PREM PRAKASH PANIGRAHI vs BANKA JEWELLERS

-C.D. Appeal No. 548 of 2001 is by the complainant for higher compensation and C.D. Appeal No. 556 of 2001 is by the trader dealing in sale of gold ornaments, against the order of the District Forum, Sambalpur, directing the trader to discoutinue the practice of issuing ROUGH Estimate on sale of ornament instead a regular receipt, delete the arbitrary and unfair terms and conditions for deduction of certain amount at the time of exchange of the old ornaments and to issue guarantee card indicating the detailed break-up for information of the customer in an unambiguous manner, and also to pay Rs. 1,000/- to the complainant towards litigation expenses.

COMPLAINANT''s case in brief is, he purchased one pair of Latkan for his wife Sujata Mishra from the shop of the opposite party-Jeweller on 9.1.2000. The weight of the gold ornament was 3.080 grams and an estimate was issued by the jeweller showing receipt of Rs. 1,520/- towards its cost. The allegation of the complainant is that the jeweller issued only an estimate instead of issuing a cash memo mentioning the detailed break-up of the charges paid for information of the customer. In the foot-note it has mentioned that the gold ornament was of 20/22 carat purity. According to the complainant, this has made the offer vague and ambiguous and brings out instance of unfair trade practice. The further allegation of the complainant is that on the back side of receipt issued by the jeweller the following terms and conditions were printed: "Terms of Business: 1. Goods once sold cannot be returned. However they can be exchanged (provided they are not used) within a week from the date of purchase. 2. While purchasing our (S.B.) old gold ornaments the following deductions will be made: 1. Making charges. 2. Sales Tax. 3. Stones, Pearls, Beeds if any. 4. Soldering 100 mg. per gram. 5. Ten rupees per gram on the prevailing market rate if cash returned."

The complainant objected to the last two conditions i.e., deduction of 100 mg. per gram and charging ten rupees per gram on the prevailing market rate, if cash returned.

THE complainant had earlier filed C.D. Case No. 1 of 1998 against the jeweller in the District Forum, Sambalpur, alleging unfair trade practice for mentioning gold purity as 22/20 carat. In that case the jeweller explained the theory of Jhal Patia Soldering in order to escape their liability, but the District Forum did not accept it and held the jeweller guilty of committing fraud and unfair trade practice. It directed that purity of a gold and silver ornaments displayed for sale in the shop should he marked with certainty and sold with guarantee and not in an ambiguous manner. The jeweller filed appeal against the order of the District Forum before the State Commission. The State Commission confirmed the order of the District Forum. This was also challenged before the Hon''ble National Commission, but the Revision Petition was dismissed.

IN this case the jeweller filed a written version denying the allegation of the complainant. He averred that they had not sold any pair of Latkan of 22 carat gold on 9.1.2000. According to them, the receipt is only a rough estimate given to somebody on his asking. Since there was no transaction, there was no question of any bill. Heard the learned Counsel for the appellants in both cases and the learned Counsel for the respondent. In our considered opinion the District Forum has taken a right view. We do not find any infirmity in the order of the District Forum. The order of the District Forum is confirmed. The appeal of the jeweller is dismissed. No cost. Mr. Justice D.M. Patnaik, President.-I have gone through the leading judgment of my learned Sister Dr. A. Mohanty. The facts have been succinctly mentioned therein, considering the importance of this issue, I offer my views.

CONSIDERING the materials on record and on physical verification of the gold ornament and the original documents, the District Forum in paragraph 28 of the judgment held that the appellant-jeweller committed gross negligence, deficiency in service as well as unfair trade practice by selling the gold ornament but not issuing cash memo with break-up for charges, etc. and guarantee card. It also held that deduction of 100 mg. per gram and Rs. 10/- per gram at the time of resale by the customer to the trader was also unreasonable. However, it did not believe the case of the complainant that in fact he ever demanded a receipt to which the opposite party refused. It further held that the complainant did not insist for a receipt, but accepted the rough estimate only with a view to file a consumer case like the earlier one against the trader. The Forum did not award any compensation holding that the complainant had been awarded compensation form the opposite party earlier and that the complainant had not suffered any financial loss presently and, therefore, it would not be proper to enrich the complainant by awarding ''frequent'' compensation in his favour for similar allegations. It, however, recorded a word of appreciation for the action of the complainant as consumer activist. It directed the opposite party to discontinue the practice, as mentioned above.

