BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  31^st December 2015       

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 1/2015  

Complainant/s:                       Smt.Pratibharani Hiremath W/o. C.K. Dhar Advoate, Age: Major, Occ: Lady Member in Dist. Consumer Forum, Raichur, R/o. H.No.1-11-122, Nijalingappa Colony, Raichur 584101.

(By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:         1)             Titan Industries Ltd., Vastu Prestige, Near Frame Adlabs, New Link Road, Andheri West, Mumbai, R/by its Managing Director.

2)             M/s. Elveety Enterprises (Tanishq) (Division of Elveety Industries Pvt. Ltd., No.1, S.K.Building, Koppikar Road, Hubli 580020. R/by its Manager.

(By Sri.A.G.Deshapande, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.10,000/- with interest @24% P.A from the date of purchase till realization, to pay nominal compensation of Rs.80,000/- for deficiency in service and unfair trade practice, harassment and mental agony, to pay Rs.20,000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant is working as lady member of Dist. Consumer Forum, Raichur and the respondent.1 involved in selling gold jewelers under the brand name Tanishq having various showrooms all around the country and respondent.2 is one such unit at Hubli. Respondent.1 has floated scheme called gold harvest scheme to the general public. In response to the advertisement the complainant joined the scheme and had paid Rs.2,000/- per month for 11 months and on payment of the same the 12^th month installment will be treated as paid by the respondent 1 themselves. After closure of the installments subscribers are entitled to collect products of respondent of worth Rs.24,000/-. Accordingly the complainant joined the scheme during 09.07.2011 by paying the installments by cash. Respondent.1 given account number to the complainant bearing no.ADH/1780/2011 and passbook no.715163 with enrolment date 09.07.2011 bearing customer no.4977 900092490805. Accordingly as per plan complainant paid all the 11 months installment through advanced post dated cheques as such complainant is entitled for the benefit under the scheme. On 09.10.2013 complainant approached respondent.2 and purchased stud ear ring 22 KT gross weightage 5.410 gms., stone weight 0.392 net weight 5.018 under the product description 511183 STQABA 18 worth Rs.21,480/-. After the transaction and issuance of retail invoice complainant shocked to know that no details of the value of the things, cost of the stone, making charges, wastage details etc., except mentioning the gold value, immediately complainant protested the same for concealing & playing tactics by the staff of the respondent. Despite serious objections staff did not explain properly with no other option complainant returned without details. Thereafter complainant approached other reputed jewelers at Raichur with regard to the product. During that time those jewelry shops told, at the best to the extent the value of the ornaments is only Rs.16,000/-. Thereafter complainant came to know that she was systematically duped by the respondents and are playing unfair trade practice in her scheme under reputed brand concept. Lateron within a span of few months the ornament looses its shining and complainant surprised to know ruby is not a natural one as it gradually looses its glitter and shining day by day. The complainant personally contacted respondent 2 and informed the matter but she did not get any satisfactory reply from the respondent.2. Hence, complainant constrained to issue legal notice to the respondent.2 on 03.02.2014 calling upon to refund gold ear ring amount and compensation for mental agony. Respondent.2 on 14.03.2014 sent reply admitting the transaction denying the allegations by explaining break up details of the product saying that the complainant has been informed and fully satisfied with regard to the price then only the complainant purchased by signing on the invoice. Thereafter inevitably the complainant went to Hyderabad and approached approved valuer to know about the quality and cost of the product. Thereafter the complainant as per the report of the government approved valuer she came to know that the product is not worth of Rs.21,480/- as per invoice and is only worth Rs.16,422/- & the ruby is thermal enhanced treated. Since the complainant has purchased the ear ring studs from the respondent trusting the respondents are world famous Tanishq brand, but her faith has been jeopardized as such the respondents have committed deficiency in service and unfair trade practice as defined under CP Act as such the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and contested the matter  by admitting detailed written version by the respondent 1 while the respondent.2 adopts the written version of the respondent.1.

