DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 07th day of February 2024
Filed on: 24.05.2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C NO.264/2022
COMPLAINANT
Retheesh NM Aged 40 yrs, S/o Shri. Muraleedharan Nair Nadathedath House N.A.D(PO) Aluva-683 563.-
Vs.
OPPOSITE PARTY
Dan Jose the Managing Director M/s.Dawngate Business Link Near railway gate, Mulanthuruthy (Electro era Business Link) Ernakulam, Kerala - 682 314 Mob. 7306524390.
F I N A L O R D E R
D.B. Binu, President.
A brief statement of facts of this complaint is as stated below:
The complaint is filed under Section 35 of the Consumer Protection Act, 2019. On February 14, 2022, the complainant purchased an electric motor scooter for Rs. 83,000, with the opposite party assuring it would achieve 80 KM mileage on a single charge. However, the vehicle failed to meet this mileage claim, causing significant inconvenience in daily use. Several other issues were reported:
(a) The speedometer displayed only half of the actual distance travelled. (b) The battery indication system was faulty. (c) The vehicle did not provide the promised 80 KM mileage.
On May 9, 2022, the scooter broke down and ceased to function. The complainant sought assistance from the opposite party, but they initially did not respond and even took some vehicle parts away for repairs. The opposite party allegedly threatened the complainant when the complaint was raised. It was only after approaching the commission that the opposite party staff finally repaired the defects on May 23, 2022.
The complainant has requested the Commission to:
(a) Instruct the opposite party to take back the vehicle and refund the purchase amount. (b) Provide compensation of Rs. 30,000 for the mental agony suffered by the complainant. (c) Take appropriate measures to prevent the opposite party from selling defective products without ensuring quality and timely support. Additionally, take action against the opposite party owners for threatening consumers.
2) Notice
The Commission sent notice to the opposite party, which was acknowledged by them, but the opposite party did not file their version. Therefore, the opposite party has been set as ex-parte.
3). Evidence
A proof affidavit was not filed by the complainant; however, they submitted 7 documents which were marked as Exhibits A-1 to A 7.
Exbt A1. copy of Adhar Card
Exbt A2. copy of the Brochure
Exbt A3. copy of the Warranty Card
Exbt A4. copy of the Tax Invoice- dated 14-2-22.
Exbt A5. copy of the photograph
Exbt A6. copy of the photograph
Exbt A7. copy of the photograph
5) 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?
6) The issues mentioned above are considered together and are answered as follows:
The complainant failed to submit a proof affidavit despite multiple opportunities and did not participate in subsequent case hearings. According to the commission's records, the complainant filed a proof affidavit on 20-10-2023; however, upon verification, it was found that no proof affidavit had been submitted. Furthermore, on 16-08-2023 and 20-10-2023, the commission's office informed the complainant of the upcoming hearing dates via phone, but the complainant failed to attend these scheduled dates as well. Due to their intermittent absence and the absence of supporting evidence, the Commission is compelled to proceed with the disposal of the complaint based on the available evidence.Top of Form
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite party.
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. “
In a series of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the Commission. Mere allegations of negligence are insufficient to support the complainant's case. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite party. Therefore, the complaint is dismissed, and no relief is granted to the complainant.
We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that the case presented by the complainant is meritless. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission this is the 7th day of February 2024.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
APPENDIX
Complainant’s Exhibits
Exbt A1. copy of Adhar Card
Exbt A2. copy of the Brochure
Exbt A3. copy of the Warranty Card
Exbt A4. copy of the Tax Invoice- dated 14-2-22.
Exbt A5. copy of the photograph
Exbt A6. copy of the photograph
Exbt A7. copy of the photograph
