DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 654/2016
Date of Filing: Date of Admission: Date of Disposal:
28.10.2016 15.11.2016 05.06.2018
Complainant:- 1. Santosh Karmakar
Vill- Fulsara (Pabnapara)
P.O- Chandpara,
P.S- Gaighata,
Pin- 743245
=Vs.=
O.P/s:- 1. The Branch Manager of
Manappuram Finance Limited
Bongoan Branch, Simultala,
Pin- 743235
P R E S E N T :- Bankim Chandra Chattopadhyay………..….. President.
:- Smt. Silpi Majumder ………………………….. Member.
:- Siddhartha Ganguli …………………………….. Member.
Final Order & Judgment
An application has been filed by the complainant U/S 12 of the C.P Act,1986 praying for return of deposited gold ornaments weighing of 13.50 gm + 16.20 gm totaling 29.70 gm or amount according to market price of the respective gold ornaments along with compensation of Rs.50,000 for harassment and mental agony plus litigation cost of Rs. 5,000/ to the complainant.
The gist facts of the complainant is that the complainant took two gold loans of Rs.34,800/ from O.P after depositing gold ornaments such as ear rings, chain etc total weighing about 29.70 gm and the respective loan a/c No were 0119020700005954 & 0119020700005511and he had been paying interest regularly to the O.P.
It is stated by the complainant that he came to know that due to theft or robbery at the premises of the O.P the gold ornaments of the complainant has been stolen and a police case has been started at Bangaon P.S. and subsequently the police recovered the stolen gold and kept in the court’s custody. The complainant thereafter demanded for return of his deposited gold to the O.P but the O.P did not pay any heed to. The complainant approached to the Asst. Director, C.A & FBP for mediation but the mediation failed. Finding no other alternative he filed this case before this Forum alleging deficiency in service with the prayer as made in the petition.
Typed & Corrected by me
Member Cont…….P/2
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CC- 654 of 2016
Relief Sought For:
The complainant prays for a direction to be given upon the O.P to return of deposited gold ornaments weighing of 13.50 gm + 16.20 gm totaling 29.70 gm or in the alternative payment of equivalent amount according to market price of the respective gold ornaments along with compensation of Rs.50,000 for harassment and mental agony plus litigation cost of Rs. 5,000/ to the complainant.
The complainant filed the following documents in order to prove his case.
1. Copy of loan papers dated 01.04.2015 & 16.06.2015.
2. Copy of letter received from O.P dated 07.09.2015
3. Copy of letter letter and two quotation sent to the O.P dated 12.07.2016
4. Copy of advertisement of O.P
5. Copy of drop letter of Asst. Director of C.A & FBP, Barasat.
6. Copy of circular No: 5966 dated 01.07.2016.
The O.P contested the case by filing W/V.
In the W/V the O.P denied all the material facts as alleged in the petition.
It is stated in the W/V that the complainant approached the O.P for availing loan by depositing the gold ornaments as stated above and accordingly the loan was sanctioned for Rs.34,800/ and the O.P issued two pawn tickets to the complainant being No: 0119020700005954 & 0119020700005511 respectively. The premises of the O.P was looted on 05.09.2015 by some miscreants and all the golden ornaments were taken away including the golden ornaments of the complainant and to that effect a case has been initiated by the Bangaon P.S, being No: 985/2015 dated 05.09.2015 at the instance of the O.P. The Police during investigation caught those miscreants and recovered the golden ornaments from them which are now in the custody Court as seized property. The O.P is always ready and willing to return the gold as and when they will receive them from the police or court as per order of the Ld. Court. The O.P further stated that the O.P was not deficient or negligent in providing service to the complainant and prays for dismissal of the complaint petition.
The O.P submitted the copy of seizure list and copy of charge sheet along with the W/V.
The complainant files Evidence through written affidavit in chief. Questionnaire was filed by the O.P and reply was given by the complainant.
Evidence has been filed by the O.P.
The complainant filed B.N.A
From the complaint petition, w/v, evidence of the complainant and other materials on record the following points have been framed:-
- Is the complainant a consumer?
