DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day of July 2023
Filed on: 08/06/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C C NO. 247/2018
Between
COMPLAINANT
SUDHEER.V, S/o. V.K. Vasu, Vattapilly House, XXXIV/42, Edappally North, 682 024.
VS
OPPOSITE PARTY
INDEX LED LIGHTING, Door No: 416783/A2, Kanichai Building, Padma Jn, Jew Street, Kochi - 35 Ernakulam.
FINAL ORDER
DB.Binu, President
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant, along with an electrician, visited the Opposite Party on 19.05.2018 to purchase electrical fittings for the complainant's house. They placed an order for 9 types of electrical items, and one of them, the E 1933-2 Led Wall Lamp, was supposed to be brought from the go-down. The complainant waited as instructed.
After some time, the Opposite Party handed over the items in two kits, but the complainant noticed that the E 1933-2 Led Wall Lamp (No:3) was missing when they checked the materials at home. They returned to the establishment the next day with the bill to report the missing item, but the person responsible for handing over the goods denied the claim and refused to check the CCTV footage or verify the stock register balance.
The complainant, who is a retired Sub-Inspector, felt deeply disheartened and humiliated by the negative and unethical behavior of the Opposite Party. They are seeking fair compensation for the loss incurred in connection with the O.P. and the cost of the electrical fittings.
2) Notice
A notice was sent to the opposite party via the postal department, but they failed to respond with their version. Consequently, the opposite party is set ex-parte.
3) Evidence
The complainant did not submit a proof affidavit, but he presented one document to the commission.
Copy of the invoice dated 19.05.2018
4) The main points to be analyzed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iii) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
After filing the complaint, the complainant did not attend any hearings before the commission nor submit an affidavit of evidence. The commission issued a notice to the complainant on 16-12-21, asking them to file an ex-party proof affidavit. However, the complainant appeared before the commission on 13.04.22 and requested more time to file the affidavit. The commission granted this request and adjourned the case as a last chance for the complainant to provide evidence.
Despite the opportunity given, the complainant neither filed the proof affidavit nor appeared before the commission thereafter. The complainant has been continuously absent and has not presented any evidence to date. Several chances were provided to the complainant to proceed with the case, but they have shown no interest in doing so.
Due to the complainant's persistent absence and lack of evidence, the commission has no choice but to dispose of the complaint based on the available evidence. Consequently, the commission proceeds with the disposal of the complaint on its merits.
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 parties.
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.”
The legal maxim "vigilantibus non dormientibus jura subveniunt" (The law assists those who are vigilant, not those who sleep.) is highly significant in consumer cases. It stresses the importance of being proactive and diligent in protecting one's rights and interests in legal matters. By actively safeguarding their rights, individuals are more likely to receive legal support compared to those who neglect their responsibilities. In consumer cases, this maxim emphasizes the need for consumers to be vigilant and attentive when facing potential legal issues, ensuring they protect their rights as buyers. However, it is essential to mention that in this specific case, the complainant did not submit an affidavit of evidence after filing the complaint.
After careful consideration, the above issues {(i) to iii)} have been found to be unfavorable to the complainant. The case presented by the complainant is considered to be without merit. 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 the 31st day of July 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/by Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 247/2018
Order Date: 31/07/2023
