Punjab

Ludhiana

CC/14/470

Mrs.Sandeep Kakar - Complainant(s)

Versus

Titan Co.Ltd - Opp.Party(s)

27 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

 

Consumer Complaint No. 470 of 07.07.2014

Date of Decision          :   27.02.2017

 

Mrs.Sandeep Kakkar w/o Sh.Bhupinder Singh r/o 355-C, Rajinder Estate, Moga-142001.

….. Complainant

Versus 

1.Titan Company Limited, Registered Office:3, Sipcot Industrial Complex, Hosur-635126.

2.Titan Company Limited, No.41, Feroze Gandhi Market, Ludhiana-141001.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Sarvjit Singh, Advocate

For OPs                         :         Sh.R.K.Bhandari, Advocate

 

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant claims to have ordered a Solitaire ring from OP2 franchise of OP1 on 21.4.2014. This ring included a diamond piece with maximum weight of 49 Cent. It was booked @2.02 lac per carat. The product was having description of colour G, SI2 quality. Confirmation of the same was given via SMS to the complainant. Total estimated cost of the product was INR 1,10,000/- to Rs.1,24,000/-. Product code of this order was 501177FABMAA02. Complainant paid Rs.55000/- + Rs.5000/- as scheme money on 21.4.2014, but Rs.52,574/- on account of adjustment of old diamond ring given to OP1 on 21.4.2014. Besides, Rs.11,703/- were paid cash on 2.5.2014. Entire amount was paid in advance to OP2 against issued receipts. The booked ring was to be delivered to the complainant on 20.5.2014 as per mention made in the receipt issued by OP2. However, despite repeated telephonic calls and two personal visits by the complainant to OP1 from Moga, the ring was not delivered upto 17.6.2014. On 17.6.2014 itself, the complainant called OP2 and was disclosed that the ring has reached in the store and complainant can collect the same on 19.6.2014. However, when the complainant reached at store along with her husband on 19.6.2014, then she was disclosed that by mistake, the ring was made with 50 cents of diamond instead of ordered ring of 46-49 cents. Further, the complainant was called upon to pay the diamond rate @2.48 lac per carat instead of booking rate @2.02 per carat. OP2 demanded Rs.1,24,000/- due to extra size of the diamond. The ring was       not a skin touch as ordered by the complainant. OP2 claimed that this difference occurred on account of mistake on the part of OP1, so the ring manufactured was not according to the specifications. Despite discrepancy, the complainant was ready to take the delivery of the ring @2.02 lac per cent i.e. booking rate. However, OP2 refused to deliver the ring to the complainant on stipulated price. Even OP2 refused to deliver any alternate solitaire ring. Complainant lodged complaint with OP1 on the same date, who acknowledged the same through email. On 20.6.2014, the complainant lodged detailed complaint with OP1 stating all the facts. Request was made to provide ring as ordered on negotiated booking rate along with written assurance that the ring was manufactured by Op1 only without any modification, alteration or tampering. Even through this request of date 20.6.2014, claim for compensation for delay in delivery with interest @ market rate on payment was put forth. Compensation for mental and physical harassment even    is sought because complainant has to pay extra visits. Though, Ops assured to do something, but they have not done anything. Response was received on phone calls to the effect that seniors are working on the issue. On 26.6.2014, again the complainant sent writing to the Ops. Telephonic reply was submitted by the complainant, but no action taken. Despite phone call on 28.6.2014 and 30.6.2014, nothing was done. However, on 3.7.2014, complainant got an email from OP1 where through fault was admitted. Complainant booked the ring in question on 21.4.2014 and during this time, the company floated a scheme named as Akshay Tritya Gold Coin Offer. As per this scheme, every purchase of worth of Rs.10,000/- was entitled for the gold coin weighing .025 gm of 22 carat as incentive. This scheme was to commence just one week after booking of the ring. Had the complainant purchased the ring during the offer period, then she would have availed the incentive of gold coin. However, time factor was very material for the complainant, due to astrological prescription and as such, she had to forgo the scheme of incentive. By doing so, complainant booked the ring in question just 10 days prior to the implementation of the scheme by paying of the price in advance. By pleading adoption of unfair trade practice by Ops, direction sought against Ops for directing them to deliver the ring booked as per specifications on the booked rates. Even directions sought against OP1 to deliver the guarantee certificate to the effect that ring in question is the genuine product of OP1 manufactured without modification, alteration or tampering. Besides, due to late delivery of the ring in question, complainant claims to be entitled for the benefit of Akshay Tritya Gold Coin scheme. Interest @18% per annum on the whole paid amount w.e.f. 20.5.2014 till realization claimed. Litigation fee and expenditures even claimed along with declaration that Ops should mention clearly in future on their receipts that they do not have its own stock or factory as claimed on the websites. 