- Is the O.P deficient in service?
- Is the complainant entitled to get any relief as prayed for?
Typed & Corrected by me
Member Cont…….P/3
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CC- 654 of 2016
Decision with Reasons
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
It is admitted position that the complainant took two gold loans amounting to Rs. 34,800/ from the O.P after depositing golden ornaments of various categories such as ear rings, chain etc weighing about 29.70gms and the numbers of such loan a/c are 0119020700005954 & 0119020700005511.
It is also admitted position that a theft/dacoity was committed at the premises of the O.P by some miscreants and all the golden ornaments including the complainant’s have been stolen and a criminal case has been initiated by the O.P and some golden ornaments have been recovered by the police during investigation and accused persons have been arrested . After investigation of the case the police submitted C/S to the Ld. Court. The said recovered golden ornaments are now under the custody of Ld. Court.
After the said occurrence of theft/dacoity, the complainant visited the premises of the O.P on several occasions in order to get return of his golden ornaments but the O.P did not hand over the golden ornaments to him showing the reason that the golden ornaments are in the custody of Court and unless the Court orders to return them to the O.P, the O.P is not able to return the gold ornaments to the complainant. Alternatively, the O.P issued a circular being No: 5966 dated 01.07.2016 from which it is evident that in order to avoid any delay in settlement of gold lost due to robbery and customer complaint the O.P decided to implement the rule for returning gold ornaments and provided four options as stated therein, which are reproduced below:-
- Cash settlement- market rate settlement on the date of robbery by collecting interest upto the date of robbery.
- Provide equal weight of gold and other gold by collecting interest upto the date of robbery.
- Provide new gold to customer with making charge of 5% by collecting upto date interest.
- Provide new gold with above 5% making charge and interest upto the date of robbery (special cases only).
Considering the facts and circumstance of the case and the evidence of the complainant as above, we are of the view that the complainant is a consumer of the O.P as per the definition of Consumer as provided in Sec-2(1)(d) of the C.P Act,1986 and the O.P is deficient as after the occurrence of robbery the O.P failed to settle the loan of the complainant, however the O.P was not responsible for the robbery.
Typed & Corrected by me
Member Cont…….P/4
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CC- 654 of 2016
Further from the Evidence of the complainant it is not clear to us whether the complainant paid all the interest upto the date of robbery or paid the principal amount. No document has been furnished by the complainant in that respect.
Further no market price of gold has been furnished by either of the parties as on 05.09.2015 and therefore we are unable to fix the rate of gold as on the date of robbery. However, as the O.P issued the circular, the complainant may take the gold back from the O.P of the same weight of 22 carat after paying the principal amount and the interest upto the date of robbery i.e 05.09.2015. And in such a case the complainant shall not make any further claim of his gold ornaments which are in the custody of the Ld. Court.
Considering the situation of the case, we are of the opinion that as the robbery took place at the premises of the O.P and the O.P had no other intention but to handover the gold ornaments of the complainant, but he could not do so due to criminal case pending and therefore we are not inclined to pass any order for compensation.
Further, as the case is being conducted by C. A.B we are also not inclined to pass any order in respect of payment of litigation cost.
Hence
It is ordered that the Consumer Complaint being No: 654 of 2016 is allowed on contest.
The complainant is directed to pay all his dues in respect of his two gold loans and pay the principal amount and interest upto the date of 05.09.2015 to the O.P as per the rate of agreed terms and conditions and in accordance with the circular as above , if any pending, within 2 months from this day.
The O.P is directed to return the gold to the complainant weighing of 29.70 gm of 22 carat within 2 months from this day after taking the dues amount i.e principal amount and interest upto 05.09.2015, as per the circular as mentioned above, from the complainant against the gold loans as above.
In case of any disobedience of this order, the parties may put the order under execution as per the provision of the C.P Act, 1986.
Let free copies be given to the parties concerned as per the CPR,2005.
Member Member President
Typed and Corrected by
Member
