DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of June 2023.
Filed on: 14/03/2023
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member C. C NO. 157/2022
COMPLAINANT
Abdul Salam, S/o.Abdul Khader Shah, Rahamath Manzil, Marampally P.O., Aluva-683 105
VS.
OPPOSITE PARTY
Tyre Land, Tyre Retrading, Pattimattom P.O., Kunnathunadu Panchayath,
Pin-683 562
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 rented a vehicle and subsequently purchased a rear tire from the opposite party for a sum of Rs. 3850 on 5th March 2022. However, on 8th March 2022, while the complainant was traveling from Pathanamthitta to Thiruvananthapuram, the tire suddenly burst at Kozancherry, occurring at night. In order to proceed with the journey, the complainant had to incur an additional expense of Rs. 1000 to have a Stepini tire fitted.
The following day, the complainant approached the opposite party's shop and informed them about the incident. The opposite party displayed an unwillingness to address and resolve the matter. As a result, the complainant is now seeking compensation from the opposite party for the losses endured.
The demand made in the complaint is for the opposite party to take responsibility for the damages caused and provide appropriate compensation to the complainant. This compensation is being sought to cover the expenses incurred for purchasing the tire, the additional cost of fitting the stepini tire, as well as the inconvenience experienced during the journey.
2) . Notice
The Commission issued a notice to the opposite party, but it was returned as "unclaimed" according to the Postal Department's proof. This is considered as deemed service. The opposite party has not filed any version thus far. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant did not provide a proof affidavit, but they did submit a document along with the complaint to the commission.
- Copy of the Estimate issued by the opposite party dated 05.03.22
- 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 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:
The complainant has filed a case claiming compensation for the deficiency in service provided by the opposite party. The complainant asserts that the service rendered was unsatisfactory and did not meet their expectations.
During the hearing on 20th June 2023, the complainant was not present and had no representation. The case was scheduled for the complainant's evidence. The commission issued a notice to the complainant, requiring their appearance and the presentation of any evidence. The notice was sent on 27th April 2023 and is deemed served based on the proof of delivery from the Postal Department.
Despite multiple opportunities, the complainant has not appeared or provided any evidence thus far. The complainant has shown no interest in proceeding further with the case.
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 was 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.”
We find the issue Nos. (i) to (IV) are found not in favour of the complainant. we do not find any merit in the contentions raised by the complainant. Hence the following orders are issued.
ORDER
Under the circumstances stated above the Commission does not find any merit in the contentions raised by the complainant and therefore the complaint is dismissed. No cost.
Pronounced in the Open Commission this the 30th day June 2023 .
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order Forwarded by order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Copy of the Estimate issued by the opposite party dated 05.03.22
