DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 25th day of August 2023.
Filed on: 22.01.2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 59/2022
COMPLAINANT
Laijy K.K., D/o.K.K.Keshavan, Abees House Line No.24, Vytilla, Janatha Road, Vyttilla P.O., Kochi-682 019
Vs
OPPOSITE PARTY
Shalimar Tiles and Sanitaries, 66/2288A, Pulickal Complex, Near Railway overbridge, Pulleppady, Kochi-18
(op. rep. by Adv.R.Raja Raja Varma, Adv.K.Mahadevan, Gourinandanam, Vayanasala Road, Chithrapuzha, Tripunithura, Pin-682 309)
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:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant had paid an advance amount of Rs.50,000 on 02-12-2021 for the purchase of tiles from the opposite party, and has faced issues with the transaction. The opposite party failed to deliver the full quantity of tiles, and despite promises, they repeatedly changed delivery dates without providing the remaining tiles or refunding the money.
During this period, the complainant had paid wages to workers for five days, resulting in a loss of Rs. 23,000 in wages. A complaint was lodged at Ernakulam Central Police Station on 20-12-2021, but attempts for settlement were unsuccessful.
Upon checking Google reviews, it became apparent that many others had been similarly scammed. The complainant seeks appropriate action against the opposite party in light of numerous complaints also.
The complainant incurred a financial loss of Rs.30,000 due to a two-month delay in completing housework caused by the opposite parties' breach of trust. As a result, the complainant had to pay Rs.15,000 per month as rent for an additional two months for a rented house. The complainant believes that the opposite party is responsible for this loss and should reimburse the amount.
Additionally, the complainant has already incurred expenses amounting to Rs.10,000 related to legal proceedings and other case-related costs. These expenses were borne by the complainant in the pursuit of justice against the opposite party.
2). Notice
The Commission issued notice to the opposite party and the opposite party filed their version.
3). THE VERSION OF THE OPPOSITE PARTY
The complainant's case is being challenged as not maintainable by the opposite party. The complainant lacks a valid legal basis for filing the complaint. There was no consumer relationship with the complainant, and the complainant never utilized any services or transactions from them. The opposite party highlights a specific instance involving another individual, Mr. Biju, who interacted with the opposite party to purchase tiles for his house. The opposite party maintains that the complainant has no grounds to file the complaint and lacks locus standi to do so.
According to the opposite party, Mr. Biju selected several tile models, received an estimate, and paid an advance for a certain quantity of tiles. However, due to delays in obtaining the specified tiles, the opposite party requested additional time for delivery. Meanwhile, the complainant initiated a police complaint against the opposite party, alleging non-compliance. The opposite party contested the validity of the complainant's allegations and stated that the police complaint was unjustified.
The opposite party refutes the complainant's claims regarding expenses incurred and payments made, asserting that the complainant has not provided any evidence to support these assertions. They argue that the complainant has failed to substantiate their complaint with proper documentation and assert that the complainant's claims lack credibility.
In conclusion, the opposite party requests the dismissal of the complaint and seeks compensatory costs, contending that the complainant's case lacks merit, proper legal grounds, and evidence. The complainant's allegations are unfounded, and the complaint is without a genuine cause of action.
3) . Evidence
The complainant had not provided a proof affidavit but had submitted 4 copies of the documents along with the complaint before the commission.
1: Copy of the complaint lodged at the Central Police Station, Ernakulam.
2: Copy of Google Pay transaction record showing the payment of Rs. 50,000.
3: Copies of selected Google reviews highlighting issues similar to the complainant's case.
4: Bills issued by the opposite party related to the transaction.
4) 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?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complainant initiated this case against the opposite party to claim compensation for inadequate service due to their failure in refunding the complainant's money.
We heard Mr.Raja Raja Varma, the learned counsel appearing for the opposite party, has contended that the consumer complaint, when viewed initially, lacks grounds for validity either in accordance with legal principles or based on the factual circumstances of the case. It is emphasized that no consumer relationship existed between the complainant and the opposite party. The essence of the complaint centers on the fact that the complainant made a payment of Rs.50,000 to the opposite party with the intention of procuring a specific quantity of flooring tiles. However, contrary to this agreement, an alternate quantity of tiles was provided. Additionally, the opposite party assured the timely supply of the correct tiles, which regrettably was not fulfilled. This non-fulfilment prompted the complainant to engage labour for the tile work.
The opposite party contends that the viability of the presented petition warrants consideration as a preliminary matter. It is maintained that the complainant, identified as Laijy K K, has never availed of any services or engaged in any interactions with this opposite party. Consequently, the complainant's right to initiate this complaint is questionable. The opposite party cites a distinct transaction involving Mr. Biju, who approached them for a quantity of tiles. Mr. Biju selected four tile models and received a cost estimate for 2000 sq.ft of tiles, supported by an advance payment of Rs.50,000/-. On December 10, 2021, an agent acting on Mr.Biju's behalf acquired tiling-related accessories from the opposite party. A delay in receiving the specified tile quantity prompted the opposite party to request additional time for delivery. It was during this interval that the complainant pursued police intervention, resulting in the closure of the police petition. The opposite party alleges that the complainant is unreceptive to an amicable resolution. Additionally, the opposite party disputes the grounds cited for the police petition's closure, asserting that the complainant has failed to present any documentation to substantiate the claims or relief sought in paragraphs 1 to 4. The opposite party categorically denies the complainant's claims and questions the legitimacy of the cause of action, deeming it fabricated and devoid of genuine intent. The opposite party advocates for the dismissal of the complaints and reimbursement of their costs. Furthermore, it is highlighted that the complainant has been conspicuously absent from the preceding six postings, even after receiving notices, and has not provided any affidavit as evidence.
Following the initial filing of the complaint, the complainant appeared before the commission only once, on 29-04-2022. Subsequently, the commission issued a notice on 26-05-23, requesting the complainant to provide evidence. 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 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. “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 submit an affidavit of evidence after filing the complaint.
The 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 opposite party presents evidence of a separate transaction involving Mr. Biju, who approached them for tile procurement and received an estimate. The opposite party disputes the complainant's allegations of negligence and asserts that the complainant failed to substantiate their claims with proper documentation. The 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. Failure on the part of the complainant to satisfy the burden of proof and the passive involvement in the proceedings further undermine their stance. Consequently, this Commission has no other way except to dismiss the complaint. The aforementioned issues have been found to be unfavourable towards the complainant. The presented case by the complainant lacks merit. As a consequence, the following orders are 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 25th day of August 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar.
APPENDIX
Complainant’s evidence
1: Copy of the complaint lodged at the Central Police Station, Ernakulam.
2: Copy of Google Pay transaction record showing the payment of Rs. 50,000.
3: Copies of selected Google reviews highlighting issues similar to the complainant's case.
4: Bills issued by the opposite party related to the transaction.
UK/
Despatch Date
By hand/By post
C.C. No.59/2022
Order dated 25/08/2023