4.     At the outset the respondent denied the claim in toto stating and contending very complaint is frivolous and filed with an intention to make unjust enrichment at the goodwill, cost in the name of the respondent company. Further the respondent disputes the trade name and wrong mentioning of the trade name by averring correct  trade name “Titan Co. Ltd”. Further the respondent denied and disputes the nature of the profession of the complainant by averring the respondent company is one of the reputed and popularized company and carrying business all over corners of the world. Respondent also denied the scheme as asserted by the complainant by mentioning actual scheme. While the respondent admits the transaction in between complainant and respondent and involvement of the complainant with the scheme and contributions, allotment of account number, payment of installments and also purchase of the ornaments as per the scheme. While the respondent also narrated in detail the terms and conditions of the scheme and also classification of the items, amount of the items, price of the items and details of deductions and rebate and discount offered as per the invoice by denying the false allegations made in the complaint that the respondents have concealed the details. Further the respondent reveals while purchasing of the product the complainant was made known and informed all details she enquired and after satisfaction and after having taken consideration of deductions and discounts signed the invoice and left and thereafter on after thought after lapse of several months  on the misconception of information she gathered from someone else got issued the legal notice for that also the respondents have suitably replied and also sent details of the break up details of the ornaments though she was made known at the time of purchase. Since the invoice itself containing all details and break information there was no necessity of issuing separate break information if the complainant would have asked at the counter the same would have been issued, but she approached later on as a after thought to make false complaint against the respondent. Further the respondent also denied and disputes the opinions gathered by the complainant from some one else and also from the government approved valuer of Hyderabad as relied by the complainant by fairly admitting the value of the gold is even below Rs.16,000/- of worth. Among such other admissions and denials the respondent fairly denied all the allegations asserting the product purchased by the complainant is worth to an extent as agreed upon and denied the deficiency in service and also allegations of unfair trade practice as alleged and prays for dismissal of the complaint with cost.

5.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 Both have admits sworn to evidence affidavit. Complainant apart from examining herself also lead evidence of one more witness. While the respondent apart from evidence, tendered interrogatories  to the PW2 & complainant replies. Heard. Apart from argument complainant also relied on citation. Perused the records.

Finding on points is as under.

1.  Negatively
2.  Accordingly  
3.  As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with interrogatories  and replies and documents of both the parties it is evident that there is no dispute with regard to the fact,  the complainant had enrolled herself as member to the scheme and paid installments and purchased the articles in compliance of the becoming member and payment of the installments.

6.     Now the question to be determined is, whether the respondents have delivered the articles worth lesser than the agreed value of the articles and also delivered the articles other than the assured and has caused deficiency in service amounting to unfair trade practice, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     The complainant in support of her case mainly relied on Ex.C6 jem report issued by Satish Shah Jem Testing Lab, Govt. approved valuer, Hyderabad and claims refund of Rs.10,000/- with interest and for compensation and cost of the proceedings contending that she has paid Rs.22,000/- on 11 installments & she is entitled for Rs.24,000/- worth articles as per assurance but, respondents have delivered the gold worth only Rs.16,000/- against of Rs.21,480/- as per the invoice Ex.C1 and the ruby stone is of not original & as such she was duped by the respondents. The respondents in reply to the contention of the complainant rebutted the report Ex.C6 contending that as per the report Ex.C6 itself the ruby delivered to the complainant is natural ruby & is thermal enhanced and there was no any assurance was given to the complainant at the time delivery or at the time of entering into the membership of the scheme what will be the nature of the items will be delivered but, it was agreed to deliver the articles worth of Rs.21,480/-. Accordingly the respondents have delivered the articles as per Ex.C1 & Ex.C1 is having all details with regard to the quality, quantity, weight and nature of the stone and price of the articles as such contended there does not arise committing deficiency in service as contended by the complainant. Further the respondent strongly opposed the allegation of the complainant stressing on itemwise details in Ex.C1 contending dispite of terms and conditions the complainant has been given additional discounts apart from it in total bill also rebate and discount is given. So also the respondent contended that at the time of taking delivery of the articles the complainant has been in detail informed with regard to the details of the articles only after satisfaction the complainant taken delivery of the item by endorsing the invoice subsequently after thought only made all false allegations to have unlawful gains. Further the respondent contended that the complainant has been supplied with break up details after she required along with the reply notice. Further contended that the details of break up furnished to the complainant is tallied with the details furnished in the Ex.C1 invoice. The respondent also strongly opposed the allegation made by the complainant by taking attention of the Forum to the interrogatories and replies. The interrogatories  question - 27 what is the usual practice in the industry to decide making charges of the any ornaments. For that the PW2 answered, I am not aware. Even for the question.22 - I say, a thermal enhancement to a ruby is in regular practice in the industry, for that PW2 replies I am not aware of such practice. For the question.28 - I say, making charges of any ornaments is decided and fixed by the manufacturer, the PW2 replies I am not aware.

