DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of June, 2024
Filed on: 13/07/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 343/2022
COMPLAINANT
Abdul Rishad T.V., S/o. Moideenkutty M.A., Kunnakada House, Pappinissery West, Kannur District 670561. Now residing at 7C, SFS Silicon Drive, Seaport-Airport Road, Kakkanad, Ernakulam 682030.
(Rep. by Adv. Anuroop, Room No. 539, Golden Jubilee Chamber Complex, Near High Court of Kerala, Ernakulam 682031)
Vs.
OPPOSITE PARTY
Shajahan Abdul Azeez, Manager & Proprietor, Popular Quality Plywoods & Glasses, EBCO, Seaport Airport Road, New BM College, Kakkanad, Ernakulam 682030
F I N A L O R D E R
Sreevidhia T.N., Member:
- A brief statement of facts of this complaint is as stated below:
The complainant had approached the opposite party’s shop at Kakkanad for doing the interior works of kitchen cupboards and bedroom wardrobe of his new flat. After vising the flat, the opposite party had agreed to do the work and had prepared an estimate of Rs.90,000/- on 23/05/2022. The opposite party had promised to complete the work by 04/06/2022. The complainant and his family members had decided to keep the housewarming on 05/06/2022 and the date of housewarming was well informed to the opposite party.
The opposite party had promised to the complainant that he would complete the work with good quality products and handover well before the time. The complainant had paid an advance amount of Rs.8,000/- to the opposite party for the work on 23/05/2022.
Since the work was not started, the complainant had visited the opposite party’s office on 25/05/2022 to enquire about the work. The opposite party informed to the complainant that he had required an amount of Rs.10,000/- for purchasing the materials. The complainant had transferred the requested amount. Similarly on 28/05/2022, 31/05/2022, 02/06/2022, 04/06/2022 opposite party demanded Rs.8,500/-, Rs.10,000/-, Rs.10,000/-, Rs.10,000/-, Rs.18,000/- and Rs.10,000/- respectively for purchasing the materials. As per the request of the opposite party, the complainant transferred the total amount of Rs.94,000/- immediately to the account of the opposite party through mobile transaction and also paid him cash the amount requested by the opposite party.
The opposite party had not started the work. On enquiry with opposite party, the opposite party had directed the complainant to purchase few other materials from another workshop and had instructed the complainant to make payment for the same. Even after purchasing all the materials the opposite party had not completed the work. The irresponsible act of the opposite party had caused great loss to the complainant totalling to around Rs.2 lakh and damages besides mental tension and inconvenience. Hence the complainant approached this Commission seeking orders directing the opposite party to refund to the complainant a sum of Rs.94,000/- with 12% interest till payment is made, along with a compensation of Rs.2,00,000/- towards the mental agony and other damages caused by the opposite party. The complainant has also sought Rs.10,000/- as cost of proceedings from the opposite party.
- Notice :
Notice was issued to the opposite party from this Commission on 22/08/2022. The notice sent to the opposite party seen served on 03/09/2022. Opposite party not appeared and filed their version. Hence opposite party was set as ex-parte and the case posted for evidence of the complainant.
The complainant did not file a proof affidavit but submitted 4 documents along with the complaint.
Document No. 1: Photocopy of the mobile transaction details of the complainant (Series 1 to 8)
Document No. 2: True copy of the lawyer notice dated 23/06/2022
Document No.3: True copy of postal receipt
Document No. 4: Registered Acknowledgment card sent to the opposite party by Adv. Anuroop M.
- The issues came up for consideration in this case are as follows.
- Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
- If so, reliefs and costs?
For the sake of convenience we have considered issues No. (1) and (2) together.
Upon review of the records it is noted that the complainant did not file a proof affidavit eventhough 4 documents were submitted along with the complaint. These documents were not marked as evidence since the complainant has not filed a proof affidavit to support the claim of the complainant and to prove his case. The complainant failed to appear before the Commission or to present any evidence on his behalf. The hearing to present the complainant’s evidence was initially scheduled on 30/01/2024 and then scheduled to 27/05/2024 due to the absence of the complainant.
On 19/12/2023 the complainant was informed over the phone number of the learned counsel for the complainant to present before the Commission to adduce evidence. The complainant was absent on the subsequent date of hearing. The Commission again issued notice directly to the complainant on 18/04/2024 to appear and to present evidence. The notice issued to the complainant on 18/04/2024 returned with an endorsement ‘unclaimed’. Due to the lack of interest to attend the hearings, no further evidence has been provided by the complainant. In view of the complainant’s inconsistent attendance and failure to submit the necessary evidence, the Commission has no other alternative but to proceed with a judgment based on the evidence currently available. The complainant’s repeated absence and failure to submit a proof affidavit or to appear at subsequent hearing demonstrate a lack of interest in pursuing the case.
This complaint is filed as per Section 35 of the Consumer Protection Act, 2019. As per Section 38 (a) every complainant shall be heard by the District Commission on the base of affidavit and documentary evidence placed on record.
In a 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 insufficiency 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 it is the complainant who had approached the Commission therefore, without any proof of deficiency, the opposite party can’t be held responsible for deficiency in service.
In conclusion, the Commission finds that the complainant has failed to provide sufficient evidence to substantiate his claims of deficiency in service or negligence of the opposite party. Therefore the complaint is dismissed. No cost.
Resultantly, we find that the complaint is liable to be dismissed for want of evidence regarding deficiency in service on the part of the opposite party.
Pronounced in the Open Commission on this the 28th day of June, 2024.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
V.Ramachandran, Member
Forwarded/By Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 343/2022
Order Date: 28/06/2024
