DATE OF FILING: 1.8.2009.
DATE OF DISPOSAL: 21.6.2016.
Dr. N. Tuna Sahu, Member.
The complainant has filed this consumer dispute under Section 12 of Consumer Protection Act, 1986 alleging defect in goods against the Opposite Parties (in short, the O.Ps) and for redressal of his grievance.
2. Briefly stated the case of the complainant is that on 13.9.2007 the complainant purchased a Tractor vide Sl. No. 22433, Engine No. 4026580, Chesis No. 11064 along with its accessories including one Exide battery bearing No. 271756 (Manufacturing code No. 2067C6) from the O.P.No.2 who is the authorized dealer of the O.P.No.1 under a warranty period of one year from the date of purchase. Due to ill luck, the said battery did not give satisfactory performance for which the tractor at most of the time to which said battery is fitted remains out of order thereby the very purpose of purchasing the tractor by the complainant has been dashed to the ground for no fault of his. Though the fact was brought to the notice of the O.P.No.2 often and requested for its replacement but the O.P.No.2 paid no heed to such requests and flatly denied to replace the battery in question though the same is within the warranty period till date. This is nothing but violation of trade practice and to the terms and conditions of the warranty printed on the said receipt granted by the O.P.No.2. Due to non-replacement of the defective battery under the warranty period the complainant has incurred irreparable loss for which the Ops are squarely liable for payment of damages too to the complainant. It is unfortunate that the O.Ps jointly and severally, without taking into consideration the genuine case of the complainant even after receipt of the legal notice sent by the complainant to them, they did not settle the claim for the reason best known to them causing irreparable loss to the complainant. The loss of the complainant is a recurring one as due to faulty battery the entire tractor remain idle and the complainant has been put to irreparable loss and in addition to that the complainant has to incur expenditure of a considerable amount for preparing his claim and for running from pillar to post time and again for early settlement of his claim the aggregate of which by now would be around Rs.1,00,000/- besides interest accrued thereon. The O.Ps failed to reply to the notices given to them dated 15.4.2008 and the warrantee period ends on 12.9.2008 and as such the complaint petition is in time. Alleging defective in good and deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to replace the defective battery or the price of it at the present rate with compensation of Rs.1,00,000/- towards the unnecessary delay in the best interest of justice.
3. Upon notice the O.P.No.1 filed version through his advocate. It is stated the complaint in the present form is not maintainable both on facts and in the eyes of law and absolutely no cause of action and actionable claim arise in favour of the complainant so as to file the present complaint. The averments of para No.1 is not within the knowledge of the O.P.No.1 as no information of sale was submitted for registration of warranty in terms of condition of warranty. However the averments being foreign to the knowledge of the answering O.P., the O.P.No.2 namely M/s T.R. Automobiles would be in a better position to clarify the averments. It is made clear here that the O.P.No.2 is neither a dealer under the O.P. nor there is any relationship of principal agent between the O.P.No.1 and O.P.No.2. The averments of para No.2 are not within the knowledge of the answering opposite party as no complaint was made before them at any point of time. When periodical maintenance is not done other guidelines of maintenance is not observed in accordance with the users instruction, battery may not give recommended performance. The answering O.P. submits that so far the allegation of denial of the O.P.No.2 to pay heed to the complaint of the complainant is concerned; the answering O.P. has nothing to do with the matter as O.P.No.1 has no control over the O.P.No.2 who is a stranger. The averments of Para No.3 are false, incorrect and untrue as such denied, disputed and controverter. Neither the complainant nor the O.P.No.2 who allegedly sold the battery in question has reported the alleged defect or deposited the battery in question at the service centre of the answering O.P. for verification and necessary remedial measures. It has also not made clear whether warranty if any, was available at the time of alleged complaint before the O.P.No.2 office for inviting the attention. In absence of qualifying averments to that effect and proof of deposit of the battery in question, the complainant is liable to be rejected as nothing survived for adjudication. The allegation of loss due to non-replacement of alleged battery is denied and not admitted. The averments of para No.4 are incorrect, untrue, false, not admitted hence denied, disputed and controverted. The complainant is wrong to allege against the answering O.P. as the answering O.P. denies the relationship of dealer and manufacturer with the O.P.No.2. The allegation of negligence is thus a myth and liable to be discarded. The averments of para 5 are baseless, incorrect, untrue and false as such denied in toto. The allegation of joint and several liabilities is denied in view of the fact that the answering O.P. has specifically denied the principal-agent relationship with the O.P.No.2. The answering O.P. emphatically submits that no notice as alleged was ever received by them at any point of time. The complainant is therefore invited to strictly prove the allegation failing which this Forum may take adverse view against the complainant. The complainant since never deposited the battery or brought anything to the notice of the answering O.P. question of delay on their part is unconceivable. The complainant apparently brought a false and frivolous allegation and filed the present case with some concocted story is an attempt to gain unlawfully. The relief sought for in this complaint is untenable, unsubstantiated and devoid of merit as such liable to be rejected. In view of the aforesaid facts and circumstances the O.P.No.1 prayed that the complaint is liable to be dismissed with exemplary cost since devoid of merit.