2.                In written statement filed by Ops, it is pleaded interalia as if the complaint is not maintainable in the present form being baseless; complaint has been filed by suppressing the material facts and coining a false story. Besides, it is claimed that the complainant had initially placed two different orders with OP2 on the same date namely 21.4.2014. Details of those orders are given below:-

a)To purchase one 18 carat ring yellow, with gross weight as 6.000 carat, bearing product code no.501177FABMAA02, with estimated delivery date as 20.5.2014 and she had paid Rs.52,574/- as advance vide DOC No.279 dated 21.4.2014 against the estimated order value as Rs.85,055.10P & budget range of Rs.1,15,000/- to Rs.1,25,000/- with weight range as 5.90- 6.00 gm against the said specific order, whose details are evident from Tanishq Priority Order & credit Note bearing Ref. No.16 dated 21.4.2014.

b)One 18 carat ring yellow, with gross weight as 3.300 carat, bearing product code No.501177FABMAA02, with estimated delivery date as 20.5.2014 and she had paid Rs.55,000/- as advance vide DOC No.281 dated 21.4.2014 against the estimated order value as Rs.78,5882.75P and budget range of Rs.1,10,000/- to Rs.1,24,000/- with weight range as 3.19-3.30 gm, against the said specific order, whose details are evident from Tanishq Priority Order and Credit Note bearing Ref. No.17 dated 21.4.2014.

3.                Retail invoice No.LDT/CM/524 dated 2.5.2014 was issued in the name of the complainant for Rs.92,297/-, which included Rs.91,292.78P as price of the 18 carat ring bearing variant number/product description No.5011822JEABA07, with gross weight 16.720 gm and stone weight 0.188 gm with net weight as 16.532 gm + Rs.1,004.22P as VAT @1.1%. Besides, it is claimed that the complainant was given one 22 carat gold coin weighing 2.250 gm free of cost merely out of courtesy, despite the fact that she was not entitled for the same. Complainant put her signatures on the documents showing her gross satisfaction. OP2 informed the complainant that as the stone so ordered is a natural piece and as such, delivery time depends upon its availability. Besides, the complainant was disclosed that time of 60 days of delivery shown in the papers is of dummy code. Complainant was even informed about 10% variation in the value as per availability. Later on OP2 informed the complainant telephonically that ring is ready in 50 cent. Complainant was ready to get it                                          billed, but when she visited the store of OP2, then she learnt that prices have increased and as such, for minting money, the complainant asked OP2 to bill the product and make cash refund. However, OP2 refused to do so and consulted its commercial department, who too corroborated the stand of OP2 to the effect that the complainant was not entitled for any cash refund. On it complainant and her husband flared up and they threatened the staff of OP2 to sue them in the Court for squeezing the money under the garb of false pleadings. There is no question of commission of offence of cheating or of adoption of unfair trade practice. OP2 had received the ordered product which is ready for delivery in its store, but to the dismay of Op1, the husband of the complainant sent an email to the Customer Complaint Cell of OP1. Complainant has concealed from this Forum the fact that she has placed two orders with OP2, but cancelled one of them and thereafter, purchased the ring under Akshya Tritya scheme by availing the gold coin offer. Complainant was informed by OP2 that order placed by her is in process and that is why she cannot cancel the same. However, for favouring the complainant, cancellation offer was allowed. Present complaint alleged to be filed for harassing and humiliating the Ops. In the documents showing advance payment, it was clearly mentioned that Ops will not be responsible for any gold rate variation or for delay, if delivery not got within 15 days from the date of                          receipt at boutique. In those instructions, it is mentioned that order will automatically stand cancelled, in case delivery not taken as referred above. Further, it is mentioned therein that amount paid will stand forfeited and Ops will have right to dispose of the product to any 3^rd party or the customer. Further, in those instructions, it has been mentioned that diamond and stone prices are subject to change till the delivery of the product or invoicing of the product. In those instructions, it is also mentioned that gross weight of the product is only for reference at the time of placing of the order. It is claimed that consumer dispute does not exist and as such, this Forum has no jurisdiction, particularly when the facts involved in the case are complicated one. Complaint alleged to be false and filed for abusing the process of law. There is no delay on the part of Ops and as such, complainant not entitled for any compensation. Rather, Ops acted promptly in earnest manner. Further, it is claimed that the complainant has no cause of action available to her. By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

