State Consumer Disputes Redressal Commission
Managing Director, B. Sirkar Johuree ... vs Anindita Bhattacharya (Saha) on 13 January, 2015
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street,
Kolkata - 700087
First Appeal No.
FA/552/2014
(Arisen out of Order
Dated 11/04/2014 in Case No. Complaint Case No. CC/287/2013 of District
Kolkata-II)
1.
Managing Director, B. Sirkar Johuree Pvt. Ltd.
166,
B.B. Ganguly Street, P.S. Muchipara, Kolkata -700 012.
...........Appellant(s)
Versus
1.
Anindita Bhattacharya (Saha)
1270,
Jessore Road, Naskar Bagan, Chaina Mandhir, Lake Town, Kolkata -700
055.
...........Respondent(s)
BEFORE:
HON'BLE
MR. DEBASIS BHATTACHARYA PRESIDING MEMBER
HON'BLE
MR. JAGANNATH BAG MEMBER
For
the Appellant:
Mr. Barun Prasad Mr. Nabarun Sarkar, Advocate
For the Respondent: Ms Sarbari Datta, Advocate
ORDER
Date:
13-01-2015 Sri Debasis Bhattacharya This appeal is directed against the order dt. 11-04-2014 in Case No. 287/2013, passed by the Ld. District Forum, Kolkata, Unit-II, whereby the complaint has been allowed on contest against the OP. Being highly aggrieved and dissatisfied with the same, the OP thereof has preferred this appeal.
The long and short of the Complainants case is that on 09-09-2008, vide Order No. 6G/653 dated 09-09-2008, she deposited one gold Bala and one pair of gold ear ring weighing 17.250 g. and 4.830 g., respectively, with the OP for redesigning the same into one gold kundan necklace and one pair of gold kundan earrings and the OP assured her to make it ready by 01-10-2008. However, because of her ailments and death of her father-in-law, she could not collect the same in time and ultimately visited OP in the month of September, 2009 to collect it after paying necessary service charge.
However, to her utter surprise, the OP refused to deliver the same to her. When her repeated visits did not yield any positive result, she sent a letter to the OP on 08-12-2010, but the OP did not give any reply to the said letter. So, an Advocates notice dated 16-05-2012 followed, and then vide its letter dated 28-05-2012, the OP assured her to deliver the ornament subject to payment of exorbitant extra charge for keeping the ornament in their custody for so long. The Complainant sent another letter through her Advocate dated 16-06-2012 protesting against such illegal demand for extra charges from the Complainant, but till date the OP has not sent any reply to the same. Out of desperation, the Complainant approached the Consumer Affairs Department on 19-09-2012. However, despite the intervention of the Department, the OP has not relented and so the instant case for getting back the ornament besides other relief(s) as per prayer of the complaint.
OP contested the case by filing written version whereby they denied all the material allegations of the Complainant.
It is stated by the OP that as per the order of the Complainant they executed the job, but the Complainant did not take timely delivery of the gold ornament. Even they made contact with the Complainant at her given address and phone number to remind and request her take delivery of the ornament as she ordered. But, in spite of several reminders, she failed and/or neglected to take delivery of those ornament without showing any cause to the Competent Authority of the OP. After more than two years, the Complainant wrote a letter to the OP claiming her ornament against which, the OP sent a letter dated 16-12-2010, asking her to take delivery of her ornament, but she again remained silent. Then again after near about 1 years, the OP received one letter dated 16-05-2012 from the Advocate of the Complainant to which, they replied vide letter dated 28-05-2012 clarifying the entire matter, as also expressing their readiness and willingness to deliver the ornament as per norms and further raised the claim of extra charges for the purpose of keeping the materials of the Complainant under the care and custody of the OP for so long period. Thereafter, the Complainant visited their showroom and demanded the ornament, but she refused to pay a single farthing on any account. On receipt of notice from the Consumer Affairs Department, the OP attended the tripartite meeting, but nothing positive came out of the said meeting.
There is no deficiency on the part of the OP and therefore, the case should be rejected with exemplary cost.
The moot point for consideration under this appeal is whether the impugned order is in order, or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that the Respondent was supposed to collect the ordered ornament on 01-10-2008. The Order Form, which was provided to the Respondent at the time of receiving her gold ornament, contained certain terms and conditions, which are binding on her.
