DOF.11.5.2007 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, 4th the day of June 2010 CC.89/2007 V.V.Santhosh, Ramalayam, Kolappa, Pattannur. Complainant 1. General Manger, Exide Industries Ltd., Exide House 59 E, Chowringhee Road, Calcutta 700020 Opposite parties 2. Area Manger, 32/2432, Kunnath Lane, S.N Junction, Palarivattom, Cochin. 3. M/s.Mahad Traders, Near Makkani SouthBazar, Kannur 2. O R D E R Sri.K.Gopalan, President This is a complaint field undersectin12 of consumer protection act for an order directing the opposite party to replace the battery and to pay an amount of Rs.25, 000/- as compensation. The brief facts of the case of the complainant are as follows: complainant is the owner of the bus. The vehicle was purchased from Shakathi Finance, Kannur. The battery of the above bus belongs to 1st opposite party which was fixed in the bus from the 3rd opposite party on 2.1.06. The 3rd opposite party issued a warranty card of 1st opposite party which assure that the company will replace the damaged one with a period of 12 months. This battery having Sl.No.46530953 sold by 3rd opposite party damaged on 7.9.06 while bus was plying. The complainant approached the 3rd opposite party to replace the battery but even after issue of a receipt of the same he had refused to replace the same stating that the opposite parties are not in a position to replace the battery. Opposite party endorsed the same on the back side of the order form. Complainant issued lawyer notice to opposite parties demanding to replace the battery and pay Rs.25, 000/- as compensation. Opposite party replied with false allegations. Bus was garaged due to non availability of the battery as such complainant sustained financial loss and happened to commit default in payment of loan installment. Opposite parties are bound to replace the battery as per the terms of warranty. Hence this complaint. Pursuant to the notice opposite parties were entered appearance and filed version jointly denying all the material allegations of the complainant. The contentions of the opposite parties in brief are as follows: The allegation that the battery was fixed in the bus from the 3rd opposite party on 2.1.06 and 3rd opposite party issued a warranty card of1st opposite party are not at all true. They are not aware of the facts that the complainant owns a bus. If the said statement is true the complainant can very well produce the bill issued by the 3rd opposite party. The statement that all the free services and paid services within time and as such the battery also were checked periodically as per warranty conditions is not correct. As the battery wasn’t sold by the 3rd opposite party there is no territorial jurisdiction to entertain the complaint. Complainant approached 3rd opposite party with damaged battery for service is correct. 3rd opposite party refused to replace the same. The reason for refusal is that on examination 3rd opposite party could find the battery has external damage which was caused by faulty and improper handling of the battery. As per clause 10 of the conditions of the warrantee such damage cannot be taken to account for giving warranty. So the complainant was asked to pay the repair charges but he refused the same. When the warrantee conditions stipulated that the external damage caused by improper handling cannot be counted for free service. Complainant is aware of the warranty stipulations and he deliberately suppressed the real damage caused to the battery. When he brought the battery the container was seen broken. The same will be happened only due to the improper handling of the same. As per the conditions 10 and 11 it is clearly stated that the warranty does not cover damages to the battery caused by faulty electrical systems, improper handling of the battery etc. and breakage of containers and cover or breakage/deformation of terminal due to mechanical shock like hammering do not come under the purview of warranty. He has sent reply to the layer notice stating that he is not able to replace the damaged battery or to do the free service on the damage which was caused only due to the faulty and improper hand ling of the same. On the above pleadings the following issues have been taken for consideration. 1. Whether there is territorial jurisdiction to entertain the complaint? 2. Whether there is any deficiency on the part of opposite parties? 3. Whether the complainant is entitled for the remedy as prayed in the complaint/ 4. Relief and cost. The evidence consist of oral evidence of PW1, Exts.A1 to A4 Opposite party has no oral or documentary evidence. Issue Nos. 1 to4 Admittedly the manufacturer of the battery is Exide Industries Ltd. 3rd opposite party admitted that the complainant approached 3rd opposite party with damaged battery for service. It is also admitted that 3rd opposite party refused to replace the battery. 3rd opposite party contended that the reason behind the refusal is that on examination they could find that the battery has external damage which was caused by faulty and improper handling of the battery. As per clause 10 of the conditions of the warrantee such damage cannot be taken to account for giving warrantee. So the complainant was asked to pay the repair charges but he refused the same. These contentions makes crystal clear that the case of the 3rd opposite party for refusal of replacement of tyre is nothing but violation of warranty conditions. In other words if there was no warranty violation replacement of alleged battery would have been materialized. 