DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 23rd day of December 2022
Filed on: 01/01/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 6/2020
COMPLAINANT
A.B. Ambarishmumar, S/o. A.K. Bahuleyan, Aramuriparambil House, Near Surya Gas Godown, Vaduthala, Kanayannoor Taluk, Ernakulam
(Rep. by Adv. Saraswathi P., SR Legal, 4F, Metro Plaza, Market Road, Ernakulam – 18)
VS
OPPOSITE PARTY
L&T Finance Ltd., Ventura, 2nd Floor, Anjumana, NH47 Bypass, Kochi 682024
(Rep. by Adv. T. Rajesh, 4F, Metro Plaza, Ernakulam)
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:
This 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 is an ex-service personnel. In December 2014, for the purpose of the company Kritika Bayonet Solutions, which the complainant was running, the complainant purchased a Tata vehicle called ACE (Tata ACE Zip) for Rs.2,58,000/-. Out of this, Rs.2,07,000/- was taken as a loan from the above finance company. Then he spent Rs.40,000/- for building the body of the vehicle and got permission for it by paying Rs.3,000/- (RTO cost). In 2017, due to various reasons, the company had to be shut down and the monthly payment of Rs.5,033/- was not possible. The complainant and the opposite party agreed to surrender the vehicle to the opposite party with a condition suggested by the opposite party due to the default of 4 instalments. The complainant agreed to the condition on bonafide believing that at least the loan amount shall be closed. On the 2nd day at 8 am, two people came and informed the complainant that they have come to collect the vehicle from the opposite party. As the complainant did not have time to prepare an agreement, the complainant handed over the vehicle after obtaining the signature of the person who came to take the vehicle on an agreement made in the complainant’s handwriting on the letterhead of the complainant’s company. The complainant received a notice in January 2016 from the opposite party in which it was stated that the complainant has to pay Rs.1,50,150/- to the opposite party. The complainant contacted the opposite party over phone and talked about the notice and the agreement made to return the vehicle. The opposite party did not share with the complainant anything about the transfer of the vehicle to a third party through L & T or the amount. All such matters were confirmed by calling the number given in the above notice. Later in November 2019, the complainant received a notice for Rs.1,17,033/- from the opposite party, and the complainant contacted the office of the opposite party regarding the same and the complainant’s efforts to settle the matter amicably failed.
The complainant had approached the commission seeking an order directing the opposite party to restrain the opposite party from taking any action against the complainant in relation to this loan and to discharge the complainant from all legal proceedings.
2) Notice
Notice was issued from the Commission to the opposite party. The opposite party received the notice but did not appear before the Commission and not filed a version. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant had filed 7 documents that were marked as Exhibits-A-1- to A-7.
Exhibit A-1: Copy of the driving license.
Exhibit A-2-Proof of the vehicle purchase.
Exhibit A-3-Records of repayment.
Exhibit A-4-Document issued when the vehicle was handed over to the opposite party.
Exhibit A-5-Copy of notice dated 20 - 01 – 2018.
Exhibit A-6-Copy of notice dated 14 - 11 – 2019.
Exhibit A-7-Copy of notice dated 18 - 12 – 2019.
6) 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 party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
7) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, 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 is an ex-service personnel. In December 2014, for the purpose of the company Kritika Bayonet Solutions, which the complainant was running, the complainant purchased a Tata vehicle called ACE (Tata ACE Zip) for Rs.2,58,000/-. Out of this, Rs.2,07,000/- was taken as a loan from the above finance company. Then he spent Rs.40,000/- for the building body of the vehicle and got permission for it by paying Rs.3,000/- (RTO cost). In 2017, due to various reasons, the company the complainant had to be shut down and the monthly payment of Rs.5,033/- was not possible.
We have also noticed that a notice was issued from the Commission to the opposite party but did not file their version. Hence the opposite party set ex-parte. The complainant has filed the Proof Affidavit and 7 documents which are marked as Exbt.A-1 to A-7.
Exbt. A1- Copy of Driving Licence
Exbt. A2- Copy of Tax Invoice dated 31/12/2014
Exbt. A3- Copy of Statement of Account
Exbt. A4- Copy of Receipt of handing over of vehicle for liquidation of its loan
Exbt. A5- Copy of letter received from the opposite party
Exbt. A6- Copy of notice dated 14/11/2019
Exbt. A7- Copy of Lawyer notice dated 18/12/2019
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5759 OF 2009 SGS INDIA LTD. APPELLANT(S) V. DOLPHIN INTERNATIONAL LTD. RESPONDENT(S)
“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 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 of 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.”
Except for the averments, the complainant had failed to prove his case by adducing sufficient documents to prove that deficiency of service is occurred from the side of the opposite parties towards the complainant. There is no merit in the case and the case of the complainant is unbelievable and is liable to be dismissed and accordingly dismissed.
Pronounced in the open Commission this the 23rd day of December 2022. Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exbt. A1- Copy of Driving Licence
Exbt. A2- Copy of Tax Invoice dated 31/12/2014
Exbt. A3- Copy of Statement of Account
Exbt. A4- Copy of Receipt of handing over of vehicle for liquidation of its loan
Exbt. A5- Copy of letter received from the opposite party
Exbt. A6- Copy of notice dated 14/11/2019
Exbt. A7- Copy of Lawyer notice dated 18/12/2019
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 6/2020
Order Date: 23/12/2022 stant Registrar
