DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 29th day of July 2023
Filed on: 20.02.2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C No.84/2020
COMPLAINANT
Nishad E.G., S/o.Gopinath, Elavally House, IX Ward, H.No.376.
Vs.
OPPOSITE PARTY
S.R.Enterprises, (Sunrise Ventures), Elamakkara, Ernakulam, Pin-682 026
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 brief facts, as averred in the complaint, are that the complainant, who works in interior decoration carpentry, contacted the opposite party to buy a laminated sheet (mica sheet). However, the opposite party did not send the requested serial code, resulting in the complainant's customer rejecting the sheet. The complainant asked the opposite party to either replace the sheet with the requested one or refund the money, but they refused. The delay in resolving the issue led to the customer speaking negatively about the complainant. Consequently, the complainant filed a complaint with the commission seeking action against the opposite party.
2) Notice
A notice was sent to the opposite party via the postal department, but they failed to respond with their version. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant did not submit a proof affidavit, but he presented four documents to the commission.
4) 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?
The commission has issued the notice to the complainant to appear and adduce evidence if any. The Notice was sent to the complainant on 04-07 -22 and is seen returned with the endorsement “No full address “as per the proof of delivery of the Postal Department. The commission sent a notice to the complainant at the address provided in the complaint. However, the complainant claims not to have received the notice and returned it. The complainant is continuously absent. The complainant has not turned up so far and no evidence adduced to date. So many chances were given to the complainant. The complainant is not interested to proceed further.
After filing the complaint, the complainant did not attend any hearings before the commission nor submit an affidavit of evidence. In light of this, the commission is left with no choice but to dispose of the complaint based on the evidence available to them. Consequently, the commission proceeds with the disposal of the complaint on merit.
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 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 attend any hearings before the commission or submit an affidavit of evidence after filing the complaint.
After careful consideration, the above issues have been found to be unfavourable to the complainant. The case presented by the complainant are considered to be without merit. 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 the 29th day of July 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
