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mere pleadings are not enough, one has to file affidavit to prove the case. absence of affidavit is fatal=No evidence has been filed before us through this revision petition to rebut the ground on which the appeal came to be dismissed by the State Commission vide its impugned order. Coming to the merits, so far as the order of the District Forum is concerned, we find that as per the well-established procedure the District Forum has to settle the consumer disputes on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint. Since the petitioner failed to prove its submissions through affidavit in evidence, the same could not be accepted by the District Forum. It is seen from the order of the District Forum that after filing its reply containing submissions not supported by any affidavit, the petitioner also chose to remain absent and was proceeded against ex parte. In the circumstances, we do not find any irregularity, illegality or jurisdictional error in the order passed by the District Forum or dismissal of the appeal of the petitioner by the State Commission through the impugned order.

NATIONAL CONSUMER DISPUTES REDRESSAL

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COMMISSION

NEW DELHI

REVISION PETITION No. 2864 OF 2011

(From the Order dated 31.05.2011 in FA No 738/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Indian Institute of Professional Studies

Through Mr. Anuj Kumar Goyal                                                       Petitioner

Assistant Director

Deep Bhawan, Polytechnic Chauraha

Faizabad Road, Indira Nagar,

Lucknow (U.P.)

Versus

Smt. Rekha Sharma                                                                            Respondent

W/o Sh. Satish Vyas

R/o : 1-2, Dada Bari

Kota– 324009

Rajasthan

 

BEFORE:

            HON’BLE  MR. ANUPAM DASGUPTA, PRESIDING MEMBER

            HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner                             :             Mr. Praveen Singh, Advocate

 

Pronounced on :  16th December 2011

 

ORDER

PER SURESH CHANDRA, MEMBER

The facts leading to filing of the complaint under the Consumer Protection Act, 1986 in the present case are that the opposite party/petitioner had published an advertisement on 5.6.2009 in ‘Dainik Bhaskar’ newspaper wherein it had asked for applications for fresh admission in the M.P.Ed. (Master of Physical Education) course for the calendar year 2009-2010. The respondent/complainant herein sent a demand draft dated 8.6.2009 for Rs.200/- from State Bank of India, Kota asking for application form for admission to the M.P.Ed. course. The demand draft (DD) was sent by speed post on 9.6.2009 which involved a further expenditure of Rs.25/- in addition to Rs.30/- spent by the respondent as DD charges. The opposite party sent a  prospectus to the complainant but in the prospectus no information was given about M.P.Ed. course. Treating  this as an instance of false advertisement and an unfair  business transaction on the part of the OP, the complainant sent a letter on 30.6.2009 through registered post requesting for refund of Rs.275/-. The OP, however, did not refund the money. Aggrieved by this and also alleging that she lost her one (academic) year in the process, the complainant filed a consumer complaint with the District Forum praying for compensation from the OP. Complainant filed her affidavit in support of her claim along with eight other pieces of  documentaryevidence. The OP contested the complaint and submitted that the M.P.Ed. course in question had been started in that year itself but the new prospectus had been sent for printing and hence the OP had sent old prospectus which also contained information about the M.P.Ed. course. It was claimed by the OP that the complainant either could not see or misplaced the same deliberately. The OP, therefore, after receiving the letter from the complainant sent the new prospectus through post and hence there was no deficiency on the part of the OP and hence the complaint should be dismissed.

2.         While the OP had filed its reply in the matter yet no affidavit in support of the submissions made was filed nor the contents of the reply were verified due to which the same could not be treated as evidence. After appraisal of the issues, evidence adduced by the complainant and supported by documents, the District Forum held that there was deficiency in the matter on the part of the OP. While accepting the complaint, the District Forum passed the following order:-

“The complaint of the complainant is decided ex-parte against the opposite party and ordered that the opposite party shall pay the complainant Rs.280/- for DD amount, Rs.10,000/- towards mental agony and Rs.2000/- for litigation expenditure within two months from the date of order. Due to act of the opposite party, complainant lost her one year for which the opposite party shall pay Rs.25,000/- to the complainant. If the payment is not made in stipulated period then the complainant shall be entitled to get interest @ 9% P.A. on the decreed amount.”

3.         Aggrieved by the order of the District Forum, the OP filed an appeal against the same before the State Commission. This, however, came to be dismissed by the State Commission vide its impugned order dated 31.5.2011 because of non-filing of the receipt for the statutorydeposit  by the petitioner. The petitioner has now filed the present revision petition challenging the aforesaid order of the State Commission.

4.         We have heard the learned counsel for the petitioner. It is contended by him that first and foremost the respondent is not a consumer since she had only purchased application form including  prospectus but had not been admitted to the course in question. His second contention is that in response to the request of the complainant, a copy of the new prospectus which was earlier under print was sent to the complainant and hence no deficiency could be held on the part of the petitioner/OP. He has, therefore, submitted that order dated 28.4.2010 passed by the District Forum, Kota accepting the complaint of the respondent and upholding thereof by the State Commission by dismissing the appeal of the petitioner are arbitrary, illegal and against the mandatory provisions of law and hence are liable to be set aside.

5.         We have gone through the orders of the Fora below and perused the record before us. It is to be noted that the State Commission has summarily dismissed the appeal of the petitioner for not filing the deposit receipt. No evidence has been filed before us through this revision petition to rebut the ground on which the appeal came to be dismissed by the State Commission vide its impugned order. Coming to the merits, so far as the order of the District Forum is concerned, we find that as per the well-established procedure the District Forum has to settle the consumer disputes on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint. Since the petitioner failed to prove its submissions through affidavit in evidence, the same could not be accepted by the District Forum. It is seen from the order of the District Forum that after filing its reply containing submissions not supported by any affidavit, the petitioner also chose to remain absent and was proceeded against ex parte. In the circumstances, we do not find any irregularity, illegality or jurisdictional error in the order passed by the District Forum or dismissal of the appeal of the petitioner by the State Commission through the impugned order. There is, therefore, no case for our intervention with the orders of the Fora below. The revision petition is accordingly dismissed at the threshold, with no order as to costs.

…………………………………….

(ANUPAM DASGUPTA)

PRESIDING MEMBER

……………………………………

(SURESH CHANDRA)

MEMBER

SS/

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