DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 18th day of August of 2023.
Filed on: 10/08/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
CC NO.375/2022
COMPLAINANT
T.S. Sudhir, Thekkumthala House, Moolayil Lane, Azad Road, Kaloor, Kochi 682017
VS
OPPOSITE PARTY
NETMEDS, 5th Floor, EA Chambers (Express Avenue) No. 49 & 50L., Whites Road, Royapettah, Chennai 600014.
(Rep. by Adv. Jacob Chacko, Alliance Lawyers, 2nd Floor, Farah Mansion, Behind Metro Mafatlal, M.G. Road, Ernakulam.682025)
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 placed an order for products worth Rs. 2202.87/-, which was discounted to Rs. 1122.14/- on June 2, 2022. However, despite making a full payment, the complainant received only a partial delivery of the goods, and medicine worth Rs. 749.25 was not delivered.
Upon noticing the partial delivery on June 4, 2022, the complainant attempted to resolve the issue through emails, phone calls, and written communication with the opposite party (the company). On June 5, 2022, the complainant sent an email to the opposite party requesting a refund or the delivery of the missing medicine. The complainant also claimed compensation of Rs. 10,000/- for the mental and physical agony suffered due to the deficiency in services and negligence of the opposite party.
The prayer in the complaint is to either receive a refund of the amount paid or receive the medicine TOFATAS 5 Tablet 10's along with a compensation of Rs. 10,000/- for the suffering caused by not receiving the medicine.
2) Notice
The commission sent the notice to the opposite party, and the opposite party has filed a version.
- THE VERSION OF THE OPPOSITE PARTY
The complainant alleges that they received an incomplete product after purchasing 'TOFATAS 5 Tablet 10's & Netmeds 3 Ply Face Mask with Nose Pin 100's' at a discounted price. They claim that one of the products was missing from the order. However, the opposite party denies the allegation and states that they shipped the complete order as requested by the complainant. The OP contends that the complainant did not follow the proper procedure to raise the issue and did not respond to the packaging video provided as evidence. The opposite party considers the matter resolved from their end and believes the complaint is baseless and intended to extort money illegally. They request the commission to dismiss the complaint and not award the requested compensation.
4) Evidence
The complainant had produced copies of the email communications between the complainant and the opposite party.
5) The main points to be analysed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complainant ordered products worth Rs. 2202.87/-, discounted to Rs. 1122.14/- on June 2, 2022. Despite full payment, only a partial delivery was received, and Rs. 749.25 worth of medicine was missing. After noticing the partial delivery on June 4, 2022, the complainant attempted to resolve the issue through communication with the company via emails, phone calls, and written messages. On June 5, 2022, the complainant requested a refund or the missing medicine and claimed Rs. 10,000/- compensation for mental and physical agony caused by the deficiency in services and negligence of the opposite party. The prayer in the complaint seeks either a refund of the amount paid or delivery of the medicine TOFATAS 5 Tablet 10's, along with Rs. 10,000/- in compensation for the suffering endured due to the non-delivery.
The complainant has been consistently absent since 29.09.2022. The commission issued a notice to the complainant on 21.06.2023, which was duly served by the Postal Department. Despite multiple opportunities, the complainant has not appeared or presented any evidence in support of their claim regarding the opposite party's deficiency in service or unfair trade practices. There is a complete absence of written or oral evidence and supporting affidavits to substantiate the complainant's allegations against the opposite party.
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.
After careful consideration, the above issues have been found to be unfavourable to the complainant. The case presented by the complainant are considered to be without merit. As a result, the following orders have been 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 18th day of August, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 375/2022
Order Date: 18/08/2023
