A consumer dispute cannot be decided on the basis of a complaint filed by a consumer or a reply filed by the defending party, unless it is supported by evidence. A consumer forum must avoid technicalities, but evidence is a must for disputes. Since the forum follows a summary procedure, the evidence is usually, by way of an affidavit, sworn before a notary or an officer empowered to administer oath. In the absence of a sworn affidavit, the complaint or the reply is worthless, as recently held by the National Commission.
The Indian Institute of Professional Studies had published an advertisement in the Dainik Bhaskar newspaper, wherein it had invited applications for fresh admission in the M.P.Ed. (master of physical education) course for 2009-10. Rekha Sharma sent a demand draft for Rs 200 for the application form. The institute sent its prospectus, not containing any information about the M.P.Ed. course. Treating this as an instance of false advertisement and an unfair business transaction, Rekha sent a letter demanding a refund of Rs 275, which included the bank commission for obtaining the demand draft and the postal charges. However, the institute did not refund. Rekha then filed a consumer complaint before the Kota District Forum, alleging she had lost one academic year due to this. She also filed an affidavit with documentary evidence to substantiate her claim.
The institute contested and submitted that the M.P.Ed. course had been started in that year, but since the new prospectus, which had been sent for printing, had not been received, the old one was sent, which also contained information about the course. The institute claimed on receipt of Rekha's letter demanding a refund, it had sent the new prospectus through post. It said there was no deficiency made and the complaint should be dismissed. However, since no affidavit was filed by it in support of this, the forum held its reply did not have evidentiary value.
After an appraisal and Rekha's documentary evidence, the forum held there was deficiency in service and order the institute to pay Rekha Rs 280 towards the demand draft and postal charges, Rs 25,000 as compensation for loss of an academic year, Rs 10,000 towards mental agony, and Rs 2,000 as costs.
The institute appealed to the Rajasthan State Commission against this. Law requires when an appeal is filed that 50 per cent of the awarded sum or Rs 25,000, whichever is lower, be deposited with the commission. The institute did not deposit, so its appeal was dismissed.
The institute then filed a revised petition before the National Commission. It contended that Rekha could not be considered a consumer, since she had only purchased the prospectus and the application form, but had not been admitted to the course. It also claimed there was no deficiency in service as the new prospectus, earlier under print, had been subsequently sent.
Overruling, the National Commission observed the procedure laid down under the Consumer Protection Act is well established, viz. that consumer forums have to settle disputes on the basis of evidence.
Since the institute had not filed its affidavit in evidence, it had failed to prove its submissions. Accordingly, the commission held the district forum was justified in refusing to consider the reply filed by the institute, which was not supported by affidavit. The order of the district forum was upheld and the revision petition dismissed. [Judgement dated 16.12.2011 of the National Commission in Revision Petition Number 2864 of 2011 in the case of Indian Institute of Professional Studies v/s Rekha Sharma]
So, the parties in a dispute must remember they cannot adopt a file-and-forget approach. Evidence should be brought on record, supported by an affidavit.
Else, no matter how good the case, in the absence of evidence, the dispute would go against a party that fails to file an affidavit.
The author is a consumer activist. Views expressed are his own