Date of Filing:26.12.2023

Date of Disposal:12.07.2024

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S, PRESIDENT

1. This complaint is filed by the complainant under section 35 of C.P.Act, 2019 against the OP for deficiency in service seeking direction  to refund a sum of  Rs.12,999/-  and direct the OP pay compensation of Rs.1,00,000/-  and such other reliefs.

2.   The brief facts of the case is as follows: 

This is the case of the complainant that the complainant purchased Kodak 40”TV from OP through online with order No.406-6575875-2753963 dt.03.07.2023 by paying Rs.12,999/-.The complainant submits that the said TV is inoperative, displaying a blank screen with no image or display. The TVis having 01 year warrantyand complainant requested the OP torepair the TV, but more than one month has passed since initial complaint lodged, but the OP unable to resolve the problem.The complainant submits that the technician of OP visited the complainant premises revealed that Kodak is unable to obtain the required replacement parts as they are currently unavailable. The complainant made number of calls to OP, but they told wait for 10 days and despite of making repeated inquiries no resolution has been provided. Due to the act of the OP the complainant got issued legal notice on 30.10.2023 to resolve the issue, but the OPhave not provided any reply to the notice. Aggrieved by the act of the OP, the complainant preferred this complaint seeking relief as prayed for in the complaint.

3. Notice to OP  duly served, OP remained absent and they have been placed ex-parte.

4. The complainant has not filed chief examination evidence/affidavit before the commission. Apart from this, the complainant and her counsel have remained continuously absent since 13.05.2024. Inspite of providing sufficient opportunity, the complaint failed to file chief-examination affidavit and hence, evidence of complainant  is taken as not filed.

5. Perused the documents  and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that she is entitle for the relief sought?

2. What order?

7. The findings on the above points are as under:

Point No.1           :       Negative

Point No.2           :       As per final order

REASONS

8. POINT NO.1:- Despite of service of notice, OP not appeared before the commission to contest the matter and they have been placed ex-parte.

9. On the date of complainant evidence, complainant  and her counsel have not appeared before this Commission and remained absent and not chosen to lead evidence  and  failed to lead any evidence by  way of affidavit. Hence, on 02.07.2024, the evidence of complainant is taken as not filed.  

10. The onus to prove that there was deficiency in service of the OP lies on complainant, but complainant failed to lead evidence under section 38(6) of C.P.Act, 2019. It is statement of fact that the complainant has not filed affidavit evidence and therefore  his allegations regarding deficiency of service remains as unsubstantiated.

11. The complainant has failed to lead any evidence by way of affidavit to prove their allegations against OP on record. Mere pleading in complaint that OP has caused deficiency of service and on perusal of records before the Commission submitted by complainant, we failed to find any material which shows that OP caused deficiency of service. The question of fact as the complaint which needs to be proved  by leading evidence is more important with documentary evidence. During the trial of a complaint evidence by way of affidavit describing every point of case is essential.

12. In the above complaint, even after sufficient opportunity is granted to the complainant to prove his case, but on the date of complainant evidence the complainant was not appeared present before this commission, remained absent and failed to lead any evidence by way of affidavit and the evidence of the complainant is taken as not filed and hence the matter is posted for arguments.

13. As per section 38(6) of C.P.Act, 2019, every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record providing that where an application is made for hearing or examination of parties in person or through video conferencing, the District Commission may on sufficient  cause being shown and after recording its reasons in writing, allow the same and according to section 38(a) for the purpose of this section the commission shall have the same powers as vested in civil court under Civil Procedure Code 1908(50 of1908) while trying the suit in respect of the following matters.

1. Summary and enforcing the attendance of any witness or any defendant or witness and examining the witness an oath.
2. Discovering and production of any documents or other material object as evidence.
3. Receiving  of evidence as affidavit.
4. Requisitioning of the report  of concerned analysis.
5. Any other matter which may be prescribed.

14. During the trial of the complaint evidence by way of affidavit describing every point of the case only allegations in writing  made by the complainant could not be treated as complainant evidence by affidavit and the  pleading of complaint is not treated as evidence. As per C.P. Act, 2019 under section 38(3)(c) when the complainant fails to appear  on the date of hearing before the District commission may decide  the complaint on its merits.

15. After sufficient time was granted to the complainant to lead evidence by way of affidavit and since the complainant and counsel remained absent on the date of evidence, the commission comes to the conclusion that the case of deficiency of service alleged is not proved by the complainant. Hence, the complaint is hereby dismissed. Accordingly, we answer the Point No.1in Negative.

16. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint filed by the Complainant is  hereby dismissed. No costs.
2.  Furnish free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 12^th July 2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SHRINIDHI.H.N)            

           MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit: Nil

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                (SHRINIDHI.H.N)            

SKA*