressal Forum,  Ludhiana (herein referred as District Forum) vide which the complaint filed by the complainant was allowed with the direction that Ops will refund Rs.1,19,277/- to the complainant within 30 days from the date of receipt of order, failing which they will pay interest @8% per annum after lapse of this period till payment. No order as to compensation and litigation expenses was passed.

2.                Complaint was filed by the complainant  under the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter referred as OPs) on the averments that complainant ordered a Solitaire ring from OP No.2, franchise of OP No.1 on 21.04.2014 which included a diamond piece with maximum weight of 49 cent. The same was booked @ Rs. 2.02 lac per carat. The product was having description of colour G, SI2 quality. The estimated cost of the product was INR 1,10,000 to Rs.1,24,000/-. The confirmation of the same was given via SMS to the complainant. Product code was 501177FABMAA02. Complainant paid Rs.60,000/- (Rs.55000/- + Rs.5000) as scheme money on 21.04.2014,  Rs.52,574/- on account of adjustment of old diamond ring given to OP No.2 on 21.04.2014. Besides, Rs.11,703/- were paid in cash on 2.5.2014. The entire amount was paid in advance to OP No.2 against due receipts. The ring was to be delivered to the complainant on 20.05.2014 which was as per receipt issued by OP No.2, but on that date the ring was not delivered to the complainant. Complainant made several calls and also visited personally, but all in vain. On 17.06.2014, OP No.2 made a call to the complainant stating that the ring had reached in the store and complainant can collect the same on 19.06.2014. On 19.06.2014 when the complainant reached the store, OP No.2 disclosed that by mistake the ring was made with 50 cents of diamond instead of ordered ring of 46-49 cents and further told the complainant to pay the diamond rate @Rs. 2.48 lac per carat instead of booking rate @Rs. 2.02 Lac per carat and demanded Rs.1,24,000/- due to extra size of the diamond. The ring was not a skin touch as ordered by the complainant. Op No.2 claimed that this difference occurred on account of mistake on the part of Op No.1, so the ring manufactured was not according to the specifications. Despite discrepancy, the complainant was ready to take the delivery of the ring @Rs. 2.02 lac per carat i.e. at the booking rate. However, OP No.2 refused to deliver the ring to the complainant on the stipulated price even Op no.2 refused to deliver any alternate solitaire ring. Alleging unfair trade practice and deficiency in service the complainant filed the complaint seeking following directions against Ops:-

1. That the ring booked as per specifications should be delivered to the complainant on booked rates immediately.

2. The OP No.1 should deliver a guarantee-certificate to the effect that the ring in question is its genuinely made product and no further modification, alteration or tampering has been done in it at any stage later on.

3. That as the Ops has breached the contract and has not delivered the ring in question in time; the complainant deserves the benefit of Akshay Tritya Gold Coin Scheme of the company.

4. That the OPs should pay an interest @ 18% on the whole amount paid by the complainant for the period from May 20^th, 2014 till realization of amount/booking ring.

5. Damages & compensation for mental & physical harassment and botheration. This is to be mentionable that complainant belongs to and residing at Moga and to reach Ludhiana store complainant have to drive 150 Kms. Each trip.

6. Litigation fee and expenditures.

7. Declaration to the effect that in future, the OPs should mention clearly on their receipts that OPs does not have its own stock or factory as claimed on its websites, because, in real practice the OP No.1 searches for product from the market after booking from the customer, and then start making excuses due to inflation in rates. This declaration should also be displayed on all notices/hoardings at its stores.

3.                Ops No.1&2 contested the complaint and filed their written reply submitting therein that the complaint is not maintainable in the present form being baseless, complaint was filed by suppressing the material facts and coinning a false story. The complainant had initially placed two different orders with OP No.2 on 21.04.2014.The first order was for purchase of one ring 18 carat  with gross weight as 6 gm and paid Rs.52,574/- as advance vide DOC-279 dated 21.04.2014. The second order was for one 18 carat ring with gross weight as 3.3 gm and she had paid Rs.55,000/- as advance vide DOC No.281 dated 21.04.2014. Retail invoice dated 02.05.2014 was issued in the name of complainant for Rs.92,297/- which included a 18 carat ring with gross weight 16.720 grm and stone weight 0.188 gm and complainant was given 22 carat gold coin weight 2.250 grm free of cost merely out of courtesy though she was not entitled to it.  OP No.2 had informed the complainant that the stone so ordered is a natural piece so delivery time depends upon its availability. The complainant was even informed about 10% variation in the value as per availability.  Later on Op No.2 had informed the complainant telephonically that the availability of F-ring is ready in 50 cents. The complainant was ready to get it prepared, but when she visited the store of Op No.2 the complainant learnt that the prices had increased and felt that she is in profit and in order to mint money the complainant asked the OP No.2 to bill the product. However, OP No.2 rightly refused to do so as she was not entitled for cash refund. On it, the complainant and her husband flared up and both of them threatened the staff of OP No.2 to sue them in the Court. OP No.2 had received the ordered product which was ready for delivery in its store but to the dismay of the OP No.1, the husband of the complainant send an e-mail to customer complaint cell of Op No.1. The complainant had kept concealed the facts that she had placed two orders with Op No.2 and had cancelled one of them and thereafter, purchased the ring under Akshya Tritya Scheme and availed the gold coin offer. Complainant was informed by OP No.2 that the order placed by her was in process and at the said stage she can’t cancel the same, but as a favour to the complainant cancellation offer was allowed. In the documents showing the advance payment it was clearly mentioned that Ops will not be responsible for any gold rate variation or for delay. It was also mentioned that diamond and stone prices are subject to change till the delivery of the product or invoicing of the product. It was denied that there was any unfair trade practice or deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.

