DOF 18.2.2005

DOO.12/7/ 2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 12^th     day of  July   2010

C.C.No.47/2005

A. Mohammed Ashraf,

Oceanic Enterprises,

Ayikkara, Kannur 3.                                                        Complainant

(Rep.byAdv.C.Krishnan)

1. M/s.Supreme Battery House,

     John Mill Stop,

     South Bazar, Kannur 2.

2.  Saji Varghese,

    ‘Powerown’, South Bazar,

     Kakkad Road, Kannur.                               Opposite parties

           (Rep. by Adv.Babu Mandein)

          O R D E R

Smt.M.D.Jessy, Member

            This is a complaint filed under section12 of the consumer protection Act for an order directing the opposite parties to take back the battery and inverter and to pay the cost of Rs.8000/- and Rs.5000/- towards compensation.

            The facts of the case are as follows: The complainant purchased an inverter with tubular battery with 300wtt. Capacity from 2^nd opposite party on 10.5.04 for Rs.8000/- as per cash bill No.314. 2^nd opposite party told the complainant that the inverter will work continuously for 3 hours once the battery is fully charged. But from the experience of the complainant even after fully charging the battery it never worked for more than half an hour. The guarantee card with the seal of 1^st opposite party was handed over to the complainant by 2^nd opposite party. After the purchase the inverter was not in proper working condition. Complainant informed the opposite parties on many occasions that the inverter was not improper condition. On 31.12.04 2^nd opposite party came to the business premises of the complainant and after examination of the apparatus told the complainant that battery is defective and he can repair the battery. He took the battery and returned after some days after repair. Even after repair there was no change in the battery. Hence the complainant approached the opposite parties with a request to take back the inverter and battery and refund its price and cost. But they did not heed to complainant’s request. On 7.1.05 complainant sent a registered lawyer notice to the opposite parties demanding to repay the amount of Rs.8000/- with notice charge Rs.500/-. Both opposite parties replied on 17.1.05. Since the inverter and battery supplied is not in proper condition the complaint could not make use of it economically. The business of the complainant adversely affected due to the defect in the battery and inverter supplied by opposite parties. The complainant has suffered mental pain and monetary loss. Hence the complaint filed.

            After receiving complaint Forum sent notices to opposite parties. Opposite parties appeared and filed heir version.

            1^st opposite party filed their version contending that 1^st opposite party is not the manufacturer of any inverter as stated in the complaint and he has not distributed inverter through any body to the complainant. 1^st opposite party has no connection with any inverter dealings between the complainant and 2^nd opposite party. 1^st opposite party submitted that he is a dealer of battery and 2^nd opposite party used to purchase batteries from 1^st opposite party.1^st opposite party used to give the warranty for the battery being distributed by them as offered by the manufacture. In case the battery sold by 2^nd opposite party to the complaint which was distributed by1st opposite party he is ready to give proper service. 1^st oppose party informed the same to the complainant but afterwards complainant has not approached 1^st opposite party. The battery purchased by the complaint may be manufactured by M/s. Prince Batteries, Randathani, Malappuram without impleading the manufacturer of the battery the complaint is bad for non-joinder of necessary parties. 1^st opposite party is dealing with the batteries of Sharp, Prince, Santrack Phenix, Amco Speed brands. The complainant not stated in the complaint the brand of battery. The apparatus supplied was of inferior quality etc. was not correct. The battery and inverter cannot be repaired etc. are not correct. Hence there is no deficiency on the part of 1^st opposite party.

            2^nd opposite party filed their version. They stated that the inverter supplied by him to the complainant was of best quality. The manufacturer of the said inverter is M/s.Poweron Inverters, Thrissur without impelading the manufacturer of the inverters the complaint is bad for non-joiner of necessary parties. The battery supplied to this 2^nd opposite party by 1^st opposite party complainant has not approached this opposite party before or after the said notice. Once the complainant  informed this opposite party the inverter is not working then 2^nd opposite party personally had gone at the premises of the complainant to inspect the apparatus then he could notice that the inverter was used to the maximum using the  maximum back up of the battery. The 2^nd opposite party then directed the complainant to recharge the battery. The 2^nd opposite party then directed the complainant to recharge the battery and there was no complaint there after. The complainant earlier wanted this opposite party to take back the apparatus as the power cut was not imposed by the Govt. Than and according to the complainant there was no use of an inverter when there is no load shedding.

            On the above pleadings the following issues were raised for consideration.

1. Whether there is any deficiency of service on the part of the opposite parties?

2. Whether the complainant is entitled to get relief as prayed?

3. Relief and cost.

            The evidence consists of oral evidence adduced by PW1, DW1, DW2, CW1 and Exts.A1 to A6 was marked for complainant’s side. Ext.C1 also marked. No documents marked on the side of the opposite parties.

Issue Nos. 1 to 3

            Admittedly the complainant purchased an inverter with tubular battery manufactured by 1^st opposite party. The purchase was made for Rs.8000/- as per cash bill No.314 dt.10.5.04. The case of the complaint is that at the time of purchase the opposite parties promised to the complaint that the inverter will work continuously for 3 hours once the battery is fully charged. But from the experience of the complaint the apparatus supplied that even after fully charging the battery never worked for more than half an hour. But from the expert report though Ext.C1, commissioner stated that at the time of commissioner’s inspection inverter and battery was not at all using by the complainant but it was on working condition.

            Complainant pleaded that on 31.12.04 2^nd opposite party came to the business premises of the complainant and on examination told him that the battery is defective and he will repaired it. But after the repair also there was no change in the working condition. The inverter was not working properly. Complainant’s averment is that the defect in the system cannot be repaired Hence he approached the opposite parties for refund of the price. But they were not ready. Ext.A4 is the lawyer notice demanding to refund the amount of Rs.8000/- with interest, send by the complainant. Ext.A5 is the reply send by 1^st opposite party and A6 send by 2^nd opposite party. Ext.A5 detailed that 1st opposite party is a dealer of battery and 2^nd opposite party used to purchase batteries from 1^st opposite party. He used to give warranty for the battery. 1^st opposite party also made an offer that incase the battery sold by 2^nd opposite party is the one which was distributed by1st opposite party he is ready to give proper service thereon  even by giving extra warranty from the date of service thereof. It was contended that since the complainant has not approached 1^st opposite party could not give service thereon. Ext.A6 reveals that 2^nd opposite party had informed the complainant that he was ready to rectify the defect. It was also informed that he was ready to replace it in case the same was not rectifiable. Ext.A6 dt.17.1.05 .Ext.A5 dt.17.1.2005 stated that opposite party is not able to do service since the complainant did not approach him. Complainant was not cared to these messages of the opposite parties. His approach to the replay reflects in his statement given in the chief affidavit thus: “ adp-]-Sn-bn ]dª apgp-h³ Imc-y-§-fpT hmkvXh hncp-²-am-bn-cp-¶p. am{X-aà FXnÀI-£n-IÄ t_m[n-¸n¨ D¯-c-¯n ]dª apgp-h³ Imc-y-§-fpT  hmkvXh hncp-²-am-I-bm ]cm-Xn-¡m-c³ \ntj-[n-¡p¶p“. Nothing has stated about the message of readiness of opposite parties to rectify the defects of inverter. It is very clear that complaint had not approached the opposite parties there after the Ext.A5 and A6.

            The report of the expert Commissioner sated that at the time of his inspection the inverter and battery was not in use. On inspection he realized that there was no separate brand name for inverter. It was a sample inverter assembled quite common. The inverter was in working condition. But the over charge cut off arrangements were not functioning in good condition. His report further says that in the complaint the subject matter of battery was a Tabular battery whereas at the time of inspection he had seen a battery bearing the seal with a name “MARK”. It is an automotive battery using the vehicles. In ordinary course tubular type battery has been used for inverter. Commissioner further stated that the battery which he had seen there was not in a position to use for the inverter. He has suggested two remedial measures viz. correcting the inverter charging cut off and placing new tubular battery.

            Complainant filed objection Commission report stated that the commissioner’s statement saying that the inverter was working is lie. The second point of objection complainant raised is that   commissioner has not report the fact that the alleged battery was taken away by the opposite party which was told to commissioner by the complainant.

