DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.69/29.05.2008 Decided on : 17.12.2008 Lakhwinder Singh S/o Sh.Hans Raj, Ward No.18, Near Mangu Lohewala, Gaushala Road, Tehsil and District Mansa. ..... Complainant. VERSUS 1.M/s Mehta Motors, Bibiwala Road, Bathinda, through its Manager/ Proprietor/Partner. 2.M/s Bharat Motors, Near old Bus Stand, Bathinda, through its Manager/ Proprietor/Partner. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.K.Singla, Advocate counsel for the complainant. Sh.S.K.Mehta, Advocate counsel for the Opposite Party No.1. Sh.Robin Kumar, Advocate counsel for Opposite Party No.2. Before: Sh.Pritam Singh Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- The instant complaint has been filed by Sh.Lakhwinder Singh, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), on the averments, which may, briefly be described, as under:- That the complainant is a resident of the town of Mansa. He purchased Indica Car bearing registration No.PB31E 9028, Chassis No. 607154 ESZP 77058 and Engine No.475 IDT 14 DSZP 70391 from M/s Mehta Motors, Bathinda i.e. Opposite Party No.1, on 29.05.2007, for personal use. The car in question, was purchased, by the complainant, along with, Exide battery No.2D 7101192. The Opposite Party No.2 i.e. Contd........2 : 2 : M/s Bharat Motors, Bathinda, is the dealer of Exide Company. The OP No.1 gave warranty, for a period of one year qua, the parts of the car and its battery, which developed defect. The complainant approached OP No.1, on 1.5.2008, during the period of warranty and asked for replacement of battery. After checking the battery, the OP No.1, gave in writing, on 1.5.2008, that battery of the car of the complainant, is defective. He has asked the complainant, to approach the OP No.2, for replacement of the battery of his car. On 1.5.2008, the complainant approached the OP No.2, but, after checking the battery, he refused to replace the same, and told the complainant, that he shall have to approach the Companies, who supplied the car, and its battery. Since the defect in the battery, has cropped up, during the period of warranty, there is deficiency in service, on the part of the opposite parties. As the opposite parties, did not replace the defective battery, therefore, the other parts of the car, including the radiator, ACM and A.C.fan have also been damaged and the complainant, has suffered loss, to the tune of Rs.70,000/-. He has also undergone mental and physical harassment, on account of which, he is entitled, to receive compensation, in the sum of Rs.50,000/-. The complainant served notice, upon the opposite parties, on 6.5.2008, but inspite of receipt of the same, they have failed, to honour his claim, for replacement of the battery, and for payment of compensation. Hence the complaint. On being put to notice, the OP No.1 filed written version, resisting the complaint, by taking preliminary objections; that this Forum has no territorial jurisdiction, to entertain and try the complaint, because the car and the battery, have been sold, to the complainant, at Bathinda, and none of the opposite parties, carries on business, and has their local offices at Mansa; that the answering opposite party, neither manufactures nor sales the battery, and no guarantee has been given, to the complainant for functioning of the battery; that as per clause contained, in the booklet published by the answering opposite party, and supplied to the purchasers Contd........3 : 3 : of the cars, the dealer is not liable, for any defect, and the parts of the vehicle not manufactured by him, as such, there is no liability of the answering opposite party, to replace the battery, or to pay compensation, to the complainant; that the complaint, is not maintainable, because the company, which manufactures, the battery of the car i.e. M/s Tata Motors, has not been impleaded as party to the complaint, but the OP No.2 has been impleaded as party, unnecessarily and that complaint, being false and vexatious, is liable to be dismissed, with special costs. On merits, it is admitted, that complainant is resident of Mansa, and he has purchased the car in question, from the answering opposite party, along with its battery of 'Exide' Make. It is denied, that any warranty, has been given by the answering opposite party, to the complainant. It is also submitted that even if any defect, has been developed in the battery, the same is to be replaced by the company, which manufactures the same. It is also contended that factum of defect, has not been pointed out, by the complainant during the free services rendered by the answering opposite party. It is averred that the battery of a car is used for starting the vehicle and for generation of current from dynamo, but working of other parts of the vehile and the A.C. fans, MAC and radiator etc. does not depend upon the battery, as such, the damage to the remaining parts cannot be the result of defect in battery. It is denied that complainant has suffered any loss, on account of defect in battery or he has undergone mental and physical harassment. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the complaint, with costs. The OP No.2, filed separate written version, resisting the complaint, by taking preliminary objections; that complainant is not a consumer of the answering opposite party; that the complaint is bad for mis joinder and non joinder of necessary parties; no cause of action has accrued in favour of the complainant, to file the complaint; that complainant has filed, the instant complaint, to harass the answering opposite party, as such, Contd........4 : 4 : the answering opposite party, is entitled to payment of Rs.10,000/- from him as damages, for malicious prosecution. On merits, it is submitted that answering opposite party, has no concern with the controversy regarding the defect, in the battery or parts of the car, between the OP No.1 and the complainant. It is submitted, that the answering opposite party, even does not know, as to the nature of the battery, fitted in the car, purchased by the complainant. It is denied that complainant, has approached the answering opposite party, for replacement of the battery, on the advice of the OP No.1. It is further denied that, complainant has suffered any loss, due to damage caused, to the battery, or his car, or its parts thereof. It is asserted that the defect in the battery, cannot cause damage, to the other parts of the vehicle, because they start functioning after the vehicle is started, with the help of the battery. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the complaint, with costs. On being called upon by this Forum, the complainant furnished his affidavit Ext.C-5 and tendered, documents Ext.C-2 to C-4 and Ext.C-6. On the other hand, the opposite parties, have tendered affidavit of Sh,.Amrit Pal Goyal and relevant page of Sales Manual containing terms and conditions of the warranty. We have heard the learned counsel for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. At the out set, the learned counsel, for the opposite parties, have jointly submitted, that, this Forum lacks territorial jurisdiction to entertain and try the complaint, because, both the opposite parties were carrying, on their business at Bathinda and no cause of action, has accrued in favour of the complainant, to file the complaint, at Mansa, as such, the complaint is not maintainable and is liable, to be dismissed, on this technical ground alone. Contd........5 : 5 : On the other hand, learned counsel for the complainant has submitted that the complainant is a resident of Mansa and he had purchased the vehicle for personal use at Mansa and his vehicle has been registered at Mansa, as evident from the copy of registration, Ext. C-4. Learned counsel has also submitted that defect in the battery had come to the notice of the complainant, within the jurisdiction of this Forum, as such, this Forum has jurisdiction to entertain and try the complaint. In support of this contentions, learned counsel has placed reliance upon 1997(I) CLT HP 568 Pradeep Kumar Khurana versus M/s Wheel World, Ambala Cantt. In this case, the complainant was resident of Poanta Sahib, in the State of Himachal Pradesh. He purchased a car from a dealer at Ambala, in the State of Haryana. The said car was registered in HP and was purchased, by the complainant, for use in the said state. The defect in the car developed, while the complainant, was on his way to Ambala on his car. It was held by the Hon'ble Commission, that cause of action had partly arisen, in the State of H.P., and it includes every material fact, which is necessary, to be proved, in order to support, his right to a judgment of the court, as such, Forum in HP has jurisdiction to entertain and try the complaint. We find merit, in the argument advanced by the learned counsel for the complainant. It is well settled law, that, cause of action, is bundle of facts, which taken together, give rise, to the complainant, to seek relief against, the opposite parties. It is not limited to the actual infringement of the right sued on, but also includes, all the material facts on which claim is based. Section 11(2) provides that a complaint under this Act shall be instituted, in a District Forum, within the local limits of whose jurisdiction: (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a Contd........6 : 6 : branch office or personally works for gain or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office or personally (c) work for gain, as the case may be, acquiesce in such institution; or the cause of action, wholly or in part, arises. Admittedly, none of the opposite parties, carries on business or has its office at Mansa. However, it is not disputed, that the complainant is resident of Mansa and he has purchased, the car from the OP No.1 for use at Mansa. The contents of the affidavit of the complainant, Ext.C-5, regarding the place, where he detected the defect, in his car have also gone unrebutted. Therefore, cause of action, in the present case has accrued, to the complainant, to file the complaint, and seek relief, partly at Mansa and partly at Bathinda, where the opposite parties, have failed to honour, his claim. The bare reading of Section 11 of the Act, as referred above, reveals that, as per Clause (c), the complaint can be filed by the complainant, where cause of action, accrued to him, in part. In the light of our above discussion and in view of the ratio of judgment delivered in the authority, referred above, and relied upon by learned counsel for the complainant, we have no option, but to hold that this Forum, has jurisdiction to entertain and try the complaint. At this stage, learned counsel for the complainant has drawn our attention, to letter dated 1.5.2008, Ext.C-2, written by the OP No.1 to OP No.2, to the effect, that car purchased, by the complainant, is not properly functioning, due to defect in its battery. Further direction has been given to the OP No.2 by the OP No.1, to check the battery and take Contd........7 : 7 : necessary action, to replace it, with new battery. Learned counsel has argued that, since defect, in the battery, has taken place, during the warranty period, therefore, the opposite parties, have no option, but to replace the same and to pay compensation sought by the complainant for defect in other parts of his car. Learned counsel has further argued