9.     Among the questionnaire tendered respondent highlights the above questionnaire and reply to the above question by PW2 and submits when the PW2 being a government approved valuer and expert in jem report has not properly replied to the above question and hide the real facts by replying, I am not aware. Apart from submission made by the respondent even this Forum also understood when the PW2 being a government approved valuer he should have replied specifically instead he replies ambiguously I am not aware. The answer is intentionally given with an intention to avoid the circumstances and with intention not to disclose the truth. Under those circumstances the say of the complainant that the PW2 has told the value of the ornaments is only worth Rs.16,000/- cannot be accepted. So also the contention of the complainant that the respondent has charged high towards the making charges also cannot be acceptable for the reason PW2 is uncertain with regard to generally charging the making charges. That apart there is no agreement in between the complainant and respondent with regard to the charges to be charged towards making charges and other things and charges as disputed by the complainant. Further case of the complainant is that the PW2 has stated the quality of the ornaments issued by the respondent is “not assured one”. But complainant did not produced any evidence to show what was the assured quality of the ornaments. Another grievance of the complainant is that the ruby is thermal enhanced, so she is not accepting the same. For this the respondent argued as per Ex.C6 relied by the complainant herself ruby is natural ruby and there is no dispute with regard to genuinity and contended that on which circumstances thermal enhanced product will be given. In both written version as well as in the evidence RW-1 the respondent made clarification with regard to classification of the ruby as per classification there are 2 categories in ruby

1. A natural ruby which is formed in the earth, but too light or too dark in colour. These stones are treated to bring out a better colour, which is an acceptable form of treatment.
2. The other, is a synthetic stone (man made ruby) which is made in a laboratory & submits the ruby purchased by the complainant along with ornaments ear rings is of 1^st category. Infact if it is synthetic  ruby it would have been commented in Ex.C6 in the jem report but in the said report it is mentioned natural ruby thermal enhanced. Contention of the respondent is not rebutted.

So it is understood for commercial purpose for shining purpose the natural ruby will be treated through thermal enhance.

10.       By all these facts and figures discussed, gathered and sum up the same it is evident that there was no assurance or agreed maturity what type of articles to be delivered, but by the evidence gathered under the scheme the respondent shall deliver the articles of worth as per the invoice the same was not disputed at the time of delivery. Even the split up details of the articles furnished by both PW 2 and RW 1 it is evident there is no much difference. In the absence of assurance in between the parties the difference in the split up report of both the parties we cannot consider the respondents have committed any deficiency in service or unfair trade practice. The complainant except alleging the articles delivered is of worth of only Rs.16,000/- she has not produced any document to establish her contention and the articles is worth of Rs.16,000/- only and she is entitled to Rs.10,000/- as claimed by her.

11.       However by looking into the complaint averments call given for compliance by the complainant through legal notice Ex.C2 it is evident that the complainant demand for refund of the amount. On seeing Ex.C3 reply notice of the respondent since there was no any deficiency in service or unfair trade practice on the concluded transaction the respondent is not ready to refund the amount. However inspite of all these as observed by this Forum in total by approach of the complainant with litigation this Forum gazed the complainant is not interested in possessing the ornaments as per Ex.C1. Though the complainant has not made out her case of deficiency in service and unfair trade practice as there is a clause on the rear side of the Ex.C1 at the time of delivery/ purchase of the articles the customer has an option for exchange or for refund of the value of the articles. Under those circumstances even though it is not proper for order for refund of the amount by taking note of no endorsement of signature of the customer on Ex.C1 with reason in order to put an end for future litigation if it is ordered to refund the amount it will not cause injustice or burden to the parties without ordering for compensation and cost of the proceedings as the complainant has failed to establish her case. Hence, this Forum inclined to order for refund of the amount paid by the complainant on installment by charging SB account interest @4% on the installment amount till the date of invoice and thereafter @ 9% on the said refundable amount will suffice the purpose.

12.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 negatively and accordingly.

13.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        The complaint is allowed in part. No order as to costs and parties to bear their own cost. If the complainant desires to retain the ornaments which is in court deposit can receive the articles as it is by filing memo she is not claiming refund. Otherwise if she willing to receive the refund amount the respondent shall refund the amount of Rs.26,852/- calculated as per the observation made within 30 days from the date of receipt of copy of this order and to receive back the articles which is in court deposit.  

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of December 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR