Presented by Miss R. Pattnayak, President .
(1) The Complainant namely, Khemchand Banka has filed this Consumer dispute case U/s 12 of the Consumer Protection Act against the Opposite Parties, praying there-in that, the Opposite Parties be directed to provide the Complainant with a new Battery replacing the defective battery, and compensation of Rs.15,000/-(Rupees fifteen thousand)only towards his sufferings on the ground of deficiency of service and unfair trade practice adopted by the Opposite Parties.
As per the case of the Complainant, he is the owner of a Tata ACC vehicle bearing Registration No. OR-17-K/6880 and was maintaining his livelihood by plying the same, for self employment.
The Opposite Party No.1(one) is the manufacturer of Exide Brand Battery and Opposite Party No.2(two) is the authorized local dealer of the said Exide brand battery.
On Dt.07/04/2009, the Complainant has purchased one Sonic Jet Battery for his Tata ACC Vehicle from the Opposite Party No.2(two) vide Bill No.047, for a consideration of Rs.3,300/-(Rupees three thousand three hundred)only. The battery was having Mfg. Code-517, Sl. No. 167181 typed as 38B20 R/D.
As the battery was found defective and not functioning properly after using the battery for about four to five months, he brought it to the Notice of Opposite Party No.2(two) and requested him to solve the problem but O.PNo.2(two) instead of solving the problem kept the battery in his custody without curing the fault and without providing the requisite service there of which is illegal, because the battery is being defective during its warranty period. This is the violation of warranty rule by the concerned Opposite Parties.
Again, it has been pleaded by the Complainant, that despite his request to Opposite Party No.2(two) to give him a new battery by replacing the defective one but to no effect. The Complainant has handed over the said defective battery for repair to Opposite Party No.2(two) along with a claim from and O.P No.2 (Two) assured him to solve the problem but till to-day the battery is with the Opposite Party No.2(two).
Finding No other way, the Complainant had caused service of Pleader's Notice on the Opposite Parties, which were received by the Opposite Parties but they did not give any reply, other wise remained silent. This act of Opposite Parties not only amounts to deficiency in service but also amounts to unfair trade practice. On the other hand, the Complainant suffered from physical, mental and financial loss without getting any benefit or utility by this illegal act and conduct of the Opposite Parties.
The Complainant has filed the Affidavit written argument and documents to prove his case.
Cash memo bearing of No.047 Dt. 07/04/2009 issued by M/s Tridev International i.e. Opposite Party No.2(two) to the complainant.
Dealer claim form bearing No.714.
Warranty booklet of Battery bearing warranty card No. B 080937 dated 7.4.2009.
Copy of Pleader Notice to Opposite Party No.2(two) Dt.22/03/2010 along with Acknowledgment Receipt and copy of Pleader Notice to O.P No.1 dated 9.7.2010 along with Acknowledgment.
Copy of letter Dt.08/10/2009 issued by Exide industries limited.
Copy of letter Dt.05/08/2010 issued by Exide Industries Limited, Ganesh agency, Gopal Palli, Sambalpur.
(2) Notices were duly served on the Opposite Parties. SR back from them and the case was posted for appearance and version by Opposite Parties. All the Opposite Parties No. 1 and 2 appeared on Dt.23/05/2011 and filed their version on Dt.23/05/2011 and 14/07/2011 respectively and controverted the claim of the Complainant on different grounds.
(3) The grounds taken by the Opposite Party No.1(one) is on the maintainability of the case challenging the status of the Complainant as a consumer Under Section-2 (d) of the C.P.Act,1986, as the battery purchased for the said vehicle was registered under commercial category.
The further plea of the Opposite Party No.1 (one) is that, the battery in question was not covered under warranty period in view of the clause-11 d of the warranty card supplied along with the battery which stipulates that the warranty is void and is not operative if the difference between the date of manufacture and date of sale is more than 3 months. So the complainant is not entitled for replacement of the Battery.
The Opposite Party No.1(one) further submitted that, he is the manufacturer of automotive and other batteries and carries on the business through resellers who purchase the batteries from him and resale for their commercial gain. The relation between him with the reseller are only on principal to principal basis and not principal and agent. Since there being no principal and agent relationship, between the dealer/retailer and manufacturer, the O.P No.1 is not vicariously liable for the acts and deeds of its dealer/retailer. So the complainant has no locus standi to sue the O.P No.1 as he has no legal responsibility for the cause of the complainant. So the O.P.No.1 prays for dismissal of the complaint since the complaint petition is devoid of merit.
The Opposite Party No.1(one) has also filed the following documents in support of his case on dated 23.5.2011.
Copy of warranty card revealing the clause II d of warranty terms and conditions.
Copy of the delivery challan revealing the reason of reject of warranty claim.
The Opposite Party No.2(two) contended in his version that, the Complainant is not a consumer as per the provisions of Consumer Protection Act in view of his contention that he has purchased the battery for his vehicle which is used for commercial purposes and hence the complaint petition is not maintainable. It is alleged by the Opposite Party No.2(two) is that the Opposite Party No.1(one) is totally responsible for the defective goods as the Opposite Party No.2(two) is only a dealer under the Opposite Party No.1(one) and sells the battery which comes from the manufacturer then the State Depo, then to Sambalpur Depo and lastly to him and also the Opposite Party No.1(one) has also not mentioned the date of manufacturing, hence it is difficult to ascertain the period of warranty and guarantee.the complaint raised by the complainant has been communicated to O.P.No.1 but O.P.No. 2 remained silent and not replaced the goods.the O.P.NO.1 further submitted that the O.P No.2 sold the battery as per specification of O.P.NO.1 and the O.P.NO.1 should take the responsibility of the goods found defective.
Thus the Opposite Party No.2(two) prays to drop the case as he is bound to act as per the advice of the Opposite Party No.1(one) and unless the Opposite Party No.1(one) replace the goods, he is unable to replace the goods.
Relying on the pleading of the Parties, we take us the following issues for adjudication.
- I S S U E S -
Whether the Complainant is a consumer of the Opposite Parties ?
Are the Opposite Parties guilty of deficiency in service ?
Whether the Complainant is entitled to get any relief ?
(1)Whether the Complainant is consumer of the Opposite Parties ?
The Opposite Parties disputes the status of the Complainant to be a consumer questioning the maintainability of the complaint within the purview of the Consumer Protection Act claiming that the Complainant purchased the battery for his vehicle which is plies by the Complainant for commercial purposes. But to this issue the explanation appended to Section -2(d)(i) and (ii) of the Consumer Protection Act clarifies that “Commercial Purpose” does not include use by a person of good bought and used by him for the purpose of earning his livelihood by means of self employment. In the present case, the Complainant is an unemployed and maintaining his family by plying the vehicle in question. In other words, he himself was plying it without assistant of any other person to maintain his family. So the complaint petition is maintainable. Admittedly, the battery in question was purchased on Dt.07/04/2009 from the Opposite Party No.2(two) vide bill No.047, Mfg code No.517, Sl No.167181, type 38B20 R/D. The warranty card bearing No. 080937 has also issued by the Opposite Party No.2(two) on the same date for he battery. So, the purchase of battery by the complainant from Opposite Party No.2(two) proved further through the documentary evidence i.e. Cash memo/Bill and dealer claim from No.714 Dt.07/04/2009.. Admittedly, the Opposite Party No.2(two) is the manufacturer of the battery. So, in the above circumstances, the Complainant is a consumer of Opposite Parties very much within the relevant provision of the Act.
On this point we rely on the decision of Hon'ble Supreme Court in case of Laxmi Engineering work Vrs P.S.G Industries institute reported in 1995 (2) CPR II and also in AIR 1995 Supreme Court 1428, where the Hon'ble Court has held that “ A person who buys goods and use them himself exclusively for the purpose of earning his livelihood by mean of self employment is within the definition of expression “Consumer”.
Thus the Opposite Parties contention is not sustainable in this regard.
(2)Are the Opposite Parties guilty of deficiency in rendering service to the Complainant ?
Purchase of the Battery is admitted by both the Parties, proved further through the Cash Memo/Bill filed with the case record, and through the version of the Opposite Party No.1(one) and No.2(two).
Opposite Parties No.2(two) , via his version accepted the occurring of problem with the battery. Thus the facts admitted need not to be proved again. The point whether the Complainant approached the Opposite Parties and got denied the service is under question.
