DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 15th day of September 2023.
Filed on: 05/05/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 236/ 2022
COMPLAINANT
Santosh Ramaswamy T. K. S/o T.R. Krishnan, "Shree VidhyaTheerthaNilayam", Puneth Nadakkavu, Round South, Thrissur.
(By Adv.R.Sreedhar, 2nd Floor, Mehreen Complex, Pulleppady Junction, Chittoor Road, Cochin-682 035)
Vs
OPPOSITE PARTIES
1. Justdial, First Floor, Kanthi Arcade, Kottankavu-Arakkakadavu Road, Vennala, Kochi, represented by its Manager, PIN-682 028.
2. The Manager, Justdial, Palm Court Bldg M, 501/B, 5th Floor, New Link Road, Beside Goregaon Sports Complex, Malad (W), Mumbai-400 064.
3. The Manager, Justdial, 25 AGT Business Park, 3rd floor, Avinashi Road, Coimbatore, Pin-641 014.
F I N A L O R D E R
D.B. 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. In the complaint, it is stated that the complainant was approached by representatives of Just Dial, a business advertising platform. They offered the complainant a listing on their platform, promising prominent advertisement placement through paid packages. After telephonic discussions, a package was offered to the complainant where their business's name would be listed among the top 5 locations of their choice, with payment based on selected keywords and locations.
The complainant received a proposal detailing keywords and locations, and upon requesting additional keywords, Just Dial representatives confirmed no extra cost. Later, Just Dial informed the complainant that the offered package would be withdrawn soon, requiring a higher payment within 48 hours. A new proposal was sent, but not all keywords were included. After contacting Just Dial, assurances were made to include the keywords upon confirmation.
However, after paying for the package, the complainant discovered their advertisement wasn't in the top 5 search results, and some keywords were missing. Complaints to Just Dial representatives yielded unfulfilled promises and no resolution. Legal notices were sent, and after prolonged discussions, a settlement was offered requiring almost double the initial payment.
The complainant seeks a refund of excess charges, restoration of the advertised position, fulfilment of promised advertising terms, or a full refund. They also request compensation for mental distress, service deficiencies, and unfair trade practices. Additionally, they ask for litigation cost reimbursement.
In summary, the complainant alleges that Just Dial failed to fulfil the promised advertising services, engaged in unfair trade practices, and caused them mental distress. They are seeking refunds, proper service fulfilment, and compensation.
2). Notices
The Commission sent notices to the opposite parties, which they received; however, they did not submit their responses. As a result, the opposite parties are set ex-parte.
3) . Evidence
The complainant submitted five documents before the Commission but did not provide a proof affidavit.
1. True copy of the mail sent by Ms. Priyanka dated 12.12.2020 to the complainant confirming to add the keywords missing in the initial proposal.
2. True copy of the receipt of payment made by the complainant to the 3rd opposite party bearing receipt No. KL1220RC80874082 dated 13.12.2020.
3. True copy of the receipt of payment made by the complainant to the 3rd opposite party bearing receipt No. KL1220RC80874084 dated 13.12.2020.
4. True copy of the lawyer notice dated 20.02.2021 caused by the complainant.
5. True copy of the Acknowledgment card dated 01.03.2021 of the receipt of the lawyer notice accepted by the opposite party.
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 parties to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iii) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
The complainant claims that Just Dial didn't deliver the agreed advertising services, employ unfair trade practices, and cause emotional distress. They're requesting refunds, proper service completion, and compensation.
The notice was sent to the complainant however, the complainant did not appear before the Commission, despite having filed 5 documents with the complaint. No proof affidavit has been filed by the complainant to date. The notice was issued on 30/03/2023 and served on 03/04/2023, but neither the complainant nor their counsel attended the proceedings. This was communicated to the complainant's counsel on subsequent posting dates, including 18/08/23, but the complainant was still absent and no evidence has been presented. As a result, the complainant's evidence is considered closed, and the case has been scheduled for further orders based on the merits.
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 complainant's failure to submit a proof affidavit is significant, as it places the burden of proof squarely upon them to substantiate the claims laid out in the complaint. Without a duly filed proof affidavit, the complainant has not fulfilled this essential requirement. The Commission is therefore left with no option but to consider the case based solely on the evidence that has been presented.
Upon careful examination of the available evidence, including the documents marked as Exhibits A-1 to A-5, this Commission finds that the complainant has not successfully demonstrated a prima facie case of deficiency in service or unfair trade practices on the part of the opposite parties. The complainant's contentions and allegations remain unsubstantiated due to the lack of a proof affidavit and additional supporting evidence.
Consequently, in light of the absence of sufficient evidence to establish a case of deficiency in service or unfair trade practices, the Commission has no choice but to dispose of the complaint based on the available evidence.
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.
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 15th day of September 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
1. True copy of the mail sent by Ms. Priyanka dated 12.12.2020 to the complainant confirming to add the keywords missing in the initial proposal.
2. True copy of the receipt of payment made by the complainant to the 3rd opposite party bearing receipt No. KL1220RC80874082 dated 13.12.2020.
3. True copy of the receipt of payment made by the complainant to the 3rd opposite party bearing receipt No. KL1220RC80874084 dated 13.12.2020.
4. True copy of the lawyer notice dated 20.02.2021 caused by the complainant.
5. True copy of the Acknowledgment card dated 01.03.2021 of the receipt of the lawyer notice accepted by the opposite party.
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