Tamil Nadu

South Chennai

CC/184/2021

Nirmala Mushyam Vangara - Complainant(s)

Versus

Vummidi Bangaru Chetty & Sons, Rep by Shailesh - Opp.Party(s)

Party in Person

27 Apr 2023

ORDER

                                                   Date of Complaint Filed : 29.11.2018

                                                   Date of Reservation      : 11.04.2023

                                                   Date of Order               : 28.04.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No.184 /2021

FRIDAY, THE 28^th DAY OF APRIL 2023

Nirmala Mushyam Vangara,

W/o. Surya Vangara,

Aged about 46 years, occupation: Advocate,

R/o. Green Lake Apartment, A-402,

Urapakkam, Chennai.                                                                                                                          ... Complainant                

..Vs..

 

Vummidi Bangaru Chetty & Sons,

Represented by Shailesh,

Address, No.769, Spencer Plaza,

Anna Salai,

Chennai – 600 002.                                                                                                                           ...  Opposite Party

 

******

Counsel for the Complainant          : Party in Person

Counsel for the Opposite Party       : M/s. Priyanka

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to  pay the total claim amounting to Rs.1,86,700.27 paise along with the interest from the date of purchase @ 18% till the date of realization of discrepancy and costs of complaint.

I.     The averments of Complaint in brief are as follows:-

1.   The Complainant submitted that she had visited the Opposite Party on 01.08.2015. After seeing the jewellery, she had selected a necklace and she wanted some changes in it,the Opposite Party said that needed changes could be done.The Necklace only pearls and Rubies in the chain portion but it had Rubies, Pearls, uncut Diamond and Emerald in the Pendant portion. So, she wanted Emeralds also to be added in the chain portion by replacing four Rubies, for which the Opposite Party suggested that Emeralds would be difficult to cut in that particular design and would be very expensive too. Further suggested that instead of Emeralds, green onyx beads can be used by replacing four Rubies from the Original design. Rubies are precious gems and would be expensive also and on the other hand onyx are semi –precious gems and are not all expensive and it would also reduce the price. He further said that this would also reduce the price by around Rs.25,000/- from the estimated price.

2.     The Opposite Party then gave the estimated price of the necklace as Rs.3,67,000/- including VAT approximately. An amount of Rs.53,400/- was paid in exchange of Old Gold’s value as an advance payment towards the purchase of the necklace dated 01^st August 2015.The Opposite Party had said that within 2 or 3 weeks it will be ready with the alterations but the Opposite Party took 6 to 7 months to do the alterations. The Complainant was fed up of calling them to follow-up for delivery of necklace. Finally, on 19^th February 2016 it was ready. Then the Complainant visited the Opposite Party to collect necklace in the evening. While finalizing the price, the Opposite Party was cribbing badly because of the Gold rate had increased by Rs.371/- from the date of advance payment day from Rs.2,356/- per gram to Rs.2,727/- per gram at the time of delivery day because the Gold rate of advance payment date only will be considered and not the increased present rate. This is the standard practice of the jewelers. But in the final bill the Gold rate is Rs.2,727/- per gram only is charged. The opposite party has charged Rs.26,652.26 excess charges.

