IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 20thday of June, 2023.
Filed on 19.12.2022
Present
1. Smt.P.R Sholy, B.A.L, LLB (President-in-charge )
2. Smt.C.K.Lekhamma, B.A, LLB (Member)
CC/No.319/2022
between
Complainant:- Opposite party:-
Smt.Sobhana.S 1. Sri.Unnikrishnan
Anandalayam Proprietor, Aayilyath Jewellers
Muthukulam North Chelippallil Buildings
Choolatheruvu P.O. Pandavarkavu Junction
Alleppey-690506 Muthukulam
(Adv.R.Aravindakshan &
Mathu Murali) 2. Sri.Unnikrishnanapilla
Chemathu Kizhakkethil
Muthukulam North
Choolatheruvu P.O.
Alleppey-690506
3. Smt.Sruthi
-do- -do-
(Adv.P.S.Sreepathy for Ops 1 to3)
4. The District Police Chief
Office of the district police chief
Alappuzha
(Exparte)
5. The Station House Officer
Kanakakkunnu Police station
Velanchira, Alleppey
O R D E R
SMT. P.R SHOLY (PRESIDENT IN CHARGE)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant’s husband is an ex-service man and complainant is an Asha worker. While the couples were in search of jewelers to give orders for the gold ornaments required for the marriage of their daughter, the proprietors of Ayilyath Jewelers, Muthukulam approached and informed them of their various schemes as per which ornaments can be booked. They told that the ornaments are provided or arranged from the famous jewelers TC gold, Trissur where there are variety models. The parties will be taken there to select the required models. Booking will be accepted on payment of 70% of cost.
Considering the frequent visit and request, attracted by their words and promise of supplying the gold ornaments in time, the couples reached the opposite party jewelers on 22.01.2021 to book the required 25 sovereign gold ornaments.
The opposite party jeweler told them that the cost of the 200 gms gold comes to Rs.8,14,000/- @ Rs.3700/-per gm. Out of this amount 70% should be remitted in advance and the balance at the time of handing over the ornaments. The opposite party also directed them to remit atleast Rs.6 lakhs being a part of the cost of 200 gms. The complainant therefore paid Rs.1 lakh in cash and for balance cash cheque No.548857 dated 22.01.2021 for Rs.5 lakhs was also handed over (Joint account No.37051555369 in the name of complainant and her husband in SBI, Karthikappally) to the opposite party.
The opposite party has encashed the cheque on that day itself. After this they also handed-over the order form. The promise was that the gold would be handed over during the first week of March. The complainant now demanded to take them to the jewelers TC gold, Trissur to enable them to select the suitable model of the ornaments. After several days of request the opposite party took them there on 15.04.2021. Thus the selection of the model was completed satisfactorily. After the completion of the process the proprietor of TC gold informed that the manufacturer of the ornaments of the selected models will be completed at once and handed over to the opposite party, to be handed over to the complainant.
The complainant approached the opposite party several times for the ornaments with the balance cash since the date of marriage was fast approaching. However, they stated several excuses and thus the gold ornaments were not handed over. Since the ornaments were not handed over the marriage had to be postponed and finally could not be conducted. The non conduct of marriage due to the non receipt of the ornaments was a great shock to the complainant and her family which put them in utter grief and disappointment. The complainant also contacted the opposite party directly and requested the ornaments accordingly, when the complainant reached there on a day on which the opposite party had promised assured delivery, it was found that the shop was closed. When the complainant reached their residence it was found that the door was locked. There after the complainant tried to contact the opposite party over phone, but none took the phone.
According to the complainant the act of the opposite parties in not supplying the promised gold ornaments yet no refund in the amount yet is illegal, utter deficiency of service and unfair trade practice. the complainant had took the decision to purchase the ornaments from the opposite parties, considering the advertisement of the opposite parties via all sources of media as regards the supply of the required fashion ornaments in the promised time, if 70% the cost is paid as advance. However, the opposite parties have cheated the complainant by the non supply of ornaments this act of cheating has affected the life of the complainant’s daughter, which has, in turn, affected badly the life of the complainant put her in utter grievances, great shock, mental agony and disappointment. Hence this complaint.
Opposite parties 1 to 3 filed version are as follows:-
The complaint is not maintainable either in law or on facts. This complaint is filed only on an experimental basis. No amount was accepted by the opposite party from the complainant or his husband as alleged in the complaint. This complaint filed only to defame the opposite party without any evidence against the opposite party. The complainant had filed petition before the Police Station, Kanakakkunnu for the same matter for which the complainant stated that they were given 6 lakhs rupees as advance to the opposite party on 21.01.2021 for booking of 200 gm of gold @ 3700/- per gram to which Rs.1 lakh paid as cash and Rs.5 lakh through cheque. But in the complaint it is contradicted as stated that the couples reached the respondent’s jewellers on 22.01.2021 to book the required 25 sovereign of gold ornaments.