4.                Counsel for the complaint tendered in evidence affidavit Ex.CA of Sandeep Kakkar(complainant herself) and Ex.CB of Sh.Bhupinder Singh and even tendered documents Ex.C1 to Ex.C13 and then closed the evidence.

5.                On the other hand, counsel for 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.                Written arguments as well as supplementary arguments submitted by the complainant and even written arguments submitted by Ops. Oral arguments of counsel for parties even heard. Records gone through minutely. 

7.                Perusal of copies of orders Ex.C2=Ex.R5, Ex.C3=Ex.R1 as well as Ex.R7 reveals that actually two orders were placed on 21.4.2014, but the 3^rd on 2.5.2014. Through Ex.C2=Ex.R5, complainant placed order for ring of gross weight of 3.300 gm with estimated value of Rs.78,582.75P with estimated date of delivery as 20.5.2014. Weight range was mentioned as 3.19-3.30 gm with budgetary range of Rs.1,10,000/- to Rs.1,24,000/- in Ex.C2. 2^nd order was in respect to ring of weight 6.000 gm with estimated order value of Rs.85,055.10P, but the date of delivery as 20.5.2014 and weight range was 5.90-6.00 gm and budgetary range was mentioned at Rs.1,15,000/- to Rs.1,25,000/-. The later order put forth through Ex.C3. However, the complainant has not disclosed in the complaint anywhere that she placed these two orders and as such, certainly submission advanced by counsel for Ops has force that the complainant has suppressed these facts.

8.                Perusal of Ex.R7 reveals that the complainant received ring of gross weight of 16.720 gm with stone weight 0.188 gm in carat and net weight 16.532 gm on payment of Rs.92,297/- in all on 2.5.2014. Mention of receipt of this ring of 16.720 gm with coin of 22 carat is not made  anywhere in the complaint, though, same made in the supplementary arguments only. Amount of Rs.1,04,000/- was paid through Ex.R8 dated 23.4.2014 and advance receipt in that respect produced on record as Ex.R9. So, it is obvious that delivery of the ring of 16,720 gm of worth of Rs.92,297/- was got by the complainant from Ops on 2.5.2014. As amount of Rs.1,04,000/- paid for this purpose on 23.4.2014 as revealed by contents of credit note Ex.R8 and advance receipt Ex.R9 and as such, certainly submission advanced by the counsel for the complainant has force that credit for amount of Rs.11,703/- was given through credit note Ex.C4 of 2.5.2014. However, in the complaint, it is mentioned as if this amount of Rs.11,703/- paid in cash. So, mention of cash payment of Rs.11,703/- on 2.5.2014 incorrectly made in the complaint. Though, position in that respect is cleared through supplementary arguments submitted by complainant alone. So, it is certainly a case, in which, the complainant has not disclosed the true and complete facts in the complaint, albeit those disclosed through written arguments and supplementary arguments only. Why these facts earlier not disclosed at the time of filing of the complaint qua that no due explanation offered and as such, due to suppression of material facts, certainly the complainant not entitled to equitable relief of  interest or of compensation amount and litigation expenses. It is so because whosoever seeks equity must do equity by bringing on record the complete facts.