3.     The Opposite Party was in hurry to go somewhere also, so he instructed his staff to do the billing and left. The Staff had taken a lot of time in preparing the detailed bill they were working eve after their regular closing them, the Complainant told them at that time itself that she will not be able to check the bill then and there itself but she will check it at home and shall get back to them if there were any discrepancies in it.The Complainant paid the remaining balance amount as per their calculation without checking the bill since there was not time to do that. So she paid the balance amount of Rs.3,09,000/- i.e., Rs.49,900/- in the form of old Gold. Here also the Complainant’s 22 carat old Gold 20.590 grams was charge @ 2423 per gram but were as the Opposite Party has charged Rs.2727/- for the necklace, her also the Opposite Party has charged Rs.304 excess price which will be Rs.56,14.93 were as the Opposite Party has charged the amount of Rs.49,900/- only and charged Rs.6,248.93 less if you buy/sell on the same day, that day’s gold rate only should be applied and the remaining amount i.e., Rs.2,60,000/- in the form of a cheque both the payments were made on 19.02.2016 itself blindly trusting them. The estimated amount which was quoted was Rs.3,67,000/- approximately on 01.08.2015 without the replacement of Rubies and if the alteration is done automatically the Rubies rate will reduced which is around Rs.25,000/- as told by the Opposite Party. Now the replacement was done and Rubies were replaced by green onyx but the final amount is being shown as Rs.3,63,000/- whereas the estimated approximate amount was Rs.3,67,000/-. That is the difference between the estimated amount and the actual amount is only Rs.3,700/- hence the amount of Rubies worth around is Rs.25,000/- was not reduced at all which was realized later on when the Complainant was checking the bill at home. After realizing the discrepancy, the Complainant called the Opposite Party and wanted to settle the bill properly but the Opposite Party was never available to meet all kinds of excused were being given and was not ready to meet at all because he never wanted to solve the issue.

4.     After several attempts failed to meet the Opposite Party, the Complainant was constrained to go and serve the legal notice. Meanwhile, the chain portion of the necklace broke which the Complainant wanted to get repaired. So, the Complainant went to their shop in the month of October 2016 for doing two things i.e., get the necklace repaired and to serve the legal notice. When the Complainant visited the shop, his elder brother Mr.Ashwin Raj Vummidi was present. The Complainant explained everything clearly to him. He said that he was a gentleman and he said that whatever had happened was very wrong and he was sorry for that and said since his younger brother Mr.Shailesh is the person involved in it, let him only deal with it and let him learn a lesson, which he definitely deserves one. The opposite Party is demanding proof for the further discount of Rs.25,000/- in his letter dated 24.11.2016. The Complainant was not asking any discount of RS.25,000/- it is the price of 4 Rubies which were replaced by green onyx. The estimate slip which is written in his own hand writing which states that Rs.3,67,000/- approximately including VAT is the price of the existing necklace and orally he said that “if the Rubies are replaced”, further Rs.25,000/- will be reduced i.e., cost of Rubies. As per the bill in the description it has two section of the necklace i.e., the necklace portion and the pendant portion. First one is the details o the necklace portion in which it is clearly mentioned 3 details (i) Gold (ii) Pearls and (iii) Rubies were it shows next to Rubies 110.150 figure which is the carat weigh of Rubies and then @ 600, which is the rate of Rubies per carat. So weight 110.150 carat multiply by @ 600=66090.00. Original necklace had 10 ruby beads after alteration there are only 6 Rubies and 4 green onyx beads. The above details are i.e., 110.150 carat is for 10 Rubies and for 4 it is 44.06. At the rate of 600 per carat, this is equal to Rs.26,436/-. This is exactly what the Opposite party said, that is, if 4 Rubies are replaced around Rs.25,000/- will be reduced and this has not been done nor the details of green onyx are shown which will be a negligible amount, since onyx is a semi-precious stone and costs very less which will be few hundreds only.

5.     The bill shows only pearls and Rubies, the alteration details are not carried out this is the discrepancy. This itself the proof. The Opposite Party in his letter further states that in the interest of retaining a customer, he offered a further adhoc discount of Rs.7,500/- so as to please the customer though he was under no compulsion to do so, is it not weird that the Opposite Party is ready to give a discount of Rs.7,500/- in a deal after 9 months of the transaction is done? The Opposite Party did this only to save Rs.25,000/- actually Rs.26,436/- by giving Rs.7500/- discount offer he thought that by losing a small amount, he can save a bigger amount.         This action of the Opposite Party itself proves his guilt. His own cheap tactics are tarnishing their own goodwill. Apart from himself being wrong, he is trying to threaten me with defamation. When a consumer discrepancy is filed under section 35 of the Consumer Protection Act,2019 before a Consumer Redressal Commission, it does not attract defamation under 499 of IPC. Hence the complaint.

