DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 30^th day of January, 2024

                          Filed on: 12/10/2021

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                  Member                                                        

CC NO. 362/2021

Between

COMPLAINANT

Dr. Nimmy K. Simon, D/o. Simon Peter, Illickal House, Udyogamandal, Ellor Ferry, House No. 29, Ernakulam 683501.

VS

OPPOSITE PARTY

Arun, Manager, IDFC First Bank, 54/3106C, 1^st Floor, Grace Corner, Kaloor, Kadavanthra, Cochin 682020.

(Rep. by P. Sathisan, Patel Complex, Basin Road, Ernakulam, Kochi 31)

FINAL ORDER

Sreevidhia T.N., Member:

1. A brief statement of facts of this complaint is as stated below:

The complainant states that she had purchased a mobile phone from the opposite party on instalment basis (EMI). Rs.1,500/- was to be paid in monthly instalments. The complainant had defaulted the monthly payment only once when she was affected with Covid. The complainant states that on 02/08/2021she had deposited the instalment amount into the account of the complainant and the opposite party had not collected the instalment amount from the account of the complainant. Instead of collecting the instalment amount, the opposite party had debited Rs.295/- four times on 03/08/2021. The complainant states that the collection date of the EMI was on the 2^nd day of every month and the opposite party asked the complainant to deposit another Rs.1,500/- to the account of the complainant as EMI. The complainant is not ready to deposit another Rs.1,500/- towards EMI for the month of August, 2021. The opposite party demanded Rs.6,770/- due to the non-payment of the instalment amount. Hence the complainant approached this Commission seeking orders directing the opposite party to pay Rs.45,000/- to the complainant for the mental agony, pain and harassment.

2. Notice :

Notice was issued to the opposite parties from this Commission on 16/11/2021. Opposite party appeared and filed their vakalath and version on 10/10/2022. Version filed by the opposite party is belated and hence cannot taken into consideration.

3. Evidence:

Evidence in this complaint consists of the documentary evidence filed by the complainant which are marked as Exbt. A1 and A2.

The complainant was absenting continuously and hence notice was issued to the complainant to appear before the Commission and to adduce evidence and to file ex-parte proof affidavit. As per the track record details of the notice sent to the complainant the item delivery was confirmed on 15/03/2023. But the notice to the complainant returned with an endorsement ‘addressee left’.

The complainant has not turned up and proof affidavit filed. No oral or documentary evidence from the side of opposite party.

The matter was posted for adducing evidence of the complainant to 18/03/2023. However the complainant did not appear to give adduce. In the above circumstance we have perused the available documents submitted by the complainant. Exbt. A1 is a notice sent to the complainant dated 03/09/2023 from Udit Sharma & Associates Advocates and Legal Consultants. In this notice it is stated that in spite of repeated demands, the complainant had committed series of defaults of the terms and conditions of the loan agreement and failed to pay the monthly installments towards the repayment of the loan. As per this letter there was a demand of Rs.6,772/-. The complainant is directed pay this amount within 7 days from the date of receipt of the letter. Exbt. A2 is the account details of the complainant’s account No. 855810110003679. It is seen that there was deposit of Rs.1,500/- on 02/08/2021. The complainant did not produce any other documents to support her case. Proof affidavit also not filed by the complainant.

Considering the above circumstance, especially the non-appearance of the complainant to adduce oral evidence and to make her presence in any of the hearing date, we find that the complainant has not been successful enough to prove her case by adducing at least to bare minimum evidence to substantiate her case.

In the case of SGS India Ltd. Vs. Dolphin International Ltd. 2021 AIR SC 4349 held that The onus of proof of deficiency in service is on the complainant in the complaint under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission therefore without any proof of deficiency the opposite party cannot be held responsible for deficiency in service.

Resulting we find that the complaint is liable to be dismissed for want of evidence regarding deficiency of service on the part of opposite party.

Pronounced in the Open Commission this the 30^th day of December,2023.

Sreevidhia.T.N, Member

D.B.Binu, President

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s evidence

Exhibit A1: Copy of notice

Exhibit A2: Copy of account details of complainant.

Opposite party’s evidence

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 362/2021

Order Date: 30/01/2024