Although the Respondent denied in her evidence that she signed anywhere in the order sheet, fact remains that, she was/is holding the original copy of the Order Slip with her, which itself contain 08 nos. of the terms and conditions, being part and parcel of the order and cannot be avoided by the Respondent. It is vividly mentioned in Clause No. 4 of the Order Slip, that, Indulgence of months duration for taking delivery of the goods is granted to the customers, but are requested to avoid further delay so as to obviate normal liabilities and also charges for care and custody of the goods. Similarly, it is specifically noted in Clause No. 5 of it, that, After six months, the value of gold advance will be adjusted. It is stated by the Ld. Advocate that on 09-09-2008, the value of gold was more or less Rs. 11,500/- which is to be adjusted from the ordered ornament. Referring to said clauses, it is argued by the Ld. Advocate that in terms of Clause No. 5, on the expiry of the time period of six months from the date of delivery of the ordered ornament, the Respondent has become liable to pay the value of the gold of the ordered ornament as per the date of taking the delivery of the ordered ornament + the additional charges for the care and custody of the goods + additional making charges + the value of the goods deposited as per the rate of depositing the gold and as on 01-04-2009, which was Rs. 14,500/- (approx.). It is also stated that if for the purpose of argument it is considered that the Respondent had visited the shop for taking delivery of the ordered ornament on 12-11-2010, then as on that date the value of the gold was more or less Rs. 18,700/-. It is also stated that as per the principle of the Gold Ornaments Manufacturing Business as per the trade practice, as also as per the terms of the order slip, the Respondent is liable to pay the value of the gold of the ordered ornament as per the current rate and in addition to that the additional charges for the care and custody of the goods and further additional making charges as also the proportionate charges for the insurance of the gold after adjustment of the value of the gold as she had deposited at the rate of the date of deposit of the same. It is averred by the Ld. Advocate that as and when they received any communication from the side of the Respondent, they promptly responded to the same and in fact, when the Complainant did not collect the ordered materials initially, they reminded her over phone to collect the ornament, but on some pretext or the other, she did not turn up. Ld. Advocate also stated that the Respondent cannot avoid taking delivery of the finished goods after it was redesigned as per her choice inasmuch as the Respondent cannot use Appellants shop as her safe deposit vault, at her luxury choice. The Appellant had to make the payment of insurance charges for the gold kept under its care and custody as per the norms of the business practice. The tripartite meeting at the office of the Consumer Affairs Department did not yield any positive result because of the arrogant attitude of the Respondent. Therefore, denying any deficiency in service on their part, Ld. Advocate for the Appellant prayed for setting aside the impugned order. In support of his contention, Ld. Advocate for the Appellant referred to two decisions of the Honble Supreme Court reported in II (1996) CPJ 25 (SC) and 2006 CTJ 625 (SC) (CP) and another decision of the Honble National Commission reported in 2008 CTJ 32 (CP)(NCDRC).
Ld. Advocate for the Respondent, on the other hand, has made out that the failure to collect the ordered ornament from the Appellant was not at all intentional, but she became the victim of circumstances which was beyond her control. However, before sending her first letter to the Appellant on 08-12-2010, she visited the showroom of the Appellant several times, but the latter refused to handover the ornament to her. Although the Appellant responded to her Advocates letter dated 16-05-2012, they did not disclose the extent/quantum of extra charge vide their letter dated 28-05-2012. The Ld. District Forum did not mince words to expose the blanket to sunshine insofar as the sinister design of the Appellant is concerned. The impugned order, being a judicious one, should be upheld.
There can be no manner of doubt that, wittingly or otherwise, there was lapses on the part of the Respondent in the matter of collecting the ordered materials from the Respondent. Although she has clarified that in between the period from 16-09-2008 to 23-01-2009, she was suffering from some ailments and even underwent gall bladder operation and thereafter, her father-in-law died on 07-03-2009, we find it quite intrigue that she called on the showroom of the Respondent in September 2009, i.e., after six months from the date of death of her father-in-law. That apart, it is stated by the Respondent that when her repeated visits to the showroom of the Respondent did not yield any positive result, she shot a letter to them on 08-12-2010 and thereafter, she sent lawyers notice on 28-05-2012, i.e., almost after a period of 1 years and no proper explanation is put forth in this regard by the Respondent behind keeping quiet for so long. Therefore, in our considered opinion, the Ld. District Forum has rightly held her liable to pay custody charge of the ornament.
At the same time, we find discrepancy in the statement of the Appellant. On one hand, it is claimed by the Appellant vide their letter dated 28-05-2012 that they sent several reminder letters (besides making telephone calls) to the Respondent to collect the ordered ornament from them, without enclosing a single letter to corroborate such assertion and that they reminded her over phone to collect the goods from their showroom.
Although it is denied by the Appellant that the Respondent visited their showroom during the period September, 2009 and November, 2010, prior to sending her purported letter dated 08-12-2010, keeping in mind the fact that it is a normal phenomenon for a human being to try and resolve a dispute amicably, by way of visiting the place of the service provider before lodging written complaint, such denial does not appear to be a convincing one.
Furthermore, although the Appellant underscored the necessity of abiding by the terms and conditions mentioned in the Order Slip, it is worth noting that the same does not specify the rate of custody charge of ornament. A service provider is duty bound to disclose full information pertaining to all forms of charges that is applicable to a Consumer. They cannot arbitrarily demand exorbitant charges from a Consumer if the same is not disclosed to the latter beforehand.
From this point of view, we find it quite reasonable the decision of the Ld. District Forum to allow the Appellant to realize custody charge @ Rs. 500/- per year in line with the locker rent charged by banks for small lockers. However, having said that we do not find the reason behind allowing the Appellant to realize custody charge for five years given the fact that the specifically propounded about extra charges for custody for the first time by the reply letter dated 28-05-2012. In fact, according to its contention by its letter dated 16-12-2010, it did not propose any custody charges, but merely reminded the Complainant to take back the ordered ornament. Therefore, in our considered view, the Appellant is entitled to custody charge for the period from 28-05-2012 till this day @ Rs. 500/- per year.
It is not the case of the Appellant that its business capital got stuck up owing to inaction on the part of the Respondent to take delivery of the ordered ornament in time. The Respondent merely placed order for redesigning her old ornament to a new one of similar weight. So, the demand of the Appellant to realize the value of the gold of the ordered ornament as per current rate and additional making charges by taking shelter in the safety of Terms and Conditions of the Order Slip, particularly, Clause No. 5, is simply unjustified and hence, not tenable. In terms of Clause No. 7, the Order slip was valid for 5 years.
Given the fact that the Respondent has filed the instant case before the Ld. District Forum before expiry of the said period, the Appellant is duty bound to handover the ordered ornament to the Respondent or refund the prevailing market price of 22.080 g. gold as on the date of payment of the value of gold of equivalent weight.
However, there being no proper manifestation of any kind of harassment and mental agony on the part of the Respondent, she is not entitled to any compensation or litigation or punitive damages in any other form as awarded in the impugned order.
At the same time, the caustic remarks passed by the Ld. District Forum against the Appellant/OP are totally unfounded and uncalled for and should be deemed as struck off, like, theorization that a goldsmith at the time of making gold ornament of her mother also removes some gold, op tried to grab the gold indirectly and all the gold merchants are of such a nature, jahouree, etc. The Ld. District Forum is impressed upon not to use such unsavory remarks in judicial pronouncements.
As a result, the appeal succeeds in part.
Hence, ORDERED That the appeal be and the same is allowed in part on contest against the Respondent. The impugned order is modified to the extent as under:-
OP is directed to deliver gold ornament weighing 22.080 gm. as per order no. 6G/653 dated 09-09-2008 or to refund the amount of 22.080 gm. gold as per current rate prevailing on the date of refunding the money, on the Complainant paying the custody charges for the period from 28-05-2012 to 13-01-2015 @ Rs. 500/- per year and also the making charges as billed, i.e., Rs. 155/- per gram. OP is directed to comply with the order within 45 days hence i.d. to pay interest @ 9% p.a. on the gold value at prevailing market rate.
JAGANNATH BAG DEBASIS BHATTACHARYA MEMBER MEMBER