The disputed matter is under investigation and to which the complainant is trying to make evidences fraudulently; no evidence adduced by the complainant for proving the acceptance of cheque and money by the opposite party from the complainant. There was no transaction between the complainant and opposite party and opposite party is also having no aquintance with the complainant. Complainant has no consumer relationship with the opposite parties. Hence the complaint may be dismissed.
4th opposite party declared as exparte.
5th opposite party filed version as follows:-
A crime No.213/2021 under Ss.406, 420 and 34 of IPC has been registered as per the statement given by Santhosh Kumar aged 41, S/o Chellappan, Porreekkal Veedu, Muthukulam Vadakkum Muri, Muthukulam Village, against the 1st opposite party in connection with the disputed matter of not giving gold ornaments as assured by the opposite party after accepting advance amount from 8th persons including the complainant during the period from 22.01.2021 to 09.07.2021. A final report submitted before the Hon’ble Judicial First Class Magistrate Court-1, Harippad on 05.12.2021 after completing its investigation and the same was under trial before the said court as CC No.1153/2022 in which the complainant was made as 5th witness.
Subsequently as per the order of Hon’ble High Court of Kerala in Crl.M.C No.2/2022 filed by the 9th witness in the said case the further investigation was handed over to the State Crime Branch and the same was re-registered as CBCID crime No.229/2022 and investigation is going on.
In crime No.213/2021 of Kanakakkunnu P.S, the 1st opposite party who was the accused in that crime was arrested by the Police and produced before the Hon’ble Court and thereby remanded and thereafter released on bail during the period of investigation.
On the above pleadings the points raised for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
- Whether the complainant is entitled to return the amount of Rs.6 lakhs with interest from the opposite parties?
- Whether the complainant is entitled Rs.2 lakhs from the opposite parties for not supplying the gold ornaments and its consequential issues?
- Whether the complainant is entitled Rs.1 lakh as compensation from the opposite parties?
- Reliefs and costs?
Evidence in this case consists oral evidence of PW1 to PW3 and Ext.A1 to A8 and MO1 and Ext.X1 and X2 from the side of the complainant. No oral as well as documentary evidence adduced from the side of opposite parties. Heard the counsel appearing for the complainant. Though the counsel appearing for the opposite parties submitted that the notes of argument was being filed not yet filed the same.
Point No.1 to 4
PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and got marked Ext.A1 to A8. She also produced a pen drive recording the conversation and transaction between the complainant and opposite party at the shop which recorded in her mobile phone at the time of entering a contract for purchasing gold ornaments and the same is played in a lap top and marked as MO1.
PW2 is the husband of PW1. He filed an affidavit in support of the complaint.
PW3 is the branch manager of SBI, Karthikappally branch, who produced statement of account (Joint SB account of PW1 and PW2) from 01.01.2021 to 22.11.2021 (in the deposition it is mistakenly entered as 22.01.2022) and the same is marked as Ext.X1. He also produced the original cheque having No.548857 along with its photocopy and after verified it the photocopy of the said cheque marked as Ext.X2.
No oral as well as documentary evidence adduced by the contesting opposite parties 1 to 3.
Complainant’s case is that while searching for a jewellery to purchase gold ornaments for her daughter, the owner of Ayilyath Jewellary, Muthukulam approached them and described various schemes of their shop. They also made believe the complainant and her husband that they being purchased the gold ornaments from TC gold, Thrissur, a famous gold merchant where variety of models of ornaments are there. They further assured that they can book the gold ornaments by remitting 70% of price of gold ornaments in advance. Accordingly the complainant along with her husband reached the Ayilyath Jewellery on 22.01.2021 and booked 25 sovereign of gold ornaments by remitting Rs.6 lakhs to the opposite parties in which they paid Rs.1 lakh by cash and Rs.5 lakhs by cheque. Opposite party had agreed the rate of gold as Rs.3700/- per gram for which they demanded 70% of its purchase value as advance. The cheque given by the complainant to the 1st opposite party was encashed by the opposite party on the same day itself. Thereafter the complainant repeatedly requested the opposite party to bring them to TC gold, Thrissur as assured by them and accordingly they reached 15.04.2021 and selected the gold ornaments. Thereafter the proprietor of TC gold informed the complainant that the ornaments are handed over to the opposite party after finishing its work. Then the complainant approached the opposite parties for purchasing the booked gold ornaments along with balance amount particularly the proposed marriage date of their daughter was being reached. But the opposite parties evaded from their promise saying some or other excuses. The said acts of the opposite parties followed to postpone the proposed marriage of their daughter which caused much mental struggle and mental agony to the complainant and her family. Though the complainant approached the opposite parties directly or through phone calls for refund of the amount or the gold ornaments, the same was not succeeded since the shop and residence of the opposite parties were locked and they were absconded. Hence the complainant filed this complaint for refund of 6 lakhs rupees along with compensation and cost.
Opposite parties 1 to 3 filed version disputing the entire transaction alleged in the complaint. They pleaded the discrepancy of the date shown in the statement given to the local police in connection with the criminal case regarding the said dispute and the date mentioned in this complaint. In the version it is also stated that the matter in dispute is under investigation by the authority which is under trial before the Hon’ble Judicial First Class Magistrate Court, Haripad and also averred that there is no documents regarding the acceptance of money and cheque by the opposite parties.
The oral evidence of PW3 coupled with Exts.X1 and X2 reveals that an amount of Rs.5 laksh withdrawn from the joint account of the PW1 and PW2 maintained in SBI, Karthikappally branch by one Unnikrishnan on 22.02.2021. In this connection it is to be noted that as per Ext.A3, one Unnikrishnan, Proprietor, Aayilyath Jewellers received an amount of Rs.6 lakhs from PW2, the husband of PW1 on 22.01.2021 as booking amount for gold. It is also to be noted that, though the opposite parties denied the signature of the drawee shown in the cheque, it was not done with respect to Ext.A3.
As the opposite parties 1 to 3 disputed the entire transaction with the complainant and her husband, in the meantime PW1 produced MO1 pen drive in which she collected the video and audio recordings in her phone during the transaction at the shop of opposite parties. Though the counsel appearing for the opposite parties discredit its veracity as concocted evidence, PW1 shows its original in her mobile phone before this Commission. During conversation it is seen that the 1st opposite party, the owner of the jewellery had written a paper in the form of a letter head and handed over to one of the relatives accompanied with the complainant which again he handed over to the person whose sound is only heard and identified by the complainant as herself in which the wordings Bbn-ey¯v Pyph-te-gvkv, kptZ-h³, B\-´m-e-bw, apXp-Ipfw etc seen written. After some time it is seen the person who worn the green shirt who identified as PW2 wrote something which we found as a cheque book. Thereafter he detached the written cheque leaf from the cheque book and along with 2 bundle of 500 rupees currency he stand up towards the owner of the jewellery and handed over to him. In the meantime it is heard as said the 1st opposite party that the rate fixed for Rs.3,700/- per gram of gold and even if the paper written by him is lost in anyway, he did not deny the transaction later as he received Rs.6 lakhs for 25 sovereign of gold at the total rate of Rs.8,14,000/- from the complainant.
Accordingly the complainant categorically proved the transaction of Rs.6 lakhs to the opposite party. As per Ext.X1 and Ext.A.2 and A4 the cheque amount of Rs.5 lakhs was withdrawn by Unnikrishnan. Though the counsel appearing for the opposite party was disputed the signature shown in Ext.X2, it is unbelievable to us that whether a third person can present the said cheque on the same day itself without the knowledge of the bearer of that cheque. In the said circumstance it also bear in our mind that PW3 categorically deposed that it is not a question of identification of person on presenting a bearer cheque before them. It is also deposed that it was the opposite party who had withdrawn the amount shown in Ext.X2 and wrote his name and address on the reverse side of the cheque. Accordingly as deposed by the PW3 it is the 1st opposite party (2nd opposite party also the same person) who had presented the cheque amounting Rs.5 lakhs on 22.01.2021 and encashed from the joint account of PW1 and PW2.
In the light of above discussion we are of the opinion that the complainant is entitled to get Rs.6 lakhs from opposite party No.1 and 2 who are the one and same person. Regarding compensation we consider only the matter of not giving the gold ornaments as assured by the opposite party which amounts to deficiency in service on the part of opposite parties and an amount of Rs.25,000/- ordered as compensation to the complainant. The other pleadings of mental agony as non-functioning of marriage of the daughter of the complainant, nothing brought in evidence for the same by the complainant, hence no compensation ordered on that count. These points are answered accordingly.
Point No.5
In the result complaint stands allowed in part in the following terms:-
A. Opposite party No.1 and 2 are directed to refund Rs.6 lakhs along with interest @ 9% per annum from 22.01.2021 till realisation to the complainant.
B. Complainant is entitled Rs.25,000/- (Twenty five thousand only) as compensation from opposite parties No.1 and 2.
C. Complainant is also entitled Rs.10,000/- (Ten thousand only) as cost of the proceedings from opposite parties No.1 and 2.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 20th day of June, 2023.
Sd/-Smt. P.R. Sholy (President in Charge)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Smt.Shobhana S (Complainant)
PW2 - Sri.Sudevan N (Witness)
PW3 - Sri.Ratheesh Kumar C (Witness)
Ext.A1 - Post office passbook
Ext.A2 - SBI passbook
Ext.A3 - Bill dtd.22.01.2021
Ext.A4 - Copy statement of account dtd.22.07.2021
Ext.A5 - Petition receipt dtd.24.07.2021
Ext.A6 - Petition receipt dtd.12.02.2022
Ext.A7 - Reply letter
Ext.A8 - Receipt dtd.02.03.2022
Ext.X1 - Certificate under S.2A(a) of the Banker’s Book of Evidence Act,1891
Ext.X2 - Copy of cheque leaf
MO1 - Pendrive
Evidence of the opposite parties: NIL
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
