Delhi

North East

CC/291/2014

Narender Kr. - Complainant(s)

Versus

BaBu Malik & ors - Opp.Party(s)

26 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.291/14

 

In the matter of:

 

	Shri Narender Kumar S/o Lal Chand R/o Flat No.23-D Pocket-A, G.T.B. Enclave, Delhi-110093.	Complainant
	Versus
1.           2.         3.	Babu Malik Proprietor of M/s Bharat Battery & Inverter, At:- C-543, Near Rajeev Automobiles, Chajju pur, Babarpur, Delhi-32.    M/s Tyre World At: A/121, Shakarpur Vikas Marg, Delhi-92. (Through Its Proprietor)   M/s Exide Industries Limited A-3, Patparganj Industrial Area New Delhi-92. (Through Its Manager)	Opposite Parties

 

 

 

	DATE OF INSTITUTION:	31.07.2014
	DATE OF DECISION      :	26.07.2017

 

 

Nishat Ahmad Alvi, Member:-

ORDER

1. As per complaint complainant purchased four dry batteries manufactured by OP3 from OP1 on 22.06.2013 for total sale consideration of Rs. 10,400/-. OP1 got the said batteries from OP2 who is authorized dealer of OP3. OP3 assured warranty of 12 months on these batteries by way of warranty card as issued by OP1.
2. These batteries became defective and stopped working due to manufacturing defect, complaint whereof to was made on 5.4.2014, to OP1, who after receiving defective batteries, alongwith complainant’s BSA Street Rider Scooty, sent the same with inverter to OP2 who further delivered it to OP3. Receipt of these batteries is duly acknowledged by OP3 vide its SMS dated 16.04.2014.  Again on 23.04.2014 OP3 sent another SMS to complainant stating “new replacement batteries sent on 23.04.2014 vide invoice 1538392044-46. Please collect after five days from the dealer. Thanking for support”. By this SMS OP3 has accepted the claim of complainant as correct. As per promise OP3 was suppose to send four batteries in replacement of defective batteries but instead it sent four letters all dated 23.04.2014 thereby rejecting the claim of complainant stating  that the defect is due to extraneous reasons.
3. Vide its letter dtd 03.05.2014 OP1 has accepted that he has sold the said batteries to complainant with a guarantee of 12 months under the instructions of OP2. Complainant also issued notice dated 19.5.14 to OP3 and sent the same through speed post vide receipt No.       ED-314478624IN. But despite service of notice, OP3 neither changed the batteries nor refunded its cost. The defect in the batteries is a manufacturing one for which OPs are bound to replace the same. Rejection of the claim by OP3 is arbitrary, unjustified, illegal and without any basis, leading to deficiency in service on its. Complainant has prayed for grant of directions to OPs to replace the aforesaid batteries with new one or refund the cost thereof with compensation of Rs. 50,000/- and litigation cost of Rs. 11,000/-.
4. All the OPs were duly served but only OP1 appeared in this forum on 28.04.2014 who too abstained from appearing on further dates and did not file any reply in this forum. Hence, all the OPs were proceeded against ex parte.
5. Ex-parte evidence by way of affidavit filed by complainant alongwith relevant document.
6. Heard the complainant and perused the record.
7. The documents filed by complainant are retail invoice dated 22.6.13 issued by OP1, warranty cards of the same date,  containing terms & conditions of warranty, copies of SMS dtd 16.04.2014 and 23.04.2014, letters of rejection all dated 23.04.2014 and letter dated 3.5.14 issued by OP1.
8. Perusal of above documents shows OP1 sold four dry batteries of 12 Volt to complainant against payment of Rs. 10,400/-. The batteries carried 12 months warranty thereon. As per terms & conditions no. 5 of the warranty Right to Determine, whether battery needs repair rectification free replacement, rests with the company. OP3 sent SMS dated 16.04.2014 showing Serial No. of battery as 5C3000141, 142, 143 & 144, thereby stating that they will revert within three days. Thereafter, by way of further SMS dated 23.04.2014 showing the same serial numbers of batteries it was specifically stated that new replacement batteries were sent on 23.04.2014 vide invoice 1538392046 – 45 & 44 further asking to collect the same after five days from the dealer. Rejection letter states that batteries are warranted against fault arising due to manufacturing defect, extraneous reasons as mention are not covered under the term of warranty. Extraneous reasons given in the letter are – cause of defect :-

1. the battery warranty period has expired on
2. the battery was purchased on

This cause seems incomplete as there is no date of expiry. Even otherwise record itself shows that the product was within warranty when the complaint was lodged and batteries were received by OP3. Thus this theory of extraneous reasons of OP3 is baseless. Regarding manufacturing defect first of all OP3 duly receive batteries. The act of receiving batteries itself shows that it would have been sent to OP3 only when OP2 found itself unable to repair the same. As per settle law if the defect is not rectifiable it is deemed to be a manufacturing defect. This view also get strength by the fact that by way of sending SMS dated 23.04.2014, OP3 itself states that replaced batteries were sent and complainant was asked to collect the same from its dealer. Thus this rejection letter seems an afterthought by OP3 and OP2. Further letter of OP1 given to the complainant also substantiate this view. In this letter OP1 admits that he has sold four dry batteries of E-Scooty to the complainant which were provided by OP2 with 1 year warranty. These batteries became defective. Hence, the same were returned by the complainant on 05.04.2014, to him which he delivered to OP2 the authorized dealer who further sent these batteries for replacement to OP3. But OP3 did not replace the same which is not complainant’s fault.   

9. On the basis of above discussion purchase of batteries, arising of defect therein and receipt thereof for replacement by OPs are established. It is also established that OP3 did not replace the batteries and rejected the complaint. There is also nothing on record to show as to the defective batteries have been returned to the complainant by OP3. Undeniably it is OPs’ own case that the replacement is allowed only when there is a manufacturing defect. Now as also narrated in para 8 hereof OPs have failed to rectified the defect. In that case as per settle law the defect is deemed to be a manufacturing defect.   
10. Therefore, we hold OP2 & OP3 guilty for deficiency in service and adopting unfair trade practice and direct them to

1. Replace the four defective dry batteries with new one of the same description. Failing which refund of Rs. 10,400/- (Rupees Ten Thousand four hundred only) the cost of the batteries with interest thereon @12% per annum from date of purchase till final payment ; and
2. Pay compensation of Rs. 3000/- (Rupees Three Thousand only) ; and
3. Litigation cost of Rs. 2000/- (Rupees Two Thousand only)

to the complainant, jointly and severally.

14.    This order shall be complied by the OP within 30 days from the receipt hereof. Failing which the rate of interest shall be charged @15% per annum.

15.      Let a copy of this order be sent to each party, free of cost, as per regulation 21 of the Consumer Protection Regulations, 2005.

16.      File be consigned to record room.

(Announced on 26.07.2017)     

 

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member