DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 7th day of September, 2023.
Filed on: 14. 10.2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
CC NO.383/2019
COMPLAINANT
Ratheesh. C.P, Flat No. 3B, NSD VERONA, Manjummel Post, Ernakulam PIN-683501
VS
OPPOSITE PARTY
- Oyo Corporate Office, Kerala Head, M R Arcade, Pathadippalam, Edappally-682039,
- Oyo Corporate Office, 9th Floor, Spaze Palazo, Sector 69, Gurugram, Haryana-122001
(Rep. by Adv. Aadhirithiq S., Aadhitya, Malayidamthuruth P.O., South Vazhakulam, Ernakulam 683561.)
F I N A L O R D E R
D.B. Binu, President.
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that on May 22, 2019, the complainant lodged a reservation at "Kumars The White House" Hotel in Mysore through the opposite party's mobile application. The total charge amounted to Rs 1411, which covered breakfast as well. A confirmation email and notification were received from the opposite party, verifying the reservation.
As per these details, the complainant and their family arrived at the hotel on the evening of that day. However, upon arrival, the hotel staff declined to provide them with a room. Shockingly, the complainant informed the individual that the hotel had no affiliation with the opposite party. This situation left the complainant convinced that they had fallen victim to deceit by the opposite party.
Subsequent attempts to communicate with the opposite party via phone led to a brief and dismissive response consisting solely of the word "sorry," followed by the abrupt termination of the call. Regrettably, the opposite party made no efforts to rectify the situation and offer alternative accommodations.
This unfortunate turn of events placed significant mental and physical burdens on the complainant and their family, especially given the late hour of their arrival in an unfamiliar place along with their children.
In light of these circumstances, the complaint seeks compensation in the amount of Rs. 5 lakhs.
2) Notice
The Commission issued notices to the opposite parties, but the opposite parties failed to submit their versions within the stipulated timeframe. Consequently, the opposite parties are set as ex-parte.
3) Evidence
The complainant did not provide a proof affidavit; however, they did submit two documents, which were identified and marked as Exhibits A-1 and A-2.
Exhibit A-1. Copy of Booking Conformation Letter issued by the opposite parties.
Exhibit A-2- Copy of Audit report -physical verification issued by the opposite parties.
4) 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:
In the present case, the complainant alleges instances of gross deficiency in service and unfair trade practices against the opposite parties.
Starting from September 1st, 2021, the complainant has consistently remained absent. The commission has issued the notice to the complainant to appear and adduce evidence if any. Sent out on December 1st, 2021, the notice was subsequently returned with the endorsement "no such addressee" as verified by the Postal Department's delivery records. This notice had been dispatched to the address furnished in the complaint. Despite numerous opportunities, the complainant's ongoing nonattendance and failure to produce any evidence are evident.
To date, the complainant has not made an appearance, nor have they presented any evidence. Numerous chances for participation were extended to the complainant, all of which were not utilized. This consistent absence signals the complainant's lack of interest in pursuing the matter further.
Furthermore, the complainant has not provided an affidavit of evidence. In light of this, the commission's only course of action is to resolve the complaint based on the evidence that is available. Consequently, the commission proceeds to address the complaint on its merits.
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. “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 attend any hearings before the commission or 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 is 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 on this the 7th day of September 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1. Copy of Booking Conformation Letter issued by the opposite parties.
Exhibit A-2- Copy of Audit report -physical verification issued by the opposite parties.
Opposite party’s evidence
Nil
Despatch date:
By hand: By post
kp/
CC No. 383/2019
Order Date: 07/09/2023
