DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 16th day of February, 2024.
Filed on: 01/10/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
CC NO 349/2021
COMPLAINANT
S.Ajayakumar, S/o. Sankrakutty marar, Sredha Publications, Ajaya Bhavan 30/251, Eloor South, Udyogamandal 683501 Ernakulam.
Vs
OPPOSITE PARTIES
- Saradhaz Muhammad, Ceo& Managing Director, Kovai Soft Technologies (P) Ltd. and Spaaz Infotech (p) Ltd. 657, 3rd Floor, Tri Star Towers, Avinashi Road, CBE-37 Tamil Nadu
- Pallavi Dharmaraj Director & Business Development Manager, Kovai Soft Technologies (P) Ltd. and Spaaz Infotech (p) Ltd. 657, 3rd Floor, Tri Star Towers, Avinashi Road, CBE-37 Tamil Nadu
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 35 of the Consumer Protection Act, 2019. The complainant, a publisher of a magazine named Janashraddha, ventured into an online beauty parlour booking application during the coronavirus outbreak in 2019. An ad on India Mart led to collaboration with Sardas Muhammad of Kovai Soft Technologies. Despite promises of a fully functional app with one-year maintenance for Rs. 30,000, the development process was fraught with delays, miscommunications, and unfulfilled commitments. Payments totalling Rs. 44,400 exceeded the quoted amount, yet the app was released on the Play Store with numerous defects, tarnishing the organization's reputation. Additional marketing efforts cost Rs. 2,70,000, and employment expenses for marketing staff added Rs. 60,000. Legal action was sought after the developers failed to rectify the app's issues, with a demand for Rs. 4,00,000 in compensation for time, stress, and financial losses, or Rs. 5,00,000 if the app could not be properly delivered. The case highlights issues of trust and accountability in online business engagements.
2) Notice
The Commission sent notices to the opposite parties. However, they did not submit their versions, and as a result, the case was set to proceed ex parte.
3) . Evidence
The complainant did not file a proof affidavit but produced 15 documents along with the complaint before the commission.
1: Response to India Mart Advertisement
2: Kovai Soft Quotation
3: Proof of Initial Payment of Rs. 10,000
4: Evidence of Complaint Filed on Google
5: Proof of Rs. 10,000 Payment to Pallavi's Account.
6: Proof of Additional Rs. 5,000 Payment to Pallavi's Account
7: Proof of Further Rs. 9,000 Payment to Pallavi
8: Proof of Rs. 2,500 Payment to Pallavi
9: Proof of Rs. 1,900 Payment to Pallavi
10: Proof of Rs. 6,000 Payment to Sardas Muhammad via Google
11: Notice Sent Before Legal Action
12: Receipt of Complaint Filed with the Cyber Cell
13: Last WhatsApp Chat with Both Parties.
14: Details of Publication on Google Play Store
15: CD.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint 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?
5) The issues mentioned above are considered together and answered as follows:
The complainant did not submit a proof affidavit and did not adhere to the required procedures outlined in the Consumer Protection Act, 2019. Despite being given several chances, the complainant consistently neglected to provide a proof affidavit.
A notice sent to the complainant on May 5, 2023, was returned unclaimed. The complainant subsequently failed to present their evidence before the commission and was notably absent on the case's initial date, underscoring a pattern of non-attendance. Following this, the commission directed the complainant to appear and submit a proof affidavit. However, due to the complainant's ongoing absence and failure to provide evidence, the commission is left with no option but to move forward with the complaint's resolution based on the evidence at hand. Despite multiple opportunities to comply, the complainant has neither submitted the required affidavit nor appeared before the commission, indicating a disinterest in pursuing the case.
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 Commission proceeded to analyze these issues in detail:
In a series 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. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite party. Therefore, the complaint is dismissed, and no relief is granted to the complainant.
We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that 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 on this the 16th day of February, 2024.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 93/2024
Order Date: 13/02/2024