            The complainant raises the allegation that, the tubular battery was taken away by the opposite party, first time in the objection to commission report and not ever before.  Complainant has no such case in his complaint  whencomplainant send lawyer notice on 7.1.05. The case of the complaint set up in the notice is that “Though my client has informed both of you about the defect of the inverter supplied by you and demanded to take it back and refund the amount paid by my client, you did not pay heed”. The notice called upon to take back the inverter and to refund the amount with interest. Ext.A5 & A6 the reply notice sent by opposite parties informed their readiness to repair the inverter. The complaint was filed on 18.2.05. When did opposite party take away the defective battery? The lawyer notice dt.7.1.05 was sent for a specific purpose to take back the inverter and to refund the amount with interest. If the tubular battery within the custody of complainant has been taken away by opposite party before 7.1.05 that should have been certainly pointed in the ordinary course in the lawyer notice dt.71.05. There is no mention with respect to tubular battery in the lawyer notice. Reply notice dt.17.1.05, Ext.A5 &A6 expressed the readiness of opposite parties to rectify the defect. Complaint was filed on 18.1.05. If tubular battery happened to be taken away from the custody of complaint by opposite party before or after the notice it should have definitely found place in the pleadings of the complainant. It is pertinent to note what is informed to commissioner is that “ XI-cm-dmb _mä-dn- A-gn-¨p-sIm-­p-t]m-bn-cp-¶p-F-¶p-T -B-b-Xp- F-Xr-I£bpsS- ssI-h-i-amWv Df-f-Xp-F-¶p-T-I-½o-j-W-tdm-Sv]-d-ªn-cp¶p “. That means the alleged tubular battery is still within the possession of 2^nd opposite party. But complainant has no demand with respect to the battery taken away by the opposite party. The evidence adduced by complainant by way of affidavit in lieu of chief examination stated thus: ‘31.12.2004   \p c­mT FXnÀI£n ]cm-Xn-¡m-csâ Øm]-\-¯n  h¶p C³thÀ«À ]cn-tim-[n¨v  _mädn XI-cm-dn-em-sW-¶p-]-d-bp-I-bpT _mädn FSp¯p sIm­v t]mhp-I-bpT sNbvXp. dnt¸ÀsNbvXp F¶p-]-dªv _mädn ho­pT Xncn-¨p-sIm-­p-h¶p LSn-¸n-s¨-¦-en-epT   C³thÀ«À{]-hÀ¯n-¨nÃ. Complainant has no case that opposite party has taken away the battery again. Moreover lawyer notice Ext.A4 sent on 7.1.05 after 6 days wherein no whisper could be seen with respect to the battery. Hence it is crystal clear that it is a pure lie that the tubular battery had been in the possession of 2^nd opposite party at the time of inspection of Commissioner. The complainant who has filed objection to Commission report that Commissioner did not report the fact that it was communicated to commissioner, did not ask any question to commissioner while he was examined as CW1. No question was put to the mouth of witness with respect to the passing of information by   the complainant that the tubular battery was taken away by opposite party. Objection to Commissioner Report has no footing if that point has not been put to witness on the occasion of examination of commissioner in the box. Hence it is sure that the averment of taking away of tubular battery and is with the possession of 2^nd opposite party cannot be believed at all.

            However, the report and evidence of the Commissioner that the cut off arrangements of charging section had not been working cannot be discarded though complainant had not accepted the offer of opposite party by Exts.A4 & A6. Hence we are of considered opinion that 2^nd opposite party has to rectify the defect if the same is rectifiable or else to replace the same by a fresh piece. Since the opposite party was ready and willing to rectify the defect and informed the same by Exts.A5 & A6 in reply to Ext.A4, we are inclined avoid cost and compensation. The issues 1 to 3 are answered partly in favour of the complainant.

            In the result, the complaint is allowed partly directing the 2^nd opposite party to rectify the defect of inverter and incase if it is not possible replace the inverter by a fresh one within one month from the date of receipt of this order, failing which the complainant is entitle to execute the order as per the provisions of consumer protection Act However no order as to costs

                                              Sd/-                   Sd/-               Sd/-

President          Member           Member

APPENDIX

Exhibits for the complainant

A1.Cash bill issued by Wings sales promotes

A2.Guarantee card

A3.Copy of the telephone bills.

A4.copy of the lawyer notice sent to OPs.

A5&A6.Reply notices sent by OPs

Exhibits for the opposite parties: Nil

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.Complainnt

Witness examined fro the opposite parties:

DW1.C.P.Nasar

DW2.Sajee Varghese

Witness examined for  the court

C1.Rajeesh.C.                                                  /forwarded by order/

                                                                        Senior Superintendent

Consumer Disputes Redressal Forum, Kannur