DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 22nd day of November 2023
Filed on: 10/03/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO 156/2018
COMPLAINANT
Vinod, S/o. Veerabhadran, Adukurussi, Ezhupantala Karayil, Ottapalam Taluk, Palakkad, Now residing at Githalayam 179, Near Anthimahakalan Temple , Eroor.
(Rep. by Adv. P.V. Anil Kumar, Guru Law Associates, Opp. EMC, Near YMCA, Palarivattom P.O., Kochi 682025)
OPPOSITE PARTYIES
- Rajesh, S/o Eppen, Puzhikkattil House, Vyttila, Elamkulam, Cochin-682020.
- The Proprietor, Mahindra First Choice, Edappally
F I N A L O R D E R
D.B.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 complainant, who works in an IT shop in Tripunithura, approached a second opposite-party firm to buy a second-hand car for work purposes. The first opposite party, who resides in Vyttila, agreed to sell a 2009 model car to the complainant through an intermediary named Mithun. They entered into a vehicle sale agreement, and the complainant paid Rs. 2,50,000 and agreed to pay monthly instalments of Rs.10,000.
However, on the day the complainant drove the car home, it suddenly stopped working. The complainant contacted the first opposite party, who initially paid for car repairs at a Hyundai service center. Unfortunately, the car had another mechanical breakdown. The complainant then asked for a refund or repairs, but the opposite parties did not cooperate, and 45 days passed without any resolution.
The complainant believes that the opposite parties intentionally sold a faulty car and violated the provisions of the Consumer Protection Act. The complainant filed a complaint with the Police Hill Palace on 15-01-2018. The first opposite party agreed in writing to take back the car and refund the complainant's money.
The complainant demands a refund of Rs. 2,60,000 due to the losses incurred due to the actions of the opposite parties. They argue that the opposite parties should take back the car and return the money. The complainant requests an order for the opposite party to pay them 18% of the Rs. 2,60,000.
2). Notice
In this case, the Commission issued notices to both the first opposite party and the second opposite party. The second opposite party responded by filing their version. However, the notice sent to the first opposite party was returned with an endorsement stating that it was "unclaimed." As a result of the first opposite party's failure to claim or respond to the notice, the first opposite party is set exparte.
3). THE VERSIONS OF THE SECOND OPPOSITE PARTY
The second opposite party in this case claims that they are not involved in the matter and should not be a party to the complaint. They argue that there is no contract or interaction between them and the complainant. They assert that the complaint against them is baseless and lacks any legitimate reason for their inclusion. According to their records, they have no knowledge of the alleged vehicle transaction (Registration No. KL-14 J-2587) mentioned in the complaint. The second opposite party states that the complainant either made a mistake in naming them as a party or deliberately included them to gain an unfair advantage.
The second opposite party denies all the allegations made by the complainant. They state that they have no information about the complainant's personal details or any attempt by the complainant to purchase a used car from them. The claims that the second opposite party assured the complainant about the vehicle's condition and expenses for mechanical issues, as well as receiving Rs. 2,50,000, are refuted as false and baseless. The assertion that the complainant visited the second opposite party's showroom without a response is also denied.
Additionally, the second opposite party rejects the accusations of cheating and causing financial harm to the complainant, as well as the claim that the first opposite party agreed to repay the entire amount and take back the vehicle. They also dispute the characterization of themselves as car brokers who received commissions and the alleged loss of Rs. 2,60,000 by the complainant. They argue that the complaint has no substance or merit, and they request the commission to dismiss the complaint against them.
4) Evidence
The complainant did not submit a proof affidavit; they only filed three documents.
5) The main points to be analyzed 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:
In the present case, the complainant has taken legal action against the opposite parties to secure a refund for the price of the car. Despite the complainant's request for either a refund or car repairs, the opposite parties did not cooperate, and a significant period of 45 days elapsed without any resolution or efforts made to address the issue.
The commission issued a notice on 24-04-23, requesting the complainant to provide the correct address of the first opposite party. However, the notice sent to the first opposite party was returned with an endorsement stating that it was "unclaimed." As a consequence of the first opposite party's failure to claim or respond to the notice, they were declared as "ex parte" on 04-03-2023.
However, the complainant neither attended any hearings nor submitted an affidavit of evidence. Despite repeated opportunities, the complainant failed to file the proof affidavit or participate in any further commission proceedings. There has been a consistent absence from the complainant's side, and no evidence has been presented up to the present date. Despite multiple chances given to advance the case, the complainant has demonstrated a lack of interest in pursuing the matter. 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 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.
The second opposite party challenges the maintainability of the complaint and questions the complainant's locus standi. They contend that the complainant never engaged in any service or transaction with them, and the basis for the complaint lacks merit. The second opposite party further asserts that the complainant has not participated in commission proceedings and has not provided any affidavit of evidence.
The complainant bears the burden of proving their allegations of deficiencies in service and losses. The complainant's failure to attend hearings, submit evidence, or provide an affidavit of evidence undermines the credibility of their claims. As per established legal principles, mere allegations are insufficient to prove negligence or deficiency in service. In the absence of substantial evidence, the complainant's claims lack the necessary foundation to support their case.
Upon thorough examination of the evidence, legal arguments, and established legal principles, this Commission has arrived at the conclusion that the complainant's case is deficient in merit, credibility, and substantial evidence necessary to establish a valid cause of action. The complainant's inability to satisfy the burden of proof and their passive involvement in the proceedings further undermine their stance. Consequently, this Commission is compelled to dismiss the complainant's filed complaint. The aforementioned issues have been found to be unfavorable towards the complainant. The presented case by the complainant lacks merit. As a consequence, 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 22nd day of November, 2023.
Sd/-
V. Ramachandran, Member
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 156/2022
Order Date: 22/11/2023
