THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 269/2014

Dated this the 24^th day of July 2017

                     (Smt. Rose Jose, B.Sc, LLB.                         :  President)

                          Smt.Beena Joseph, M.A                           : Member

                          Sri. Joseph Mathew, MA, LLB                : Member

ORDER

Present: Beena Joseph, Member:

            This petition was filed on 20.05.2014.  The case of the complainant is that the battery which is purchased from 1^st opposite party became damaged during transit from the carrier Company.  The complainant had purchased an Exide battery from 1^st opposite party as on 01.05.14 which entrusted 2^nd opposite party the parcel company to deliver to the complainant, which was delivered on 05.05.14.  It is seen that the pack became leaked stage.  Next day the electrician from 1^st opposite party came for installation  informed that, there was crack on the battery and it cannot be used at all.  This fact was intimated to the dealer 1^st opposite party, they informed that they have no liability to compensate the petitioner and it is the duty of the parcel company. Earlier petitioner couriered a Carrom board through this transport company which was delivered properly by them, that is why this battery entrusted with the transport company. The 1^st opposite party has not done anything to check the condition of battery or replace it.  Complainant issued E-mail to the battery company but they disown the liability.  It was intimated to the parcel company also but there was no response on their part.  So complainant sustained a loss of Rs.15,600/- as battery charge.  Hence this complaint.

            Notice issued to both parties, 1^st opposite party appeared there after complainant filed IA 211/14 to implead the transport company as the 2^nd opposite party in the above matter.  The above petition was allowed notice served upon them and there was no appearance on their part hence they set ex-parte on 15.05.2015.

            There after 2^nd opposite party filed IA.114/15 to set aside the ex-parte order which was allowed and the case was posted for their version.  Mean while 1^st opposite party filed version but no version filed by the 2^nd opposite party and there was no representation on their part. Thus again they set ex-parte.

            1^st opposite party filed version stating the following contentions.  1^st opposite party disputes the entire allegations in the petition.  But they admit the purchase of battery from them on 01.05.14.  1^st opposite party states that complainant had inspected the battery and he had satisfied with quality of the product.  And he had seen that the battery is free from defects.  1^st opposite party issued bill and warranty Card to the same. Wherein it is stated that no claim for damage sustained during transport will be entertained.  This opposite party is not undertaking the transport of batteries purchased from them.  In this case as per the instruction of the complainant only the battery send through parcel service 1^st opposite party entrusted the battery to 2^nd opposite party as per the instruction of the complainant at that time battery was in good condition and without any fault.  Later 1^st opposite party received phone call from the complainant regarding the leak of the battery.  In this case 1^st opposite party is not liable to replace the battery. This was informed to 2^nd opposite party and they contacted complainant and taken back the battery.  The 1^st opposite party  had inspected the battery at the premises of 2^nd opposite party and found that there is an extensive crack on the battery case, it was not present at the time of entrusting it to the 2^nd opposite party.  1^st opposite party had informed the complainant that such mechanical defects cannot be covered under warranty.  So the 1^st opposite party has no liability to compensate the complainant and there is no unfair trade practice or deficiency of service on the part of 1^st opposite party.  Hence 1^st opposite party demands for dismissal of complaint with cost.

Points to be considered.

1. Is there any service deficiency or illegal trade practice adopted by opposite parties?
2. If yes what are the reliefs?

     In this matter complainant examined as PW1 , Ext.A1 to A3 were marked on their side.  Ext.A1 is the battery bill, Ext.A2 receipt by 2^nd opposite party’s driver, Ext.A3 is the delivery bill of 2^nd opposite party.

Point No.1

           On analyzing the documents and evidence before this forum it is seen that sale of the battery by 1^st opposite party and transporting it by 2^nd opposite party is not disputed by any of the parties.  The complainant states that the battery was delivered by 2^nd opposite party as on 05.05.14 which was in a leaking stage so that it could not be installed by the technicians of 1^st opposite party.  The 1st opposite party admits that there was complaint of leakage by the complainant on next day on the delivery of the product.  The 1^st opposite party submitted that the warranty clause cannot be entertained because the battery was inproper condition at the time of delivery it to the 2^nd opposite party.  The damages sustained during transits cannot be come under the warranty clause .  So 1^st opposite party has no liability to entertain the claim of the complainant.  The complainant herein admits that the damaged battery was taken back by the 2^nd opposite party and issued receipt to the same.  In this regard 1^st opposite party also states that he had inspected the damaged battery from the premises of 2^nd opposite party.  This shows that now the battery is in the possession of 2^nd opposite party.  Notice was served upon 2^nd opposite party but they remained absent, hence set ex-parte.  Thereafter they filed petition IA.114/15 to set aside the ex-parte order which was allowed and the case was posted for their version but thereafter they abstained from the proceedings.  It shows that there was negligence on the part of 2^nd opposite party in answering the claim.  Moreover Ext.A3 shows that the parcel entrusted to 2^nd opposite party as electric goods and paid the charge.  Usually the electric goods parcel requires more care and caution but in this case 2^nd opposite party handled it in negligent manner.  That is why they taken it back, which kept in their custody.  In these circumstances we could not held that 1^st opposite party is liable for the damage sustained to the complainant.  On the other hand complainant and 1^st opposite party establish before the forum that 2^nd opposite party delivered the battery to the complainant’s in a leaking stage and same was taken back by 2^nd opposite party issuing a receipt which marked as EAxt.A2.  There is no mitigating circumstances to disbelieve  Ext.A2.  In this situation 2^nd opposite party is liable to compensate the petitioner to the loss sustained by him.  In the result petition is allowed.

           Therefore we direct the 2^nd opposite party to pay Rs.15,600/-(Rupees fifteen thousand six hundred only) as the cost of the battery and to pay Rs.1000/-(Rupees one thousand only) as compensation for deficiency of service and Rs.500/-(Rupees five hundred only) as cost of the proceedings.  Comply the order within one month from the date of receiving the copy of the order.

                                                                                     Dated this 24^th day of July 2017.

Date of filing: 20.05.2014.

SD/-MEMBER                                 SD/-PRESIDENT                 SD/-  MEMBER

                                                                               APPENDIX

Documents exhibited for the complainant:

A1. The battery bill for Rs.23750/- dtd.01.05.2014

A2. Receipt by 2^nd opposite party’s driver dtd05.06.2014.

A3. Delivery bill of 2^nd opposite party.

Documents exhibited for the opposite party:

   Nil

Witness examined for the complainant:

PW1.Chandramathi (Complainant’s mother)

Witness examined for the opposite party:

RW1. Janardanan Nair( Dealer of Exide battery)

                                                                                                                               Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT