DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 22nd day of June, 2023
Filed on: 11/11/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC No. 418/2021
Between
COMPLAINANT
Renjith Krishnan, S/o. KU Krishnan, Haripaadam, House No: KRWA 34 A, Opp. Naik Distributors, Kuthapady Road, Thammanam P.O., PIN: 682032.
VS
OPPOSITE PARTIES
- Bismi Connect Pvt. Ltd., 32/2308, A1 & 2, Geepas Builder Pvt. Ltd., Palarivattom Junction, Palarivattom, Kochi 682035.
- Aaarjav Associates, Door No. 55/2815A, 2nd Floor, Melka Tower, cheruparambath Road, Kadavanthra, Kochi 682020.
FINAL O R D E R
DB.Binu, President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 35 of the Consumer Protection Act,2019. The brief facts, as averred in the complaint, are that the complainant purchased a Lenovo SLIM 3 Laptop from BISMI Connect on September 12, 2021, for their children's study purposes. However, the laptop started experiencing issues from day one, such as slow speed and intermittent freezing, which interrupted the classes and study sessions. Even Zoom did not work properly on the laptop. The complaint alleges that the first opposite party sold a laptop with a broken seal, possibly a demo piece, despite promising a customer demo within three days. Despite having a one-year warranty, Bismi referred the complainant to the authorized service centre, Aarjay Associates, instead of replacing the laptop. The service centre, after examining the laptop, claimed that there were no hardware issues and refused to replace it, even though it was within the warranty period. Aarjay Associates was uncooperative and showed no interest in resolving the issue. The complainant seeks relief in the form of the laptop's price, litigation charges, and compensation for the interruption in studies, totaling Rs 34,349.00. Top of Form
2. Notices
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions. Consequently, the opposite parties are set ex-parte.
3) . Evidence
The complainant had produced 2 documents that were marked as Exhibits-A-1 to A-2.
- Exhibit A-1. Copy of the Bill.
- Exhibit A-2. Copy of warranty card.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the Bill issued by the first opposite party to the complainant (Exhibit A-1). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 2019 and hence (Point No. i) in favour of the complainant.
The above case is filed by the complainant seeking compensation for the deficiency in service of opposite parties in connection with the purchase of a Lenovo SLIM 3 Laptop from the first opposite-party shop.
When the commission took up the case on 23.03.2023, the complainant was absent and had no representation from his side. The case is posted for the evidence of the complainant. The commission has issued the notice to the complainant to appear before the commission and adduce evidence if any. The Notice was sent to the complainant on 28.02.23on and is seen served as per the proof of delivery of the Postal Department. The complainant has not turned up and no evidence adduced to date. So many chances were given to the complainant to adduce evidence. No evidence was adduced by the complainant so far. The complainant is not interested to proceed further.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints 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. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent...” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
In the catena of decisions, it has been held that it is for the complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegations of negligence will be of no help to the complainant. As stated above, there is an absence of expert opinion in support of the allegation made by the complainant against O.P. Nos. 1 and 2. Therefore, the complainant has not been able to prove any deficiency in service or negligence on the part of O.P. Nos. 1 and 2.
We find the issue Nos. (ii) to (IV) are found not in favour of the complainant since the complainant has failed to prove his case by sufficient documents. Hence the following orders are issued.
ORDER
Under the circumstances stated above there is no merit in the contentions raised by the complainant and therefore the complaint is liable to be dismissed and accordingly dismissed.
Pronounced in the Open Commission this the 22nd day of June, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/by Order
Assistant Registrarer
Senior Superintendent
APPENDIX
COMPLAINANT’S EVIDENCE
- Exhibit A-1. Copy of the Bill.
- Exhibit A-2. Copy of warranty card.
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 418/2021
Order Date: 22/06/2023
