Delhi

New Delhi

CC/97/2018

Jatinder Manktala - Complainant(s)

Versus

M/S. Unity Hyundai & Anr. - Opp.Party(s)

05 Aug 2022

ORDER

 

 

                                     DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

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

 

 

CC/97/2018

 

IN THE MATTER OF:

 

 

Ms.JatinderManktala

House No.20-B, Block-48,

DDA Flats, Chitranjan Park,

New Delhi.

                                                                                                                                      COMPLAINANT

 

VERSUS

 

1. Unity Hyundai

           Through its Managing Director/Principal Officer,

            Regtd. Office G-5,Aggarwal Auto Mall,

             Outer Ring Road, Site-II,

             Shalimar Bagh,

            Delhi-88

 

 

2. Sh. Shubham, Owner Unity Hyundai

            Regtd. Office G-5, Aggarwal Auto Mall,

             Outer Ring Road, Site-II,

              Shalimar Bagh,

             Delhi-88

 

 

3. Hyundai Motors India Ltd.

         Through its Managing Director/Principal Officer,

         Regtd. Office 2^nd, 5^th& 6^th Floor,

         Corporate One (Baani Building),

          Plot No.5, Commercial Center,

           Jasola, New Delhi-110025

 

                                                                                                                                            OPPOSITE PARTIES

 

 

 

 

Quorum:

Ms. PoonamChaudhry, President

          Sh. BariqAhmad , Member

          Ms. Adarsh Nain, Member

                                                                   Dated of Institution: 14.03.2018

                                                                   Date of Order         :   05.08.2022

 

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 on 27.12.2018, the complainant booked  one Hyundai Grand 1-10 car white sport model automatic car for the total consideration of Rs.4,96,000/- with Opposite Paty No.1 who is seller of hyundai cars. Opposite party no.2 is manufacturer of Hyundai Cars. It is alleged that the Opposite parties inspite of receiving total consideration amonut, failed to deliver the car while they were supposed to give the delivery of car on or before 03.01.2018. It is further alleged that the complainant sent several emails and also visited the office of OP several times in this regard, the car was not delivered which amounts to deficiency of services on the part of OP.
2. It is further stated that the complainant has sent legal notice to the OP but inspite of service, the OP has neither replied to the noticenor complied with the same. Hence, the complainant has filed the present complaint.

 

3. It is prayed that OP be directed to deliver the Hyundai Grand I-10 Automatic car as per the booking, to pay a sum of Rs.10,00,000/- as compensation and Rs.55,000/- as litigation charges.
4. All the Opposite parties contested the case and filed their respective written statements. OP1 and OP 2 objected to the complaint being misconcieved and groundless. It was contended that the OP was always ready to deliver the Grand I 10 car but the complainant was adamant to take automatic grand car only. It was further stated that the complainant was informed that the sports model of the said car shall not be available in near future, hence, no deficinecy on their part. OP 3, the manufacturer of the Car, contended that the complainant fails to disclose any role/liability of OP 3 in the matter. Hence the complaint is liable to be dismissed.
5. We have heard the Ld. Counsel for parties and perused the file. Vide order dated 06.07.2022, the opportunity to file Rejoinder and CE was closed as complainant failed to file the same despite several opportunities being granted.
6. Complainant has filed the present complaint alleging deficiency in service 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.
7. 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 OPs. 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

                                                                                                PRESIDENT

                             

 

                                              BARIQ AHMAD                                                                                 ADARSH NAIN

                                                MEMBER                                                                                              MEMBER