4. On the date of hearing of the complaint, the complainant as well as the O.P.No.1 are absent on repeated call. The O.P.No.2 was set ex-parte on 14.3.2013 so he was also not participated in this case and the matter also heard ex-parte in his absence. It is seen from the case record that due to continuous absent of parties in this case notice was issued once again to the complainant as well as to O.P.No.1 vide this office letter No. 86 dated 3.2.2016. It is also revealed from the case record that notice A.D. was returned after due service. In spite of receiving the notice by the complainant and O.P.No.1 they did not prefer to participate in the hearing. In this case, the date of hearing was fixed to 15.3.2016. However, on this scheduled date neither the complainant nor O.P.No.1 found present in the Forum for hearing, even on 25.4.2016 all parties were remained absent on repeated calls. The case was posted for final hearing to 24.5.2016. On this date, the Forum after considering the fact and circumstances of the case decided to order the case as per merit since it is a year old case and no one is interested to proceed with the case.
5. As per merit of the case, the present complainant purchased a tractor along with its accessories including one Exide Battery (Exide freedom) bearing No.271756 (manufacturing code No. 2067C6) from O.P.No.2, alleged to be to the dealer of O.P.No.1 on 13.9.2007 with a warranty period of one year from the date of purchase. As per complaint of the complainant, the battery did not give satisfactory performance for which the said tractor most of time did not work well. The fact was also brought to the notice of O.P.No.2 but he did not give any heed to his grievance. Finally, the complainant on 15.4.2008 issued a registered legal notice to O.P.No.1 requesting for replacement of defective battery since it was within the warranty period. However, despite legal notice, the O.P.No.1 did not prefer to replace the same, hence the complainant on 1.8.2009 filed this complaint in this Forum with a prayer to direct the O.Ps to replace the defective battery in question or to return the price along with Rs.1,00,000/- towards compensation.
6. Accordingly notice was issued to O.Ps and the O.P.No.1 filed his written version on 5.2.2010 and written argument on 26.9.2013 through his learned advocate Mr. P. Patnaik. The O.P.No.2 despite receipt of notice did not prefer to contest the case, hence declared ex-parte on 14.3.2013. The complainant in this case also not filed written argument even after repeated direction by this Forum.
As per materials on record, the O.P.No.1 in his written argument stated that this is in addition to his written version filed before this Forum earlier and he submitted that the case is not maintainable either in law or in its present form. Absolutely there is no cause of action so the claim is liable to be dismissed. The O.P.No.1 also raised preliminary objection under Section 26 of the Consumer Protection Act, 1986 and contended that this Forum has got no jurisdiction to entertain the complaint. It is also contended that the O.P.No.2 is not an agent and this Forum lacks territorial jurisdiction as there is no office of OP No.1 within the territorial jurisdiction of this Forum. In this regard he relied the authority of Tamilnadu State Commission in the cases of Mrs. Sailendri S. Ramajeevan Vs. The M.D. Air India & Another, 2000 (1) CPJ 164 TNSC where it was held nothing to do with the complainant resident, jurisdiction lies with the local limits of the area where the O.P. resides. In his submission, he specifically contended that the O.P.No.2 M/S T.R. Automobiles is not his authorized dealer or agent. Hence there is absolutely no principal agent relationship between O.P.No.1 and 2 therefore the legal proposition of vicarious liability is redundant and far from application under the circumstances. In this case prima facie no trader consumer relationship between the complainant and O.P.No.1, so the dispute cannot be held to come within the ambit of the Consumer Protection Act, 1986. It has also been pleaded that the sale and defect if any was not brought to the notice of Company who provide warranty, hence no effective order can be passed against them. Under the aforesaid facts and circumstances of the case the O.P.No.1 prayed to dismiss the case as devoid of merit.