4.                Before the District Forum the parties led their respective evidence.

5.                In support of their allegations, the complainant had tendered in evidence the affidavit Ex.CA of Sandeep Kakkar (complainant) and Ex.CB of Sh. Bhupinder Singh and even tendered documents Ex.C1 to Ex.C13 and then closed the same. On the other hand counsel for the Ops tendered in evidence affidavit Ex.RA of Sh. Sanjay Maheshwari, Area Business Manager along with documents Ex.R1 to Ex.R9 and then closed the evidence.

6.                After going through the allegations as alleged in the complaint, written version filed by OPs, evidence and documents brought on record the complaint filed by the complainant was allowed as referred above.

7.                Aggrieved with the order passed by the learned District Forum the appellant/complainant has filed the present appeal.

8.                We have heard the learned counsel for the appellant/complainant and respondents/opposite parties No.1&2 and have perused the record carefully.

9.                Counsel for the complainant submitted written arguments and stated that the complainant has been blamed for denying taking the delivery of the ring due to increased diamond prices. The Ops tried to avoid the delivery of the ring with various excuses. First they took one month more than the estimated time, secondly, they made a non-solitaire ring and thirdly they started demanding more price than the booked price. In all a sum of Rs.2,16,574/- was paid to Ops as under:-

1. Rs.52574/- was the value of an old ring sold to Ops vide Tanishq Exchange Form No.135 dated 21.04.2014 as Ex.C-2.

2. Rs.55000/- were paid to Ops by the complainant in eleven monthly EMIs of Rs.5000/- each. Invoice note order No.17, DOC No.281 was issued for this payment and Ops were liable to give any product of her choice with Rs.60000/- after completion of twelve months as Ex.C-5.

3. Rs.1,04,000/- was paid in cash by the complainant. For this payment an advance credit note dated 23.04.2014 was issued by Ops as Ex.C-6.

                   Later on the complainant cancelled the order vide DOC No.279 dated 21.04.2014. From the total amount of Rs.2,16,574/- paid to Ops the complainant purchased a diamond worth Rs.92,297/-on 02-05-2014 as per Ex.C-7. This amount of Rs.92,297/- was adjusted by OP No.2 against amount of Rs.1,04,000/- paid in cash vide receipt Ex.R-6 and for remaining amount of Rs.11,703/- OP no.2 issued a new credit note. As such the total amount due towards Ops is Rs.52,547 + Rs.60,000 + Rs.11,703 = Rs.1,24,703/-.

                   As stated by the Ops that the complainant purchased a ring against Ex.C-7 is not correct. It is clearly established that complainant had purchased a set and not a ring. Counsel for the Ops did not put any arguments but only said Rs.3000/- was payable to the complainant instead of Rs.5000/- as demanded by the complainant in addition to award given by the District Forum.

10.              We are of the opinion that orders vide DOC No.279 & DOC No.281 were booked by the Ops on 21.04.2014 with estimated date of delivery as on 20.05.2014, the complainant was informed of receipt of product from OP No.1 on 17.06.2014. As such there was delay of a month resulting increase in the price of the diamond. The specifications were also changed due to which the complainant refused to take the delivery. Although there was clause No.3 that diamond and stone price, making charges, taxes etc. are subject to change till the delivery of the product/invoicing of the product. The complainant has paid Rs.2,16,574/- in total including Rs.5000/- on account of 12^th EMI of Rs.5000/-  Ex.C-5. Out of this the complainant made a purchase of Rs.92,297/- vide receipt Ex.C-7. On 02.05.2014 wherein a 22 carat gold coin was given free on account of scheme launched “Akshya Tritya” and not on account of the 12^th instalment of Rs.5000/- vide Ex.R-6.

11.              In view of the above it is held that due amount of the complainant with the OPs is Rs.1,24,277/- i.e. (Rs.2,16,574-92297=1,24,277) and not Rs.1,19,277/- as determined by the District Forum.           

12.              Sequel to above, the appeal filed by the appellant/complainant is partly accepted. Order of the District Forum is upheld with modification that Ops will refund Rs.1,24,277/- instead of Rs.1,19,277/- as per terms of the order of  the District Forum.

13.              The appeal could not be decided within the statutory period due to heavy pendency of the Court cases.

14.              Order be communicated to the parties as per rules.

                                                                     (Gurcharan Singh Saran)

                                                                   Presiding Judicial Member

                                                                   (Rajinder Kumar Goyal)

                                                                              Member

October  12, 2017

PK/-