MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the OPs no.1 and 2 against order dated 13.7.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 186 of 2010.

2.            Briefly stated the facts of the case are that the complainant purchased battery base terminals BTP 1450 for a sum of Rs.7875/- from dealer (OP No.3) M/s New Soni Motors vide VAT Invoice No.228 dated 28.6.2009 manufactured by Base Corporation Ltd. The battery base terminal was having guarantee/warranty of 2 years from the date of its purchase. The above said battery base terminal became faulty in the month of December, 2009/Janurary, 2010 within a period of six months from the date of its purchase against which the complainant complained to the OP No.3 but OP No.3 asked the complainant to approach OP No.2 for rectifying the fault of the battery. The complainant contacted OP No.2 on 8.2.2010 and the OP No.2 deputed their Service Engineer, who visited the premises of the complainant on 8.1.2010 at 3.50 PM. After examining the battery, the Service Engineer of OP No.2 rejected the claim of repair/replacement of battery for the reason of PIP Discharge and informed the complainant that the battery supplied by OP No.3 was manufactured by the company in the month of July, 2008 and it was sold by OP No.3 on 28.6.2009, it means that the warranty period of the battery has expired and the complainant was not entitled for the replacement of the battery. The complainant sent a legal notice dated 13.1.2010 through registered AD to OPs but to no effect. It was submitted by the complainant that OPs while selling the battery to the complainant concealed the vital fact about the date of manufacturing of the battery and sold an old outdated out of warranty/guarantee battery to the complainant and passed it on as a new one. The above said act of Ops amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OPs No.1 and 2  and admitted that purchase of battery was made by the complainant from OP No.3 vide bill No.228 dated 28.6.2009 and the battery was sold to the dealer vide invoice No.201 dated 14.7.2008. It was pleaded that the warranty of the battery was valid for a period of one year for free replacement and for the second year, the customer was eligible for pro-rate discount for the replacement of the battery. In the present case, the date of dispatch was 14.7.2008 and it was pleaded that the warranty commences from 121^st day of company’s sale.   The warranty of one year for total replacement was upto October, 2009 and admittedly the defect in the battery was occurred in the month of December, 2009 i.e. after expiry of period of warranty for total replacement. It was submitted that OP No.3 intentionally misguided the complainant, firstly at the time of sale and secondly at the time of breakdown of the battery and as such, the OPs No.1 and 2 were not liable to replace the battery in view of the term of warranty.  It was further pleaded that the Service Engineer of the OPs No.1 and 2 visited the premises of the complainant on 8.1.2010 and this very act of attending the complaint on the same day by the Service Engineer shows the quality of service of the OPs No.1 and 2. After inspection, the Service Engineer told the complainant that the battery was not liable to be repaired/replaced in view of the fact that the one year warranty of replacement had already expired in the month of October, 2009. The Service Engineer also informed the complainant that OP No.3 had deliberately not informed the complainant about the actual date of start of warranty. It was submitted by OPs No.1 and 2 that there was no deficiency in service on their part and was helpless as the battery when inspected by the Service Engineer had totally outlived its life because of prolonged storage by the OP No.3 and secondly being in pip discharge condition. The OP No.3 who had played a fraud upon the complainant and intentionally concealed this fact from the complainant that the date of warranty is either the date of sale or from 121^st day of dispatch, whichever is earlier. Rest of the allegations leveled by the complainant in the complaint were denied and prayed for dismissal of the complaint with costs.

4.         Reply was filed by OP No.3 and admitted that the complainant had purchased the battery for a sum of Rs.7875/- and pleaded that there is no material on record to prove that there was defect in the battery as the complainant had failed to place on record any expert opinion. It was further pleaded that the relationships of the answering OP with OPs No.1 and 2 is principal to principal basis and if there was any manufacturing defect in the battery, the OPs No.1 and 2 were liable for the same. Hence, there was no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint.

5.         The parties led their evidence in support of their contentions.

6.         The learned District Forum allowed the complaint with a direction to OPs to refund the price of the battery i.e. Rs.7875/- to the complainant with Rs.5,000/- as compensation for mental agony and harassment and Rs.5,000/- as litigation expenses. The order was directed to be complied with by OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.12,875/- to the complainant along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 23.3.2010 till its realization besides costs of litigation.

7.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OPs No.1 and 2.  Sh.Indresh Goel, Advocate has appeared on behalf of appellants, Sh.R.M.Dutta, Advocate has appeared on behalf of respondent No.1 as none has appeared on behalf of respondent No.2.

