DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 27th  day of November, 2023

                                                                   Filed on: 06/03/2018

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                             Member

C.C. No 107/2018

COMPLAINANT

Christopher Joseph, Padathu Veettil House, Thalakodu P.O., Kothamangalam.

THE OPPOSITE PARTIES

1. Manager/Proprietor, Nokia India Pvt. Ltd., Sannadhi Street, Karumariamman Nagar, MGR Nagar, Thuravikadu, Chennai, Tamilnadu 600077.
2. Technician, Tele-Tech, Vettukattil Hospital Complex, TB Junction, Muvattupuzha 686661.
3. Manager/Proprietor, MyG Digital Hub, Door No. XIX/249, The Land Mark, Kothamangalam.

(Rep. by Adv. Dilkush V.K., “Subra”, Kakkod P.O., Kozhikode 673611)

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, filed under Section 12 (1) of the Consumer Protection Act, 1986, details a dispute involving the purchase of a Nokia-3 mobile phone (Model No. TA1032 DS4G 357277089955341) for Rs. 9500 on December 20, 2017, from the 1^st opposite party. The phone came with a one-year insurance scheme, as outlined in the GDOT protection certificate, effective from February 20, 2017, to December 19, 2018, promising unlimited claims within the insurance period.

The complainant alleges that the mobile phone became defective two months post-purchase, on February 12, 2018. Upon contacting the seller (3^rd opposite party), they were directed to approach the second opposite party for repair. The second opposite party initially repaired the phone and returned it on February 15, 2018. However, the phone malfunctioned again the next day. The complainant's subsequent request for repair was denied by the second opposite party, who also allegedly used harsh language. The complainant's efforts to resolve the issue through the customer care center were futile.

In seeking relief, the complainant requests the commission to order either a refund of Rs. 9500 or the provision of a new Nokia-3 mobile phone of equivalent value.

2. Notice

The Commission issued notices to the opposite parties. While opposite parties’ no’s 2 and 3 acknowledged receipt of the notices, they failed to submit their versions. As a result, they have been set ex-parte. Notice sent to opposite party number 1 was returned unclaimed. However, it is considered as deemed service for opposite party number 1, who also did not provide their version. Consequently, they are set ex-parte as well.

3) . Evidence

The complainant, in this case, has not submitted a proof affidavit but three documents that were marked as Exhibits A-1 to A-3.

Exbt. A1:    Copy of GDOT Protection Certificate

Exbt. A2:    Copy of retail invoice dated 20/12/2017

Exbt. A3:    Copy of Customer Registration Slip

4) The main points to be analyzed in this case are as follows:

i)       Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant.

ii)      If so, whether the complainant is entitled to get any relief from the side of the opposite parties?

iii)     Costs of the proceedings if any?

5)      The issues mentioned above are considered together and are        answered as follows:

The complainant has been continuously absent since 03-11-2022. The commission has issued a notice to the complainant to appear and to furnish a panel of experts. The notice was sent to the complainant on 27-04-2023. Despite being given the opportunity, the complainant neither filed the proof affidavit nor appeared before the commission thereafter. There have been several chances provided to the complainant to proceed with the case, but there has been no interest shown in doing so.

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.

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.”

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.

 After careful consideration, it has been determined that the complainant's case lacks merit. The issues above mentioned (i) to (iii) have also not been resolved in the complainant's favour. Consequently, 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 on this the 27^th day of November, 2023.

Sd/-                  

D.B.Binu, President

                                                                          Sd/-                  

                                                                    V.Ramachandran, Member

                                         Sd/-                  

                                                                      Sreevidhia.T.N, Member

Forwarded/By Order

Assistant Registrar  

APPENDIX

COMPLAINANT’S EVIDENCE

Exbt. A1:    Copy of GDOT Protection Certificate

Exbt. A2:    Copy of retail invoice dated 20/12/2017

Exbt. A3:    Copy of Customer Registration Slip

OPPOSITE PARTY’S EVIDENCE

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 107/2018

Order Date: 27/11/2023