II. Written Version filed by the Opposite Party in brief is as follows:-

6.     The Opposite Party submitted that the present complaint is a sheer abuse of process of court and the same has been filed with all false, frivolous and vexatious allegations and as such deserves to be dismissed at the limini. Certain essential facts were briefed for fuller appreciation of the case on hand. The Complainant visited the showroom of the Opposite Party on 01.08.2015 for purchasing a necklace, the Complainant has selected a piece of necklace and wanted some changes in the design. As per the requirements of the Complainant, this Opposite Party also suggested a few changes that would suit the very design of the necklace and as well as to meet the expectations of the Complainant. The Complainant wanted Emerald beads to be replaced instead of Rubies, for which this Opposite Party suggested to replace it with Green onyx beads which is less expensive than Emerald, Since the Emerald stone cut for the particular design would be difficult to replace in the original design of the said Necklace.

7.     After several discussions and suggestions, the Complainant approved the design along with the above specified changes, the Complainant herein has suppressed the fact that originally value of necklace purchased by Complainant was Rs.4,40,000/- and only after the said changes and replacement of beads from the original design the price for the said necklace was negotiated to an agreed amount of Rs.3,63,000/-. After deducting replacement of four Rubies with Green onyx bead price of said necklace including VAT was calculated at Rs.3,63,000/- and not Rs.3,67,000/- which is a vast difference when compared to the original cost of the said Necklace.

8.     The Complainant made an initial payment towards the advance amount for the said necklace at Rs.53,400/- by exchanging old gold, which is on the same day of placing the above said order with the Opposite Party. Thereafter, the balance consideration for the said Jewellery was made by different modes one by making payment of Rs.49,900/- by cash and further the Complainant issued a cheque in favour of the Opposite Party for a sum of Rs.2,60,000/-. Thus, in all the total amount of Rs.3,63,000/- has been paid by Complainant as per the Bill numbered dated 19.02.2016.It is totally denied that Opposite Party took 6 to 7months to do alternations. As a matter of fact necklace was ready after making due alternations and the Complainant personally visited the shop as above said and made the balance payment and received the necklace without any Complainants. The Complainant visited the Opposite Party after so many months of purchasing the said jewellery with her Husband to clarify the details, then once again everything was clarified to the satisfaction of the Complainant. Moreover, the allegation is that the Gold rate of delivery date was only taken not the advance payment date is vexatious. After agreeing to the estimated payment bill the Complainant placed the order and made the advance payment with the Opposite Party paying sum of Rs.53,400/- subsequently made the balance consideration also, which cannot be denied by the Complainant at this point in time.        

9.     The allegations made that “She will not be able to check the bill then and there itself but she will check it at home and shall get back to them if there were any discrepancies in it” is totally and frivolous. Since Complainant personally visited the shop and collected the said necklace after satisfying herself with the change made. Furthermore, all billing was done in front of Complainant. The bill was acknowledged by Complainant by the signing the Invoice for sum of Rs.3,63,000/-. The Complainant herein had only filed this present complaint to ruin reputation of this Opposite Party with intention to grab more money by making false, baseless allegations. Furthermore, it is unbelievable and imaginary as to how Complainant herein had paid balance amount of Rs.3,09,000/- without checking the bill and made payments by cash after exchanging the Old Gold and also issued a cheque for this purpose. Moreover, the originally cost of necklace is Rs.4,40,000/- total of which estimation of Rs.3,67,000/- agreed by the Complainant after negotiations only. All of a sudden Complainant came up with imaginary figure of Rs.25,000/- as discount from the agreed value, which was nowhere promised or mentioned by the Opposite Party at any point of time. Knowing fully well that that the evaluation is inclusive of deduction of four Rubies price and VAT(Value added Tax) approximately. Only after such circumstances the Final bill was prepared in front of Complainant and same was paid acknowledged by Complainant 19.02.2016.     