THERE is no doubt with regard to proposition of law advanced by Mr. Panigrahi that traders while selling consumable goods and for that matter in the present case any good ornament, should issue a cash memo to the customer which shall indicate the weight of the ornament, the purity of gold in specific terms, such as it should be either 20 carat or 22 carat, but not mentioning together 20/22 carat. The District Forum held that there was no material from the side of the complainant to show that he ever demanded a cash memo and guarantee card and the opposite party refused to issue such a card. We confirm this finding of the District Forum as correct and on my own examination of the complaint petition I find that there is no such averment also. THEREfore, this part of the judgment of the District Forum is confirmed as correct. The allegation of the complainant is that the opposite party contrary and with utter disregard to the decision of this Commission, confirmed by the Hon''ble National Commission in the earlier case, still continued the practice of mentioning the purity of gold as 20/22 carat and, therefore, the compensation should be heavily awarded for such repeated action of the opposite party. I am not agreeable to the submission of Mr. Panigrahi in this respect. In the earlier case against this appellant vide judgment in C.D. Appeal No. 415 of 1998, disposed of on 28.1.1999, the appellant mentioned the purity of the ornaments as 20/22 carat on the cash memo and guarantee card, etc. Therefore, the District Forum as well as this Commission rightly held that this was confusing to the customers. But in the present case on a close scrutiny of the allegation of the complainant in that regard and on examining Annexure-1, the rough estimate dated 9.1.2000, we find on the body of the estimate it has been mentioned as 22 carat. Mentioning of 20 carat along with 22 carat is totally absent. Therefore it could not be said that in the present case the cash memo or even in the rough estimate the opposite party repeated the same unfair trade practice the way it was done in the earlier case.

No doubt in the foot-note of Annexure-I, it has been mentioned 22/20 carat. But this would arise only in case of a refund as noted therein. Complainant has taken exception to the mentioning of the purity of gold as ''22/20 carat'' in the foot-note of Annexure-I. I do not find there is anything wrong in mentioning the purity of gold in that manner, because the apparent meaning is that if at all there is a question of refund, the same shall be subject to deduction of making charges and this making charges may be in case of either 20 carat or 22 carat in the ornament in question. In other words such making charge may relate to either the ornament having the purity of gold 20 carat or 22 carat Therefore, this mentioning itself in the foot-note in this particular case would not amount to unfair trade practice. But what has to be clarified or should be laid down as a law by this Commission is with regard to terms and conditions imposed on a customer at the time of refund or exchange of the ornament which issue has been the subject-matter of several similar cases of this nature presently being dealt with. I have felt it necessary to make the law clear in this regard.

THE traders must bear it in mind that they cannot put a condition at the time of selling any ornament that under no circumstances it can be returned and money paid back. Such a condition would be against the Law of Contract/Sale of Goods Act. A trader who sells a defective goods or article is bound to take it back, and refund the price or exchange, the choice being with the customer. A customer is free to return the goods for its full value in case the same is a defective one, whether covered under a guarantee or not. In such a case deduction of any amount whatsoever towards making charges, cost of soldering materials, etc. would not be permissible. THE whole of the ornament or the article has to be returned against the price paid. So far as exchange is concerned, the District Forum has held the terms of exchange as arbitrary and attract the definition of unfair trade practice. But the complainant challenges only the conditions as mentioned under serial Nos. 4 and 5 of the terms of exchange. He has accepted deduction in the manner as per serial Nos. 1 and 3. Therefore the District Forum''s judgment would only relate to these terms and conditions with the modification, the appeal is dismissed. We accordingly confirm the order of the District Forum to the extent. But I am not agreeable to the contention of Mr. Panigrahi that the compensation amount should be enhanced. This is for the simple reason that it is not the case of Mr. Panigrahi that he ever wanted to exchange the ornament or ever asked for a refund on the ground that the ornament was defective.

WE accordingly dismiss the appeal of the trader and also dismiss the appeal preferred by Mr. Panigrahi so far it relates to the enhancement of the compensation amount. No cost. Appeals dismissed.