DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 20th day of July, 2023
Filed on: 05/06/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C C NO 132/2020
Between
COMPLAINANT
V.V.Pratheeksh Kurup, Advocate, X/301, AJRA-1, Ayirettil Temple Road,
Eroor South P.O, Tripunithura-682306.
(Rep. by Adv. Jiji Nikhil, HB 48, Panampilly Nagar, Ernakulam, Pin 682036)
VS
THE OPPOSITE PARTY
Proprietor, Power Tec Electrical Works, Opposite Girl's High School, Tripunithura-682301.
(Rep. by Adv. Biju A.V., Associated Lawyers, Appu Soudam, Valanjambalam, Ernakulam 682016)
FINAL ORDER
V. Ramachandran, Member:
- A brief statement of facts of this complaint is as stated below:
The complaint is filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant, a lawyer practicing in Kerala, entrusted a water pumping motor to the opposite party, who runs a business servicing motor pump. The complainant provided the motor for servicing on March 16, 2019, and received a receipt from the opposite party. However, despite numerous visits and requests from the complainant starting in early April 2019, the opposite party continuously delayed returning the repaired motor, citing heavy workload. The opposite party had also promised to notify the complainant once the motor was repaired but never did so. Additionally, the opposite party and their staff displayed harsh and abusive behavior towards the complainant whenever asked about the motor. Locals informed the complainant that the opposite party had a practice of selling repaired motors to other individuals, resulting in unlawful gains for themselves and monetary loss for the complainant. The motor in question is valued at over Rs. 4000. These actions by the opposite party amount to clear deficiencies in service, unfair trade practices, criminal breach of trust, and cheating. The complainant seeks the following relief: a) Return of the repaired pump/motor or payment of Rs. 4000, b) Compensation of Rs. 10,000.
2. Notice
Notice was issued from the Commission to the opposite party. The opposite party received the notice and filed their version.
- THE VERSION OF OPPOSITE PARTY
On March 16, 2019, the complainant approached the opposite party, who runs an equipment repairing establishment in Tripunithura, to repair an inoperable Electrical pump set. The opposite party inspected the pump and informed the complainant that the repair would cost Rs. 1400, with an advance payment of Rs. 500 required for purchasing necessary items. However, the complainant expressed inability to pay the advance at that time and left the pump set with the opposite party, expecting it to be returned the next day after the advance payment was made. A receipt was issued for the transaction.
Since the complainant did not retrieve the pump set or pay the advance, the opposite party found it difficult to store the equipment in their small establishment and kept the electrical motor in their go down.
Around a year later, in March 2020, when the government announced a lockdown due to the COVID-19 pandemic, the complainant requested the return of the pump set. The opposite party explained that due to the lockdown restrictions, they were unable to leave their house or open the establishment, resulting in the inability to return the pump set. The complainant was informed about this.
The opposite party claims that they did not receive any payment from the complainant, either as an advance or for any other reason. They state that the pump set is ready for repair upon receiving an advance payment, or if the complainant prefers, the damaged pump set can be returned. However, the complainant refused to listen and allegedly threatened the opposite party.
Top of Form
4) Evidence
The complainant had produced one document that were marked as Exhibits A-1.
Exhibit A1: Copy of the receipt from the opposite party.
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:
According to the opposite party, in March 2020, during the COVID-19 lockdown, the complainant requested the return of the pump set. The opposite party explained the difficulties they faced due to the lockdown restrictions, which prevented them from returning the pump set. They claim that no payment was received from the complainant, and the pump set is ready for repair upon receiving the advance payment or can be returned if the complainant prefers.
Upon considering the issues mentioned above, it is necessary to further evaluate the evidence presented in this case. The complainant has provided a copy of the receipt from the opposite party as Exhibit A1.
In order to determine the maintainability of the complaint, the relevant provisions of the Consumer Protection Act, 1986 need to be considered. Section 12 (1) of the Act provides that a complaint can be filed by a consumer when there is a deficiency in service or unfair trade practice. The complainant has alleged deficiencies in service, such as the delay in returning the repaired motor, failure to notify the complainant, and abusive behaviour from the opposite party. These allegations, if proven, may establish a valid cause of action under the Act.
Regarding the question of whether there is any deficiency in service or unfair trade practice, it is necessary to evaluate the evidence presented by both parties.
The complainant has failed to provide any substantial evidence, either in the form of oral testimony or documentary proof, to support their allegations of deficiency in service or unfair trade practice. The complainant has relied solely on mere assertions made in the complaint without backing them up with tangible evidence.
The Honourable Supreme Court of India in Sgs India Ltd. Vs Dolphin International Ltd. on 6 October 2021 (Civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009) 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.”
In legal proceedings, the burden of proof is with the complainant, who is responsible for presenting sufficient evidence to establish his case. In this situation, since the complainant has not provided any compelling evidence to substantiate their claims, it can be concluded that they have not met their burden of proof.
The complainant did not provide any evidence in support of his claim under Section 14 of the Consumer Protection Act of 1986. Hence the following orders are issued.
O R D E R
The opposite party is directed to return the electric pump to the complainant within 7 days of receiving the order. No other relief.
Pronounced in the Open Commission on this the 20th day of July, 2023.
D.B.Binu, President
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s evidence:
Exbt. A1: Copy of the receipt from the opposite party
Opposite parties’ evidence
Nil.
Despatch date:
By hand: By post
kp/
CC No.132/2020
Order Date: 20/07/2023