10.    In fact, compared to original cost, Opposite party had given enormous discount in the Final bill paid by the Complainant and that too only with an intent to retain the customer relationship. Detailed explanation was given to Complainant regarding Final bill, as to how the price of Rs.3,63,000/- was arrived and it’s only amount agreed even at the time of placing the order. In spite of that, the Complainant persistently agonized for a further discount of Rs.25,000/- from and out of the total Bill, after having paid the entire consideration with the Opposite Party cannot agitate the same before this Hon’ble Commission and such an allegation against this Opposite Party without any documentary proof thereof is invalid in the eye of Law. If assuming for a moment that Opposite Party had promised the Complainant for further discount of Rs.25,000/- from and out of the Original agreed bill, then the Complainant ought to have denied making payment at the time of final bill, but only chosen to remain silent, which clearly show that only to play fraud and harass this Opposite Party concocted case has been laid. It is totally fabricated and trumped up by Complainant only for the purpose of harassing this Opposite Party. Nearly after period of six months in the month of October 2016 Complainant herein visited the Opposite Party’s shop for purpose of repairing some jewel and on the pretext of repair, Complainant dropped off a letter alleging that as a legal notice. Moreover, an assertion that Opposite Party’s elder brother apologized to Complainant and alleged that this Opposite Party must learn a lesson is nothing but fictional, illusionary and made up Complainant with intention to frustrate and ruse money from this Opposite Party. The estimation slip includes deduction of four rubies price and VAT approximately. Since estimation value is not final value. And an additional discount of Rs.3,700/- was given at the time of finalizing bill. Furthermore, all of a sudden Complainant has found discrepancy in the said final bill, after accepting and paying final bill. Besides, Opposite party submits that with interest of retaining the customer alone further discount of Rs.7,500/- was arranged, though there was no compulsion to do so. They are in jewellery trade and business for four generations now and has good reputation in and around part of the Chennai City. The Complainant has come to Hon’ble Commission without clean hands and filed the said complaint to tarnish the Goodwill and reputation of this Opposite Party. The present complaint is highly defamatory and they reserve their right to sue the Complainant for maligning their shop’s name before this Hon’ble Commission and also reserve their right to sue the Complainant, both for civil and criminal defamation and damages before the appropriate forum. Detailed claim mentioned by the Complainant is totally incorrect. The entire calculations given in Complaint is erroneous and false since the prices of Rubies, Emeralds and green onyx beads are wrongly mentioned. Further interest calculated by the Complainant is ridiculous. It is also pertinent to mention that the originally a complaint was filed by the Complainant before this Hon’ble Commission only in the year 2018, thereafter the Complainant did not come forward to rectify the defects as specified by the registry, an order came to be passed on 18.01.2018, dismissed for default. Aggrieved by the said order complainant preferred an appeal before the Hon’ble State Commission for restoring the present complaint. The Hon’ble Commission was pleased to pass an order in the said Appeal in F.A No.46 of 2019 dated 26.10.2021. Only under the said circumstances this present complaint has been laid which is a sheer abuse of process of law and this goes to show that the present complaint is only a cooked-up story to harass and to grab money from this Opposite Party. Hence prayed to dismiss the complaint.      

III.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as Ex.A-1 to Ex.A-5. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side of Opposite Party no document was marked.

 

IV.  Points for Consideration:-

 

1. Whether there is unfair trade practice and deficiency in service on the part of the Opposite Party?

 

2.  Whether the Complainant is entitled for the reliefs sought for?

 

3.  To what other relief, the Complainant is entitled to?

 

Point No.1:

11.    It is an undisputed fact that the Complainant had visited the Opposite Party’s jewellery shop on 01.08.2015 and had purchased a necklace and the needed changes of beads in the chain portion of the said necklace was agreed to be carried out by the Opposite Party, which changes pertains to replacement of 4 Rubies and to insert Green Onyx beads in the chain portion.