3rsd opposite party who is the distributor of 1st opposite party has no other case except the warrantee violation at the time when service or replacement was first demanded. Hence the legal obligation on the part of 3rd opposite party to perform the service or replacement of battery provided there was no violation of warranty has been evidently clear from the circumstances of the case. So there is no need for further investigation to determine the jurisdiction of this forum entertaining the complaint. Forum has enough jurisdiction since he brought the tyre within the jurisdiction of this Forum. In the light of the above discussion it can rightly derive that the question whether there is warranty violation or not is the prime fact tobe examined to determine whther there is the liability on the part of opposite parties. Ext.A2 is the AncillaryJob order dated 7.9.06, which recorded the complaint as “Battery cracked”. It is endorsed behind the face page of Ext.A2 by 3rd opposite party that “This battery is damaged. BatteryNo.46530953 no replacement, since I am not able to replace”. Pleadings of opposite parties very well make it clear that the reason for refusal is nothing but the violation of warranty condition. Complainant adduced evidence byway of proof affidavit in tune with his pleadings. He has stated that: 1.Ext.A3 is the legal notice send by complainant to opposite party calling upon to replace the battery as prescribed by the warranty issued by opposite party NO.1 and to pay an amount of Rs.25, 000/- as damages. ExtA4 is the reply send by 3rd opposite party briefly stating as follows: On 2.1.01 complainant brought a damaged battery for service. On examination 3rd opposite arty could find that the battery has external damage which was caused by faulty and improper handling of the battery. As per clause 10 of the conditions of warrantee each damage cannot be taken to account for giving warranty. So complainant was asked to pay the repair charges. Being a dealer and authorized service centre 3rd opposite party has to obey the instructions given by the company in the case of service repairs of the batteries. The 3rd opposite party admits in their notice that they are the dealer and authorized service centre of 1st opposite party. More over 3rd opposite party has no case that he has not issued warranty card.3rd opposite party has no case that battery was not fixed in the bus from 3rd opposite party. 3rd opposite party developed his case raising those contentions after lodging the complaint. If that was true it would have been reflected in Ext.A4. Ext.A4 is the first response of the opposite party from where he cannot withdraw his stand thereafter for only defending the case. 3rd opposite party filed proof affidavit for and on behalf of all the opposite parties in tune with the pleadings in their version. The evidence adduced by3rd opposite party by way of chief affidavit ignored the stand that they have taken while sending the reply of legal notice Ext.A4. The affidavit though stated that detailed reply was send to legal notice they have not taken into account the fact that the opposite parties had no other cases except warrantee violation at the time when notice was issued. Moreover, 3rd oppose party neither entered in witness box nor taken interest to produced supporting documents to prove that there was violation of warrantee conditions. It was mainly alleged that complainant has violated condition No.10 and 11 of the warrantee. Warrantee No.10 says that “This warranty does not cover damage to the battery caused by faulty electrical system, improper handling of the battery by unauthorized dealers/auto electricians, willful abuse, destruction by fire collusion, theft or recharging. The charging system and electrical circuit of the vehicle will recheck by the Exide authorized personnel or dealer before finalizing any warranty claims”. No evidence adduced to substantiate that the above said conditions were violated. The charging system and electrical circuit of the vehicle whether checked by the Exide authorized personnel or dealer is not brought before the Forum. And condition 11 says breakage of container and cover or breakage/deformation of terminal due to mechanical shock like hammering does not come under the purview of warranty. Opposite party has not taken interest even to produce the inspection report of the 3rd opposite party before the Forum. Since there is no attempt on the part of opposite parties to substantiate the facts connected with the exclusion conditions opposite party cannot enjoy the benefit of exclusion conditions. It is pertinent to note that opposite party has brought in cross examination of PW1 that the battery is usually kept in box fixed with angler that is “ passenger _Ên box B¡n AXn angler sI#v _Ôn-¸n¨ sImmWv kq£n-¡m-dv“. So also PW1 deposed that Fs´-¦n-epT hkvXp-¡Ä iàn-bmbn _Ên-e-Sn-¡m³ km[-y-X-bnà Accident case H¶pT \ne-hn-en-Ó. In the absence of supporting evidence on the part of opposite parties contentions raised by the opposite parties could not rule out the allegations of the complainant with respect to the damage of the battery. Hence we are of opinion that complainant is entitled for the replacement of alleged battery on return of the same. Refusal of replacement amounts to deficiency of service on the part of opposite party. Complainant has the case that the complainant’s bus was garaged in the complainant’s house due to the non availability of the battery as such financial loss was sustained to the complainant. It is also alleged that he has sustained financial loss due to non payment of the loan installment. But complainant could not prove the loss by adducing supporting evidence. Usually there will be alternative arrangements to substitute battery and it is difficult to believe an operator is not capable of substituting a battery for temporary purpose. Anyhow or other complainant failed to prove the actual financial loss that he has sustained due to the damage of the battery. The available evidence and the circumstantial back grounds does not provide any data to come in to conclusion that he has sustained any financial loss as is alleged by complainant. In view of what has been stated above we are of opinion that an order to replace the alleged battery with a defect free one on return of the damaged battery, will meet the ends of justice. Complainant is also entitled forRs.1000/- as cost of this proceedings. Hence the issues 1 to 3 are found partly in favour of complainant and order passed accordingly. In the result, the complaint is partly allowed directing the opposite parties to replace the alleged battery with a defect free one on return of the damaged battery together with Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is at liberty to execute the order in accordance with the provisions of Consumer protection Act. Sd/- President Sd/- Member Sd/- Member APPENDIX Exhibits for the complainant A1.Warranty card issued by OP A2.Ancillaryjob order dt.7.9.06 issued by Sakthi Automobiles A3.Copyof the lawyer notice sent to Ops A4.Reply notice Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE MR. GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
