DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of December, 2023
Filed on: 09/08/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 329/2018
COMPLAINANT
Jilju Gladwin K.J., S/o Jose Kalathil, Kalathil House, Door No: 68/1555, K K Padmanabhan Road, Ernakulam North PO, Kochi 682018
VS
The opposite party
Kamlesh Manuja, Senior Vice President, Edelweiss Tokio Life, 3rd Floor, Tower 3, Wing B, Kohinoor City Mall, Kohinoor City, Kirol Road, Kurla (W), Mumbai 400 070.
(Rep. by Adv. P. Fazil & Jithin Paul Varghese, M/s. Lawyers United, 1st Floor, No. 68/1697, St. Benedict Road, Ernakulam 682018)
F I N A LO R D E R
D.B.Binu, President:
- A brief statement of facts of this complaint is as stated below:
The complaint has been filed under Section 12 (1) of the Consumer Protection Act, 1986. The complainant involves a complex situation regarding an online health insurance policy. The complainant applied for the policy on April 29, 2018, and paid Rs 19,662 using an HDFC Bank credit card on April 30, 2018. However, as of the date of the complaint, the policy had not been issued, nor had the payment been refunded.
The complainant made numerous phone calls to the customer care team without receiving a satisfactory response. They then started emailing from June 29, only to receive standard replies with no concrete action. The unresolved situation led to financial strain for the complainant, as they had to pay a 36% interest per month on their credit card for all purchases, and were unable to settle the credit card bill due to the blocked funds. Furthermore, the inability to secure the insurance policy or refund affected the complainant's ability to purchase insurance from another provider, leading to a risk gap.
In light of the financial burden, mental stress, and time lost, the complainant is seeking compensation, detailed as follows:
- Refund of the original amount paid: Rs 19,622
- Interest paid to the credit card company at 36%: Rs 1,766
- Interest on credit card purchases: Rs 5,000
- Compensation for mental tension, agony, and harassment: Rs 1,50,000
- Risk coverage for the uninsured period: Rs 3,00,000
The total compensation claimed is Rs 4,76,388.
2). Notice
Notices were issued from the Commission to the opposite party. The opposite party received the notice and filed their version.
3)THE VERSION OF THE OPPOSITE PARTY
The complaint is frivolous and misconceived, based on misleading facts, and should be dismissed outright. The policy was not issued due to a defective application by the complainant. However, the amount of Rs. 19,662 was refunded, with the transaction recorded and supported by a document presented to the commission.
The complainant's repeated absence and apparent lack of interest in continuing the case, as the main relief sought, the refund, has been provided. They argue that the complainant has not suffered any loss or damages due to a deficiency in service or unfair trade practice on their part. The response emphasizes that compensation should be proportional to the actual loss and injury suffered and that consumer commissions should not award excessive compensation that unjustly enriches the consumer. The commission to dismiss the complaint and considers the imposition of exemplary costs as a form of justice.
4) Evidence
The complainant submitted one document without filing a proof affidavit.
- A copy of the H.D.F.C Credit Card statement.
The opposite party submitted one document and filed a proof affidavit.
1.A copy of transaction dated 29.09.2018
A true copy of the statement for H.D.F.C credit Card.
5) 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?
6) The issues mentioned above are considered together and are answered as follows:
The complainant's attendance has been inconsistent since March 10, 2023. He was only present on April 27, 2022, and October 25, 2022. However, since March 10, 2023, the complainant has remained continuously absent. On 13/07/2022, the Commission issued a notice to the complainant, requesting their appearance and presentation of evidence. Despite the Commission's office attempting to contact the complainant by phone, they have failed to attend subsequent case hearings before the Commission. As of now, the complainant has not made any appearances.
Despite being given the opportunity, the complainant neither filed a proof affidavit nor appeared before the Commission thereafter. Their continuous absence and failure to present evidence persist to this day. Despite numerous opportunities provided to the complainant to proceed with the case, they have displayed no interest in doing so.
Due to the complainant's persistent absence and the absence of evidence, the Commission has no alternative but to resolve the complaint based on the available evidence. Consequently, the Commission proceeds with the resolution of the complaint.
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.
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.”
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 non-attendance of hearings before the commission or submit an affidavit of evidence after filing the complaint.
We have decided in favour of the opposite party on Issues I to III mentioned above. After careful consideration, 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 28th day of December, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
kp/
Despatch date:
By hand:
by post:
C.C. No. 329/2018
Order date: 30/12/2023