12.    The disputed facts of the Complainant are that the Opposite Party in their estimation slip the amount quoted was Rs.3,67,000/- approximately on 01.08.2015 without the replacement of Rubies and if the alteration is done automatically the Rubies rate would be reduced which comes around Rs.25,000/- as told by the Opposite Party. The replacement was done and Rubies were replaced by green onyx but the final amount has been shown as Rs.3,63,000/- whereas the estimated approximate amount was Rs.3,67,000/-, thus the difference between the estimated amount and the actual amount was only Rs.3,700/- and the reduction for replacement of Rubies cost about Rs.25,000/- was not shown or given, which was realized later on when the Complainant was checking the bill at home. After realizing the discrepancy, the Complainant called the Opposite Party and wanted to settle the issue on the bill properly but the Opposite Party was never available to meet, all kinds of excuses were being given and was not ready to meet at all because he never wanted to solve the issue. After several attempts failed to meet the Opposite Party, the Complainant was constrained to go and serve the legal notice. Meanwhile, the chain portion of the necklace broke which the Complainant wanted to get repaired. So, the Complainant went to their shop in the month of October 2016 for doing two things i.e., get the necklace repaired and to serve the legal notice. The opposite Party had demanded proof for the further discount of Rs.25,000/- in his letter dated 24.11.2016, when she was not asking any discount of Rs.25,000/- it was the price of 4 Rubies which were replaced by green onyx. The estimate slip which was written in his own hand writing which states that Rs.3,67,000/- approximately including VAT and orally it was informed further Rs.25,000/- will be reduced on replacement of Rubies, i.e., cost of Rubies. Further submitted that as per the bill in the description it has two section of the necklace i.e., the necklace portion and the pendant portion. First one was the details of the necklace portion clearly containing 3 details (i)Gold (ii) Pearls and (iii) Rubies, Rubies weighed 110.150 at the rate Rs.600. Original necklace had 10 ruby beads after alteration there are only 6 Rubies and 4 green onyx beads, the weight of 110.150 carat pertains for 10 Rubies as valued before replacement and the value of 4 Rubies weighing 44.06 has not been reduced in the final bill, at the rate of 600 per carat, the value of 4 Rubies weighing 44.06 comes around Rs.26,436/-. It would clear that neither the reduction for 4 Ruby beads has not been done nor the details of green onyx were shown which would be a negligible amount, since onyx is a semi-precious stone and costs very less which would be few hundreds only. The bill shows only pearls and Rubies, the alteration details were not carried out which clearly proves the discrepancy. The Opposite Party in his letter further stated that in the interest of retaining a customer, he had offered a further adhoc discount of Rs.7,500/- so as to please the customer though he was under no compulsion to do so, if it was not weird that the Opposite Party was ready to give a discount of Rs.7,500/- in a transaction made after 9 months, was nothing but to save Rs.25,000/-, thinking of losing a small amount, he can save a bigger amount. Making her legitimate claim from the Opposite Party does not amount to defaming their reputation. Further submitted that the Opposite Party had assured the alterations in the necklace could be done within 2 or 3 weeks and would be ready but the Opposite Party took 6 to 7 months to do the alterations, of which she was fed up calling them to follow-up for delivery of necklace. Finally, only 19.02.2016 it was ready. Then the Complainant visited the Opposite Party to collect necklace in the evening, and while finalizing the price, the Opposite Party was cribbing badly because of the Gold rate had increased by Rs.371/- from the date of advance payment day from Rs.2,356/- per gram to Rs.2,727/- per gram at the time of delivery day because the Gold rate of advance payment date only would be considered and not the increased present rate. This is the standard practice of the jewelers. But in the final bill the Gold rate was shown as Rs.2,727/- per gram and charged the same, in the said context the opposite party had charged Rs.26,652.26p in excess. On 19.02.2016 the opposite Party in hurry to go somewhere else, so he instructed his staff to do the billing and left, the Staff had taken a lot of time in preparing the detailed bill they were working even after their regular closing them, hence she told them at that time itself that she would not be able to check the bill then and there itself but she would check it at home and shall get back to them if there were any discrepancies in it and had paid the remaining balance amount as per their calculation without checking the bill since there was no time to do that. The balance amount of Rs.3,09,000/- was paid by way of cheque for a sum of Rs.2,60,000/- and a sum of Rs.49,900/- in the form of old Gold. The Opposite Party had charged the necklace at the prevailing Gold rate on 19.02.2016 at Rs.2727/- whereas he had charged for her 22 carat old Gold weighing 20.590 grams @ 2423 per gram instead of Rs.2727/-, if would have valued at Rs.2727/- per gram the value of her old Gold would be Rs.56,14.93p but the Opposite Party had charged only Rs.49,900/-, by not applying the value for her old gold on the prevailing gold rate by the Opposite Party she had suffered a loss of Rs.6,248.93p. Hence it would be clear that the Opposite Party had committed deficiency of service, for which she has to be compensated and she is also entitled for interest on the amounts to be paid on the value of 4 Ruby beads that has been replaced as well as on the above said excess amounts charged by the Opposite Party.     13.     