that, as a result of defect in battery, the complainant had suffered mental and physical harassment, due to the in action on the part of the opposite parties to replace the battery, on being approached, for the purpose ,by the complainant and he was forced to knock the door of this Forum, as such, he is also entitled to claim compensation and costs from the opposite parties. On the other hand, learned counsel for OP No.1 has submitted that, as per terms and conditions, of the writing, the supplier of the car has no liability to replace its parts, which have been manufactured by other companies, as such, liability cannot be fastened, upon OP No.1. Learned counsel has also submitted, that battery of the car, is used for starting the engine, as such, no damage is possible, to other parts, due to defect in battery. Learned counsel has argued, that complainant is at liberty to approach the manufacturing company, of the battery of the car, but he has not even impleaded, the said company as party to the complaint, as such, his complaint is bad for non joinder of necessary parties and is liable, to be dismissed with costs. We express our inability to agr4ee with the learned counsel for OP No.1, because, as per terms and conditions of warranty, Ext.OP-1, warranty had been given by OP No.1 at the time of delivery, for a period of 18 months or 50000 kms. which ever occurs earlier. It is not disputed, that complainant has approached, OP No.2 on 29.5.2007 and OP No.1 on 1.5.2008, for replacement of the battery. As such, complaint has been filed within the warranty period. It is also provided in Clause 2 that obligation under this Warranty shall be limited to repairing or replacing, free of Contd........8 : 8 : charge, such parts of the car which are defective, if brought to the notice of dealers, within warranty period. However, in Clause 4 it is provided that, as far as, such parts like tyres, batteries, electrical equipment, fuel injection equipment etc., not manufactured by the manufacturer of the car, but supplied by other parties, warranty given to the buyers of the car would not apply, but they shall be entitled to, so far as permissible, by law, all such rights, as manufacturer of the car may have against such parties under their warranties in respect of such parties. We are of the considered opinion that, as there is no privity of contract between the complainant and the manufacturers of the battery , fitted in his car, therefore, complaint, filed by the complainant, cannot be said to be bad for non-joinder of companies which manufactured the battery. As such, OP No.1 has no option, but to replace the battery but may enforce the contract, if any, between it and the manufacturing company of the battery. As observed by us in the earlier part of this order, vide letter dated 1.5.2008, Ext.C-2, OP No.1 has written to OP No.2, that car of the complainant, is not properly functioning, because of defect, in its battery, as such, same needs replacement. This letter, has not been disowned, either in the written version or in the course of arguments, by the learned counsel, for the opposite parties. Therefore, defect in the battery of the car, of the complainant is apparent. Since defect has been noticed within the warranty period, therefore, OP No.1 cannot escape liability, to replace the battery. In case any cause of action has been accrued, by the complainant, against the manufacturing company, then it can proceed against the said company, but the complainant cannot be deprived of his right, to seek replacement, from the supplier of his car. However, it is well known, fact that role of the battery of the car is limited, to the extent of start of its engine and once engine is started, then functioning of the remaining components does not depend upon the battery. As such, we are unable to concede, to the plea of the complainant Contd........9 : 9 : that some other parts of his car, have also been damaged, because of defect of battery fitted, in his car and due to defect, in the functioning of the car, mental and physical harassment, has been suffered by him. Moreover, the complainant has not produced, on record any evidence, on the basis of which his plea may be accepted, by us that some other parts of the car have also been damaged, due to defect in the battery, fitted in his car. As per the facts borne on record, there is no contract between the OP No.2 and the complainant, so far as, replacement of the defective battery is concerned. Therefore, liability cannot be fastened upon OP No.2, merely, because, OP No.2 is 'dealer' of batteries, whose services are being availed by OP No.1. Therefore, OP No.2 has no liability to either replace the battery or to pay compensation Keeping in view the peculiar facts and circumstances of the case, we have come to an irresistible conclusion, that complaint filed by the complainant, for replacement of the battery fitted in his car is bound to succeed, against Opposite Party No.1, but is liable to fail against Opposite Party No.2. For the aforesaid reasons, we accept the complaint and direct OP No.1 to replace, the battery fitted, in the car of the complainant, within a period of one month, from the date of receipt of the copy of this order. The OP No.1 is also burdened, in the sum of Rs.2,000/- for mental and physical harassment, suffered by the complainant, due to delay in providing him requisite relief and also to pay costs of litigation, in the sum of Rs.1000/- within the period stipulated above. The copies of the order be supplied to the parties free of costs, as permissible under the rules. File be indexed and consigned to record. Pronounced: 22.12.2008 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
