DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day July 2023.
Filed on: 05.08.2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
CC No. 257/2021
COMPLAINANT
P.P.Francis, S/o.Pappu, Karukutty, Karukutty Village. Aluva Taluk, Ernakulam District.
VS
OPPOSITE PARTY
The Manager, The South Indian Bank Ltd., Karukutty Branch, Karukutty Village, Aluva Taluk, Ernakulam District.
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 holds an S.B. (Savings Bank) Account (No. 5399) with the opposite party bank. On 2nd July 2021, the complainant received a message from the bank requesting them to remit Rs. 1,000/- to maintain the minimum balance in the account. Following the message, the complainant deposited the specified amount.
However, due to the pandemic situation, the complainant was unable to conduct transactions for four months. To the complainant's surprise, the opposite party bank debited Rs. 561.30 from the account on 3rd and 4th July 2021. The complainant believes that the opposite party misled them into remitting the amount and considers it an unfair practice.
In response, the complainant sent a letter on 5th July 2021 to the opposite party, demanding the credited amount and the maintenance of the minimum balance. Despite repeated demands, the opposite party has not taken any steps to correct the mistake.
As a result of the unfair practice, the complainant has suffered mental agony and now seeks compensation of Rs. 10,000/- for the mischief committed by the opposite party. Additionally, the complainant claims that Rs. 361.30, which was misappropriated by the opposite party, should be credited back to their S.B. Account. The complainant also requests the cost of the legal proceedings to be borne by the opposite party
2) Notice
The commission sent the notice to the opposite party, and despite accepting the notice, the opposite party has not filed a version.
3). Evidence
The complainant had produced 2 documents before the commission.
4). The main points to be analysed in this case are as follows:
ii) 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?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complainant, a customer with S.B. Account No. 5399 in the opposite party's bank, received a message on 2nd July 2021 requesting Rs. 1,000/- to maintain the minimum balance, and after depositing the amount as instructed, due to the pandemic situation, the complainant couldn't make transactions for four months, during which the opposite party debited Rs. 561.30 on 3rd and 4th July 2021, leading to the complainant's claim of an unfair practice and seeking compensation from the opposite party.
The Commission has issued the notice to the complainant to appear before the Commission and adduce evidence if any. The Notice was sent to the complainant on 13-04-23 and is seen served as per the proof of delivery of the Postal Department. The complainant is continuously absent. The complainant has not turned up so far and no evidence adduced to date. So many chances were given to the complainant. The complainant is not interested to proceed further.
After admitting the complaint, the complainant did not attend any hearings before the commission nor submit an affidavit of evidence. In light of this, the commission is left with no choice but to dispose of the complaint based on the evidence available to them. Consequently, the commission proceeds with the disposal of the complaint on merit.
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 without which the Commission cannot derive into any inferences on the merit of 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 do not have any merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission this the 31st day of July 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Document No.1 : copy of letter sent by the complainant to the opposite
party bank dated 05.07.2021.
Document No.2 : copy of letter sent by the complainant to the opposite
party bank dated 05.07.2021.