The contentions of the Opposite Party are that the Complainant wanted Emerald beads to be replaced instead of Rubies, for which the Opposite Party had suggested to replace it with Green onyx beads which would be less expensive than Emerald, Since the Emerald stone cut for the particular design would be difficult to replace in the original design of the said Necklace. After several discussions and suggestions, the Complainant approved the design along with the above specified changes, the Complainant herein had suppressed the fact that originally value of necklace purchased by Complainant was Rs.4,40,000/- and only after the said changes and replacement of beads from the original design the price for the said necklace was negotiated to an agreed amount of Rs.3,63,000/-, which was after deducting replacement of four Rubies with Green onyx bead price of said necklace including VAT was calculated at Rs.3,63,000/- and not Rs.3,67,000/- which was a vast difference when compared to the original cost of the said Necklace. On 01.08.2015 the Complainant by exchanging her Old Gold valuing at Rs.53,400/- had paid the said sum as an initial payment for the said necklace. Thereafter, the balance consideration for the said Jewellery was made by different modes one by making payment of Rs.49,900/- by cash and further the Complainant issued a cheque in favour of the Opposite Party for a sum of Rs.2,60,000/-. Hence, a total amount of Rs.3,63,000/- has been paid by Complainant as per the Bill dated 19.02.2016. It was not that they took 6 to 7 months to do alternations, as a matter of fact, necklace was ready after making due alternations and the Complainant personally visited the shop as above said and made the balance payment and received the necklace without any Complaints. The Complainant visited the Opposite Party after so many months of purchasing the said jewellery with her Husband to clarify the details, then once again everything was clarified to the satisfaction of the Complainant. The allegation was that the Gold rate of delivery date was only taken not the advance payment date is vexatious. After agreeing to the estimated payment bill the Complainant placed the order and made the advance payment with the Opposite Party paying sum of Rs.53,400/- subsequently made the balance consideration also, which cannot be denied by the Complainant at this point in time. As the Complainant personally visited the shop and collected the said necklace after satisfying herself with the change made, all billing was done in front of Complainant and the bill was acknowledged by Complainant by the signing the Invoice for sum of Rs.3,63,000/-, hence allegations that she would not be able to check the bill then and there itself but she will check it at home and shall get back to them if any discrepancies found were totally false and frivolous. The present complaint has been filed to ruin their reputation with intention to grab more money by making false, baseless allegations. As it would be unbelievable and imaginary as to how Complainant had paid balance amount of Rs.3,09,000/- without checking the bill and made payments by cash after exchanging the Old Gold and also issued a cheque for this purpose. When the Original cost of necklace is Rs.4,40,000/- total of which estimation of Rs.3,67,000/- agreed by the Complainant after negotiations only. All of a sudden Complainant came up with imaginary figure of Rs.25,000/- as discount from the agreed value, which was nowhere promised or mentioned by the Opposite Party at any point of time. The Complainant well know that the evaluation is inclusive of deduction of four Rubies price and VAT(Value added Tax) approximately, only after such circumstances the Final bill was prepared in front of Complainant and same was acknowledged and paid by Complainant on 19.02.2016, compared to original cost of Rs.4,40,000/-, they had given enormous discount in the Final bill paid by the Complainant and that too only with an intent to retain the customer relationship. Detailed explanation was given to Complainant regarding Final bill, as to how the price of Rs.3,63,000/- was arrived and it’s only amount agreed even at the time of placing the order. In spite of that, the Complainant persistently agonized for a further discount of Rs.25,000/- from and out of the total Bill, after having paid the entire consideration with the Opposite Party cannot agitate the same before this Hon’ble Commission and such an allegation against them without any documentary proof thereof is invalid in the eye of Law. If assuming for a moment that Opposite Party had promised the Complainant for further discount of Rs.25,000/- from and out of the Original agreed bill, then the Complainant ought to have denied making payment at the time of final bill, but only chosen to remain silent, which clearly show that only to play fraud and harass them concocted case has been laid. Nearly after period of six months in the month of October 2016 Complainant herein visited the Opposite Party’s shop for purpose of repairing some jewel and on the pretext of repair, Complainant dropped off a letter alleging that as a legal notice. Moreover, an assertion that Opposite Party’s elder brother apologized to Complainant and alleged that this Opposite Party must learn a lesson is nothing but fictional, illusionary and made by the Complainant with intention to frustrate and ruse money from them. The estimation slip includes deduction of four rubies price and VAT approximately, as the estimation value was not final value. And an additional discount of Rs.3,700/- was given at the time of finalizing bill. Furthermore, all of a sudden Complainant has found discrepancy in the said final bill, after accepting and paying final bill. Further contended that with interest of retaining the customer alone further discount of Rs.7,500/- was arranged, though there was no compulsion to do so. The claim made and entire calculations given in the Complaint were erroneous and false as the prices of Rubies, Emeralds and green onyx beads were wrongly mentioned. Further interest calculated by the Complainant was ridiculous. Further contended that the originally a complaint was filed by the Complainant before this Hon’ble Commission only in the year 2018, as the Complainant did not come forward to rectify the defects as specified by the registry, complaint was dismissed for default on 18.01.2018. Aggrieved by the said order complainant preferred an appeal before the Hon’ble State Commission for restoring the present complaint. The Hon’ble Commission was pleased to pass an order in the said Appeal in F.A No.46 of 2019 dated 26.10.2021. Only under the said circumstances the present complaint has been laid which is a sheer abuse of process of law which goes to show that the present complaint is only a cooked-up story to harass and to grab money from them.

