Delhi

New Delhi

CC/232/2019

Ritu Randeva - Complainant(s)

Versus

M/S. Bata Shoes - Opp.Party(s)

28 Jul 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/232/2019

 

IN THE MATTER OF:

 

RituRandeva

LGF, Himachal Bhawan

TansenMarg,

New Delhi-110001

                                                                                COMPLAINANT

 

VERSUS

 

1. Bata Store,

15 B, Connaught Place,

New Delhi-110001

 

2.  Bata House

           418/02

           Mehrauli Gurgaon Road, Sector-17

          Gurgaon-122001                                                       OPPOSITE PARTIES                                                

Quorum:

         Ms. PoonamChaudhry, President

          Sh. BariqAhmad , Member

          Ms. Adarsh Nain, Member

                                                                   Dated of Institution: 28.08.2019

                                                                   Date of Order         :   28.07.2022

 

O R D E R

ADARSH NAIN, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 hereinafter referred to as the CP Act. Briefly stated the facts of the case are that the complainant purchased three pair of shoes on 18.04.2019 from Bata Store, Opposite Party No.1. On making payment, she was handed over the invoice alongwith two carry bags bearing the name of OP. While going through the bill for the said purchase, the complainant came to know that the OP had wrongly charged the complainant Rs.3 for the two carry bags which she never consented to purchase. It is further alleged that it was duty of OP to provide their customers with the said carry bags. Hence, by doing so, the OP has been indulging into unfair trade practices by giving the carry bags bearing an advertisement without the consent of the complainant. It is further alleged that the complainant has served a legal notice to the OP but matter could not be settled. Hence, the complainant has filed the present complaint.
2. It is prayed that OP be directed to refund the amount charged for the carry bags, to pay compensation of Rs.50,000/- towards mental harassment and Rs.20,000/-litigation charges.
3. OP contested the case, written statement was filed taking objection that the complaint is misconceived. It was further stated that the complaint is liable to be dismissed as act of charging for a paper bag by OP does not amount to unfair trade practice as the invoice annexed with the complaint clearly mentions the charging of carry bag as optional. It is also stated that the complainant has no locus standi to file the present complaint.It was prayed that the complaint be dismissed.
4. We have heard the Ld. Counsel for parties. Vide order dated 12.07.2022, the opportunity to file Rejoinder and CE was closed as complainant failed to file the same despite several opportunities being granted.
5. Complainant has filed the present complaint alleging deficiency in service and unfair trade practices but evidence has not been led by complainant in support of his contentions. The onus of proof that there was deficiency in service was on the complainant. The burden of proof shifts to the OP only after the complainant discharges its initial onus. In the present matter, the complainant has failed to discharge the initial onus to prove his case.
6. It is to be noted that Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 has held that the initial burden of proof of deficiency in service was on complainant. The burden would not shift on OP.

It is also to be noted that Hon’ble State Commission also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the compliant. Further heed:-

“28. In our opinion, the approach of the Consumer For a is in complete disregard of 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 respondent. That has not been discharged by them. The Consumer For a, however, went on to unjustly shift the onus on the appellants because of their failure to producedany 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.”

For the foregoing reasons we are of the view that as complainant failed to prove that there was deficiency of service on part of OP. the complaint stands dismissed. No order as to costs.

The copy of order be uploaded on the website of the Commission.

File be consigned to record room alongwith a copy of the order.

 

 

 

POONAM CHAUDHRY

                                                                                                   PRESENT

                                                  BARIQ AHMAD                                                                               ADARSH NAIN

                                       MEMBER                                                                                         MEMBER