It is seen from the complaint petition is that on using the battery for only four to five months, the battery was found not functioning. The Complainant has placed his grievance for the same before the Opposite Party No.2(two) requesting him to replace the battery as the same is well within the period of warranty by then but the Opposite Party No.2(two) instaed of solving the problem deferred the matter for month on different pleas.
It is seen that even after sending of pleader Notice, no parties have replied the same who are well responsible for the after sale service, that too the Opposite Party No.1(one) and Opposite Party No.2(two) have alleged against each other as to who would be saddled with the liabilities. The Opposite Party No.2(two) who is the manufacturing company taking a surprising plea that the warranty is void and is not operative if the difference between the date of manufacture and date of sale is more than three months, but during argument Opposite Party No.2 (two) has stated that he sells the battery which comes to him as he authorised dealer from the manufacturer, then to State Depo, then to Sambalpur Depo and lastly to the dealer i.e. to Opposite Party No.1(one). So the statement by O.P No. 2 that a long time has been taken to reach to the dealer from manufacturer is definitely correct. In the said case also the Opposite Party No.2(two) has also argued that, the date of manufacturing has not mentioned in the said battery. So it is also difficult to ascertain the period of warranty and guaranty. We perused and gone through the terms and conditions mentioned in the warranty card issued by Opposite Party No.2(two) where it is clearly mentioned about the date of sale of battery and also clearly mentioned at clause-9, that the warranty commences from the date of sale to the purchaser. Another letter dated 5.8.2010 issued by Exide Industries Limited the Area Manager, Sambalpur area office representing and authorized the company i.e. Opposite Party No.1(one) in this case clearly explained that the date of purchase of battery was on 7.4.2009 and the warranty expiry date was Dt.06/04/2010, that means the warranty period is one year.
In the warranty booklet, it is clearly mentioned at clause 5(five) and 6(six) “In the event of any complaint, the battery must be returned to the company's authorized dealer and wholesaler or depot and the right to determine whether a battery needs repair, rectification free replacement or pro-rate settlement rests with the company. So the Opposite parties have every responsibility to give after sale service to the customer after receipt of the complaint, as because it is within the warranty period, because the problem occur just after 3(three) to 4(four) months of its purchase which is also accepted by the Opposite Party No.2(two) in his version and the claim form also shows that when the defect was detected, the Complainant deposited the battery before the Opposite Party No.2(two) for cure of the same immediately and the letter dated 8.5.2010 issued by Exide industries limited clearly written that the warranty is for one year. On this point we rely on the decision reported in (Dr) Sathesh Kumar Vrs Asst. Manager, Service Marketing Department, Bajaj Tempo Limited 1998 (3) CPR 512 (SC) (Ker) where Hon'ble Supreme Court held that “When an engine is purchased and the engine is purchased and the engine has fundamental latent defects which could not be found out in the usual course of inspection the express warranty should not limit the buyer's right for damages for the latent manufacturing defect.
It is seen that,he Opposite Party No.1(one) only very cleverly shifted the sole responsibility by showing the clause-II (d) of the terms and conditions of the warranty card, but the forum feels that he has the responsibility to assist to the purchaser to proceed with the processes when grievance occur, because a purchase occurred with some hope and aspirations which are not full filled in the case of complainant and the purchaser, suffered from purchasing such type of battery from the Opposite Party No.1 Company. If the defect will be started just after five months of purchase only, how the people would have faith on this company, because the company should have to up keep its trust over the buyer.
Hence gross negligence and deficiency of service lies with the Opposite parties and they are liable jointly and severally to compensate the Complainant from what he suffered.
In the light of the fact and circumstance of the complaint and the nature of evidence placed before us we arrive at the conclusion that the battery in question was defective and needs replacement.
Hence it is ordered:-
The Opposite Parties are jointly and severally liable to replace the Exide brand battery in question by a new one of the same make with compensation of Rs.1,000/-(Rupees one thousand)only towards suffering within thirty days from the receipt of this order failing which the total awarded amount shall carry 12% interest till the final realization.
Accordingly case is allowed and disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree,
(Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera)
P r e s i d e n t. M e m b e r.