14.    On discussions made and on perusal of records, it is clear from Ex.A-1 Undated Estimation Slip issued by the Opposite Party, for a sum of Rs.3,67,000/- towards purchase of necklace with Tag Nos. 23-59021 and 23-49533 wherein it is also mentioned to replace 4 Ruby beads with Onyx beads. From Ex.A-2 Cash Bill dated 19.02.2016 raised by the opposite Party in the name of the Complainant, the said Tag numbers were mentioned in Ex.A-1 were reflected and the price of Pearls and Rubies mentioned under Tag No.59021-23 and there was no mentioning of 4 Onyx beads agreed to be replaced in the place of 4 Ruby beads, in such circumstance it would be clear that Ex.A-2 was billed charging for 10 Ruby beads and not for 6 Ruby beads and the claim of the Complainant for reduction of Rs.26,426/- towards replacement of 4 Ruby beads valued as per Ex.A-2, has been proved.

15.    Though the Opposite Party had contended that the amount of Rs.3,67,000/- mentioned in Ex.A-1, estimation slip, was only after adjusting the value of replacement of 4 Ruby beads as the original cost of the subject necklace was Rs.4,40,000/-, the Opposite Party had failed to produce any authenticated evidence to substantiate their contentions, if at all the contention of the Opposite Party with regard to the original cost of the subject necklace was Rs.4,40,000/-, there was no mentioning with regard to the Original Cost or clear mentioning with regard to the estimated amount of Rs.3,67,000/- includes the replacement of 4 Ruby beads, as even in Ex.A-2 Cash Bill, being the valid document issued by the Opposite Party, the Opposite Party had failed to provide the description of replacement of 4 Ruby beads with that of Onyx beads. And it is also to be noted that the Complainant has not claimed for any discount of Rs.25,000/- but she has claimed for reduction of 4 Ruby beads replaced, hence the contentions of the Opposite Party are not legally sustainable. The other claims made by the Complainant with regard to the difference in charges on Gold rate levied for the New Gold purchased and the Old Gold exchanged by the Opposite Party, the contentions of the Opposite Party that having acknowledged, accepted, signed and paid the Bill by the Complainant, is acceptable, as the Complainant had exchanged her old Gold on various dates and only on the prevailing exchange rates, the rates of the Old Gold exchanged by the Complainant were mentioned in Ex.A-2 and Ex.A-3, at the same time it is to be made clear that if any discrepancy other than the agreed terms found in Ex.A-2 the Complainant is entitled to claim, as pointed out by the Complainant in respect of non-reduction of the value of 4 Ruby beads replaced, as discussed above. The Opposite Party had relied upon Judgement reported in 2021 SCC online SC879, passed by Hon’ble Supreme Court in Civil Appeal No.5759 of 2009 in SGS India Ltd Vs Dolphin International Ltd., wherein it was observed that the onus of proof that there was deficiency in service is on the Complainant. If the Complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint. The rule of evidence before the Civil proceedings is that the onus would lie on the person who would fall if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the Complainant which would not apply to the instant case, as from Ex.A-1 it would be clear that the unfair trade practice committed by the Opposite Party had been proved by the Complainant.