7. On perusal of case record, it is found that there is no dispute that the complainant purchased the alleged Exide Battery on 13.9.2007 along with tractor stated herein before as is evident from the case record. It is also seen from the case record that the complainant has produced one warranty card of the alleged battery bearing battery type Exide Freedom, Sl. No. 271756, manufacturing Code 2C67C6 issued in the name of present complainant by O.P.No.2. As per the conditions of warranty the vehicular application of the battery is for 12 months from date of sale of vehicle or 15 months of manufacture of battery whichever is earlier and the second condition is non-vehicular application of the battery and the warranty is for 6 months from date of sale or 9 months from the month of manufacture of battery whichever is earlier. In the present case, the warranty period of battery is applicable in vehicular application and the warranty conditions thereof. After going through the warranty conditions, we found that the warranty of alleged battery is valid up to 12 months from the date of purchase i.e. valid up to 12.9.2008 since the battery was purchased on 13.09.2007. On examination of warranty conditions of the battery, it is appears that the battery became defective during the warranty period as the complainant after repeated request to the O.Ps for replacement, he finally issued legal notice on 15.4.2008 when he failed make replacement of the same by the O.Ps. It is also a fact that the complainant has not mentioned specifically when the battery was found defective and when he first redressed his grievance before the O.P.No.1 and 2 about the defect of the battery but from the advocate notice we came to know that when his all out efforts were failed to get replacement of his defective battery he issued legal notice to the O.Ps on 15.4.2008. From this it can be ascertained that the battery was found defective before 15.4.2008 and specifically if we examined we can say that the batter was found defective during the warranty period i.e. before 12.9.2008 which is last date of warranty.
8. From the above discussion and as per the fact and circumstances of the present case, it is found that the battery is found defective during warranty period. When a battery is found defective during the warranty period, in our considered view, the O.Ps are liable to make replacement of the same with a new battery of same model. In this case the O.P. No.1 is manufacture and the O.P. No.2 as per record is the seller of the battery in dispute. In our opinion both are jointly and severally liable for replacement of the battery. Our finding is supported by the authority of Hon’ble National Commission, New Delhi in Wipro Limited Vs. Toppers Multimedia (P) limited and Others reported in 2010 Consumer Journal 547 such as: - “Consumer Protection Act, 1986- Section 2(1) (d) (i) - complaint-maintainability- during period of warranty an entity purchasing goods/products for a commercial purpose and availing of service under warranty would be entitled to seek redressal under Act from an appropriate consumer Forum”. In view of the above discussion, the case of the complainant is allowed against the O.P.No.1 and 2 are directed them who are jointly and severally liable to replace the defective battery of the complainant. The citation relied on by the O.P.No.1 regarding territorial dispute as discussed above is not applicable in this case since the alleged battery was purchase from O.P.No.2 who is very much within the territorial jurisdiction of this Forum hence we are not inclined to accept the same.
9. In the result, the case of the complainant is allowed against the O.P.No.1& 2 who are jointly and severally liable to replace the defective battery with a new battery. The O.P.No.1 & 2 are directed to provide a new battery to the complainant in place of defective battery within two months from the date of receipt of this order. The consumer dispute is decided accordingly. However we are not inclined to pass any order with regard to cost.
10. The order is pronounced on this day of 21st June 2016 under the signature and seal of this Forum. The office is directed to supply copies of the order to parties free of cost as per rules.