9.                After going through orders Ex.C2 and Ex.C3 or Ex.R1 and Ex.R5, it is made out that as per clause 3 of these orders, diamond and store prices, making charges, taxes etc, are subject to change till the delivery of the product/invoicing of the product. Further, in these orders, it is mentioned that the gross weight of the product is only for reference at the time of placing of the order and these may vary with + / - tolerance at the time of delivery based on the complexity, design and nature of the product. In clause 5 of these orders, it is also mentioned that the order value is an estimated value inclusive of labour cost, making charges/wastage, stone cost if any plus taxes as applicable which may vary at the time of actual invoicing of the ordered product. So, in view of these clauses, submissions advanced by counsel for Ops has force that price or the weight mentioned in the orders was subject to change till the delivery of the product/invoicing of the product. Being so, complainant cannot claim that booking rate of 2.02 lac per carat alone should be charged from her. It is well settled that terms and conditions of the contract are binding on the parties and nothing can be added or subtracted thereto. In holding this view, we are fortified by law laid down in cases Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance Co.Ltd-I(2009)CPJ-6(S.C.). If that be the position, then in view of acknowledgment of the printed contents on the above referred orders Ex.C2 and Ex.C3 etc, now the complainant estopped from claiming that Ops not entitled to charge the prices in force at the time of delivery of the product or invoicing of the product. Complainant has insisted through Ex.C5 to Ex.C9 that Ops should accept the prices at the booking rate. However, charging of the booking rate is not provided by the printed terms and conditions on the orders Ex.C2 and Ex.C3 etc., and as such, this insistence by the complainant virtually was for avoiding   delivery of the product. If variations in weight had taken place, then such variations of one cent of the prepared product is as per terms and conditions of the orders Ex.C2 and Ex.C3 etc. So just on account of minor variations in weight, complainant could not have refused to accept delivery of the product. Through above referred correspondence, complainant even threatened to take action against Ops. Finally through Ex.C7 to Ex.C10, complainant decided not to have delivery of the prepared product and as such, virtually the complainant has resiled from the terms of the contract. However, interest for excess paid amount must not be ordered because that will be un-equitable and will give undue advantage to the   the complainant.

10.              From perusal of Ex.C2, Ex.C3, Ex.R1, Ex.R2, Ex.R5, EX.R8 and Ex.R9, it is made out that the complainant paid an advance amount of Rs.52,574/- by handing over the old ring to the Ops, but Rs.55,000/- on account of payment of eleven monthly installments and further, Rs.11,703/- on account of issue of credit note Ex.C4=Ex.R8. This credit note issued after delivery of 16.720 gm of gold ring to the complainant through retail invoice Ex.R7, because she paid Rs.1,04,000/- as per credit note Ex.R8 or advance receipt Ex.R9. So, virtually an amount of Rs.1,19,277/- had been paid by the complainant to Ops against which no product delivered to the complainant.

11.              Though, complainant claims that she is entitled to amount of Rs.5000/- as scheme money, but by keeping in view the scheme coupon Ex.R6, it is made out that credit for one scheme installment of Rs.5000/- will be given on payment of 11 installments. That coupon benefit is to be given as and when the purchase of the product from the Ops to be made. However, the complainant has sought the cancellation of two orders placed through Ex.C2 and Ex.C3 by filing this  complaint virtually and by writing letters Ex.C7 to Ex.C10 for not having delivery of  the products booked through these orders and as such, complainant not entitled to the scheme money of Rs.5000/-, particularly when she received the gold coins while making purchase through retail invoice Ex.R7. Amount of Rs.1,19,277/- handed over by the complainant to Ops in excess after purchase of product and cancellation of orders Ex.C2 and Ex.C3 and as such, the said amount being not paid gratuitously by the complainant to Ops liable to be refunded. Refund of this received amount of Rs.1,19,277/- as such is desired by keeping in view of Sections 65 to 67 of The Indian Evidence Act. However, due to suppression of material facts as discussed above, complainant not entitled to any amount of compensation and litigation expenses. Refund of this amount of Rs.1,19,277/- must be done by Ops to the complainant within 30 days from the date of receipt of copy of this order, failing which, Ops will be liable to pay interest @8% per annum after lapse of this period of 30 days till payment. It is required on equitable considerations.

12.              Therefore, as a sequel of the above discussion, present complaint allowed in terms that Ops will refund Rs.1,19,277/- to complainant within 30 days from the date of receipt of copy of this order, failing which they will pay interest @8% per annum after lapse of this period till payment. No order as to compensation or litigation expenses. Copies of order be supplied to parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                      (G.K.Dhir)

                       Member                                                President

Announced in Open Forum

Dated:27.02.2017.

Gurpreet Sharma.