16.    In the given circumstances it is clear that the Opposite Party having agreed to reduce the value of 4 Ruby beads replaced, valuing to a sum of Rs.26,426/- being calculated as per Ex.A-2 by the Complainant, had lethargically and negligently failed to carry out the reduction of the said amount after adjusting the value of replaced Onyx beads in Ex.A-2, and it would also be clear that the Opposite Party under Ex.A-4 with a vague reply without mentioning the particulars of date of purchase/order or when the subject necklace was made ready after alterations and delivered to the Complainant, as well as on which date the Complainant and her husband sought for clarifications, but had offered an ad hoc discount of Rs.7,500/- and sought for proof for agreed further discount of Rs.25,000/-, when the Complainant had not sought for any discount and had claimed her legitimate reductions of 4 Ruby beads replaced, would clearly amounts to Unfair Trade Practice adopted by the Opposite Party. Therefore, this Commission is of the considered view that the Opposite Party had committed Unfair Trade Practice and caused mental agony and financial loss to the Complainant. Accordingly Point No.1 is answered.

Point Nos.2 and 3:

17.    As discussed and decided Point No.1 against the Opposite Parties, the Opposite Party is liable to pay a sum Rs.26,436/- being the cost of 4 Rubies replaced together with interest @9% p.a from 19.02.2016 to till the date of realisation and also to pay a sum of Rs.25,000/-  towards unfair trade practice along with cost of  Rs.5,000/-. Accordingly Point Nos. 2 and 3 are answered. 

     In the result, this complaint is allowed in part. The opposite Party is directed to pay a sum of Rs.26,436/- (Rupees Twenty Six Thousand Four Hundred and Thirty Six Only) being the cost of 4 Rubies replaced together with interest @9% p.a from 19.02.2016 to till the date of realisation and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards unfair trade practice along with cost of  Rs.5,000/- (Rupees five thousand only) to the Complainant within 8 weeks from the  date of receipt of this order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 28^th of April 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1	-	The estimation slip
Ex.A2	19.02.2016	Cash bill
Ex.A3	01.08.2015	Purchase bill
Ex.A4	24.11.2016	Opposite Party’s Reply letter to Legal Notice
Ex.A5	10.12.2016	Envelope of the Letter

 

List of documents filed on the side of the Opposite Party:-

 

• NIL  -

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT