Punjab

Ludhiana

CC/13/749

Balbir Chand - Complainant(s)

Versus

Exide Industries Ltd - Opp.Party(s)

30 Jan 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

       C.C. No: 749 of 01.10.2013

                                                                      Date of Decision:30.01.2015

Balbir Chand son of Shri Laxmi Chand, resident of Hoshiara Patti, village Rampur, Near Doraha, District Ludhiana.  

……Complainant

                                                    Versus          

1.Exide Industries Limited, Plot No.31,1140/3, Mundian Kalan, Chandigarh Road, Ludhiana-3, through its Managing Director.

2.M/s Manohar Motor Garage, G.T.Road, Near Telephone Exchange, Doraha, District Ludhiana through its Proprietor Shri Harinder Kumar.

                                                                                   ……...Opposite Parties

        Complaint under section 12 of the Consumer Protection Act,1986.

         

Quorum:     Sh.R.L.Ahuja, President.                 

                   Sh.Sat Paul Garg, Member.             

                                       

Present:       Sh.Satinder Sehgal, Adv. for complainant.

Sh.R.K.Sooden, Adv. for Op1.

Sh.Ranpreet Singh, Adv. for OP2.

 

ORDER

R.L.AHUJA, PRESIDENT

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after in short to be described as ‘Act’) has been filed by Sh.Balbir Chand(hereinafter in short to be referred as ‘complainants’) against Exide Industries Limited, Plot No.31,1140/3, Mundian Kalan, Chandigarh Road, Ludhiana-3, through its Managing Director and others(herein-after in short to be described as ‘Ops’)- directing them to pay a sum of Rs.50,000/- as compensation on account of deficiency in service and replacement of the new batteries and Rs.5500/- as the legal expenses to the complainant.

2.                In brief, the case of the complainant is that the complainant purchased four Exide batteries having Sr.No.B.P.1A3-108795, IA3-134983, 1L2-121177 and 1L2-242273 from the OP2 vide invoice No.200 dated 4.6.2013 for Rs.9600/-. These batteries were required immediately for personal use, which were fitted by OP2 in the scooter of the complainant on payment of Rs.9600/- by the complainant in cash qua the purchase of the aforesaid batteries to OP2. As per warranty card issued by the Ops, the warranty was 24 months. Immediately, after the purchase of the batteries, the batteries were not giving desired results as they were not giving full backup. The complainant brought this fact to the notice of OP2, who checked the batteries but it did not give the desired result and it was on 18.9.2013, the batteries were handed over to the Ops for replacement. Thereafter, vide letter dated 20.9.2013, the OP1 returned all the four batteries to the complainant vide their report that improper fitment. The batteries were fitted by the mechanic of OP2 in the vehicle. It appears that the Ops are conniving with each other and are selling old repaired batteries by telling the same to be new one of exide make. This practice of Ops has caused mental tension to the complainant as it is having some manufacturing defects or the old used one. The complainant purchased the batteries for the proper running of the battery vehicle as the batteries are not working properly, thus, the Ops are bound to replace the batteries because the same are under warranty for 24 months from the date of purchase. Even the warranty period has not been expired till date. Despite repeated visits and requests made to the Ops to replace the batteries, Ops failed to do so. Hence, this complaint.

3.                Upon notice of the complaint, OP1 and OP2 were duly served and appeared through their respective counsels and filed their separate written replies.

4.                OP1 filed the written reply through Sh.R.K.Sooden, Advocate, in which, it has been submitted in the preliminary objections that the present complaint is not maintainable at all in the present form. The complainant has not made the Headoffice of Exide Industries Limited as party to the complaint , as such, the complaint is bad for mis-joinder and non-joinder of necessary parties. Neither the complainant had purchased batteries directly from the answering OP1 nor there is any nexus of contract between the complainant and answering OP1. There is no manufacturing defect in the batteries sold by the OP2 to the complainant. Rather, the OP2 negligently and without proper care and caution fitted batteries in dispute in the electric scooter of the complainant as the battery is not meant to be used in electronic two wheeler scooter, due to which, the batteries did not give desired results as alleged by the complainant. As such, there is no fault on the part of the answering OP1 and no case is made out against the answering OP. The batteries type BP 32 R (MF) are meant for specific purposes and used for only four wheeler and three wheeler and not for electric two wheeler scooters. The fitment of batteries in scooters is negligent part on the part of the OP2, as such, answering OP is not liable for any loss or damage, if any occurred to the complainant. On merits, it is submitted the Exide Industries Limited gives guarantee only if batteries in dispute are installed in cars/four wheelers  or three wheelers and not for two wheelers. The disputed batteries are sold by the OP2 and due to the negligent act of answering OP1, they have wrongly installed the dispute batteries in electric scooter. It is denied that the answering OP sold old repairing batteries by telling the same to be new one. Further, it is denied that the answering OP is bound to replace the batteries. Rather, OP2 wrongfully installed the disputed batteries in electronic scooter which is not meant for two wheelers. There is no manufacturing defect in the batteries. There is no warranty period given by the company if the disputed batteries are fitted in the electric two wheelers. At the end, denying any deficiency in service and denying all other allegations of the complaint, answering OP prayed for the dismissal of the complaint.

5.                Op2 filed the separate written reply through Sh.Ranpreet Singh, Advocate, in which, it has been submitted in the preliminary objections that the complainant has purchased the batteries for commercial use and purposes and as such, the complainant does not fall within the ambit of the Consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Thus, this Hon’ble Forum has no jurisdiction to entertain and try this complaint. The complaint of the complainant is not maintainable as the complainant has not come to this Hon’ble Forum with clean hands and has suppressed the material facts from this Hon’ble Forum. The answering OP had delivered the genuine batteries to the complainant. If some fault appears in the batteries, it has to be replaced by the OP1 as the answering OP is only the dealer of OP1. The complainant never approached the answering OP qua the alleged problem in the batteries as he himself proves the answering OP is only the authorized dealer. Furthermore, the complainant purchased the batteries but he has not disclosed that the same are not to be used in vehicles or for other purposes. On merits, it is denied that the batteries were fitted by the answering OP. However, it is admitted that the complainant had purchased the four batteries from the answering OP but he has not disclosed that the same will be used for what purposes. However, it is submitted that the answering OP had delivered the genuine batteries to the complainant and if any fault appears in the batteries, it has to be sorted out by the OP1. All other allegations levelled by the complainant against the answering OP is claimed to be false and concocted on the ground that the answering OP sold the packed batteries and thereafter, the answering OP has no knowledge about the same. The alleged manufacturing defects if any, proved in the batteries is the liability of the OP1. The alleged warranty for 24 months from the date of purchase is the liability of the OP1. The only function of the answering OP is to sell the batteries thus, there is no question of causing any suffering by the answering OP to the complainant. At the end, denying any deficiency in service and denying all other allegations of the complaint, answering OP prayed for the dismissal of the complaint.

6.                In order to prove the case of the complainant, learned counsel for the complainant tendered into evidence affidavit of complainant as Ex.CA in which, he has reiterated all the allegations made by him in the complaint. Further, learned counsel for the complainant has proved on record the documents Ex.C1 to Ex.C10.

7.                On the other hand, in order to rebut the case of the complainant, learned counsel for the OP1 adduced evidence by placing on record affidavit Ex.DA of Sh.Anil Kumar, its Service Officer, in which, he has reiterated all the contents of written reply filed by OP1 and refuted the case of the complainant. Further, learned counsel for the Op1 has proved on record documents Ex.D1 to Ex.D5.

8.                On the other side, in order to rebut the case of the complainant, learned counsel for the OP2 adduced evidence by placing on record affidavit Ex.RA2 of Sh.Harinder Kumar, its Proprietor, in which, he has reiterated all the contents of written reply filed by OP2 and refuted the case of the complainant.

9.                We have heard the learned counsel for the parties.

10.              Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the allegations made by in the complaint and further, it has been submitted that after the purchase of the batteries, the same were not giving full backup and when the complainant brought this fact to the OP2 and handed over the same on 18.9.2013 for replacement. However, vide letter dated 20.9.2013, the OP1 returned all the four batteries to the complainant that there was not proper fitment. The batteries were not fitted by the mechanic of OP2 and both the Ops have collided with each other and it appears that the complainant was sold old repaired batteries instead of new one exide batteries. The batteries are not working properly and the Ops were under obligations to replace the same as the batteries are within the warranty period of 24 months. The complainant approached the Ops number of times but with no result, due to which, the complainant has suffered mental agony as he had supplied defective batteries after repair and he was charged for brand new batteries.

11.              On the other hand, learned counsel for the OP1 has contended that the present complaint is not maintainable as the complainant has not made the head office of the Exide Industries Limited as party to the complaint. Further, it has been contended that there is no manufacturing defect in the batteries sold by the OP2 to the complainant. Rather, the OP2 had negligently and without proper care and caution fitted batteries in the dispute in the electric scooter of the complainant as the battery is not meant to be used in the electronic two wheeler scooter due to which, the batteries did not give the desired result, as such, it has been contended that there is no fault of the OP1 and no case is made out against the OP1. The batteries type ‘BP 32 R(MF) are meant for specific purposes and used for only four wheelers and three wheeler and not for electric two wheeler scooters. The fitment of batteries in scooters is negligent on the part of OP2, as such, Op1 is not liable for any loss, if any, suffered by the complainant.

12.              Similarly, learned counsel for the Op2 has contended that the complainant had purchased the batteries in question for commercial use and purposes, as such, the complainant does not fall under the definition of Consumer Protection Act, 1986. The complainant has never approached the OP2 when his batteries giving the alleged defect and Op2 is only the authorized dealer of OP1. As such, there is no deficiency in service on the part of OP2.

13.              We have gone through the written arguments filed by the learned counsel for the complainant and have also considered the rival contention of learned counsel for the OP1 and OP2 and have also perused the record on the file very carefully.

14.              Perusal of the record reveals that it is an admitted fact on record that the complainant had purchased the four batteries in question from Op2 vide invoice No.200 dated 4.6.2013 for Rs.9600/- which is evident from document Ex.C1. Further, it is an admitted fact on record that the batteries in question were fitted by OP2 in the scooter of the complainant on payment of Rs.9600/- by the complainant in cash qua the purchase of the aforesaid batteries to OP2. As per warranty card issued by Ops, the warranty was for 24 months and after the purchase of the batteries in question, the same were not giving the proper and desired results as the same were not giving the full backup, as a result of which, he approached the Ops for replacement.

15.              Though, Op1 did not deny the sale and fitting of the batteries in the vehicle of the complainant. However, Ops have taken the plea that these batteries are meant for three wheelers and four wheelers and the batteries in dispute were fitted by Op2 in the two wheeler of the complainant and there is no warranty of the product in the negligently use of the product.

16.              Since, it is proved fact on record that the batteries in dispute were manufactured by Op1 which were purchased by the complainant from OP2, who is the dealer/selling agent of OP1 and it is also an admitted fact that these batteries were fitted by the OP2 in the vehicle of the complainant and it was the OP2 to see at the time of selling the batteries in dispute to the complainant whether the same were meant for vehicle of the complainant or not? If OP2 had the knowledge that these batteries in dispute can be fitted in the vehicle of the complainant, only then he had sold these batteries in question and fitted the same in the vehicle of the complainant. It is a well settled principle of law that the manufacturer is always liable for the acts of the agents. Since, OP2 was acting as a agent of OP1. So, OP1 cannot be escaped from their liability for the defects in the batteries in question, who is the manufacturer of the batteries in question.

17.              Hence, in view of the above discussion, the present complaint is allowed, as a result, we hereby direct the Ops to replace the batteries in question or in the alternative, to make refund of the amount of Rs.9600/- i.e. the price of the batteries in question. Further, Ops are burdened with compensation and litigation costs compositely assessed at Rs.3000/-(Three thousand only) to the complainant on account of mental pain and agony suffered by him. Order be complied within 30 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record room.

 

                   (Sat Paul Garg)              (R.L.Ahuja)

                                 Member                     President.  

Announced in Open Forum

Dated:30.01.2015

Gurpreet Sharma.