8.         In appeal, it has been contended by appellants/OPs No.1 and 2 that the appellants being a multinational company of high repute have otherwise no cause or grudge against an individual customer which was argued before the learned District Forum. It was argued before the learned District Forum in the reply filed by the appellant as well as at the time of arguments that respondent No.2 is not a registered dealer/retained to sell the goods manufactured by the appellants and respondent No.2 had simply taken advantage of buying near to expired goods from the open market and befooled the respondent No.1/complainant as the appellants/OPs No.1 and 2 were never in picture since the date of dispatch from their manufacturing unit vide dispatch No.201 dated 14.7.2008 and that dispatch has made to one Sewak Traders, Mohali. The learned District Forum had all through been holding that the date of warranty as is the policy of the company and as pleaded and averred by the respondent No.1/complainant vide annexure C-2 with the complaint being the guarantee card clearly demonstrates that the warranty of the battery is counted from the 121^st day of dispatch from the manufacturers or from the date of sale to the individual customer whichever is earlier. The appellants/OPs No.1 and 2 would again like to draw the attention of this Commission to the relevant dates which are as under :-

i)         Date of dispatch from the manufacturer – 14.7.2008.

ii)        Date of sale by the respondent no.2 to respondent no.1 – 28.6.2009.

iii)       Start of warranty of one year in the present case as per clause II in annexure C-2 comes out to 14.11.2008.

iv)        Date of expiry of one year warranty – 13.11.2009.

v)         First complaint of respondent No.1 to the respondent No.2 – December, 2009.

vi)            Second complaint of respondent No.1 to the appellants – 8.1.2010.

            The above said data clearly shows that at the time of complaint, the role of the manufacturers i.e. the appellants/OPs No.1 and 2 were already over and negligence if any was on the part of respondent No. 2/OP No.3. The promptness of service on the part of appellants is clearly visible from the records of the case when the complaint of the respondent No.1/complainant was attended on the same day by the service engineer of the appellants but the service engineer was helpless as the battery was in total discharge mode being stored by the respondent No.2 for undue long time. The learned District Forum has failed to appreciate this fact and had erroneously taken a view that the legal notice was not replied by the appellants as the appellants have replied to the legal notices of respondents No.1/complainant and also respondent No.2/OP No.3. The learned District Forum failed to appreciate that the appellants had denied any kind of relation with respondent No.2/OP No.3 as it is not an authorized agent/dealer/distributor of the appellants and as such the appellants are even otherwise not responsible for any transaction done by the respondent No.2/OP No.3 qua the goods manufactured by the appellants/OPs No.1 and 2. In this regard, the learned District Forum has wrongly held in para No.4 of the impugned order that the relation between the appellants/OPs No.1 and 2 and respondent No.2/OP No.3 is on principal to principal basis. The learned District Forum in para no. 7 of the impugned order has held that the respondent No.2/OP No.3 has neither put up a notice board about the start of warranty of the battery nor it has appraised the respondent No.1/complainant with the dispatch letter of the appellants in his shop. It is submitted by the appellants/OPs No.1 and 2 that on both the above grounds, action was required on the part of respondent No.2/OP No.3 and the appellants/OPs No.1 and 2 have no role to pay in the shop of respondent No.2/OP No.3. It is submitted by the appellants/OPs No.1 and 2 that the dispatch of the battery from the appellants/manufacturers is always done in a sealed packing on which it is always earmarked specially about the date and month of manufacture and the guarantee card inspite the sealed packet to be given to the customer by the retailer as and when it is sold applying the equation of 121^st day or the date of sale whichever is earlier. Hence, the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

9.         We have perused the record and heard the learned counsel for the parties.

10.       The OPs No.1 and 2 contended that the learned District Forum has erred in concluding that there is a deficiency in service on the part of OPs No.1 and 2 along with OP No.3 and wrongly directed the Ops jointly and severally for the refund of the price of the battery i.e. Rs.7875/- to the complainant with Rs.5,000/- as compensation for mental agony and harassment and Rs.5,000/- as costs of litigation. Whereas the OPs No.1 and 2 being manufacturer of the above said battery are not at fault because as per the clause 2 of the terms and conditions of the warranty placed on record by the complainant which is as under :-

“2. Battery warranty commences from 121^st day from company sales date of consumer’s date of purchase which is earlier. “

            The learned counsel for OPs No.1 and 2 argued that the said battery was sold to the dealer vide invoice No.201 on 14.7.2008 , therefore, as per clause 2 the warranty of one year for total replacement was upto October, 2009. Admittedly, the defect in battery occurred in the month of December, 2009 i.e. after the expiry period of warranty for total replacement. In these circumstances, the OPs No.1 and 2 are not liable to replace the battery or to refund the amount of the battery as per the terms of the warranty and the learned District Forum has wrongly held liable the OPs No.1 and 2 jointly and severally along with OP No.3. It was further pleaded that when the complainant approached OP No.2 regarding the defect in the battery, immediately the engineer of the manufacturer checked the said battery and found that the battery had outlived its utility because of prolonged storage by OP No.3. Hence, there is no deficiency in service on the part of OPs No.1 and 2. It was averred that it was the duty of OP No.3 to inform the complainant about the actual period of warranty, not only this it was also the duty of the OP No.3 to disclose the correct date when the OP No.3 had purchased this battery from the manufacturer.  Moreover it was also argued that OP No.3 is not registered dealer/retailer of the OPs No.1 and 2. Hence, OPs No.1 and 2 are liable for the act of OP No.3 who had taken advantage of selling the battery to the complainant by purchasing it from the open market whose warranty was going to be expired very shortly. Not only this, the date of dispatch from the manufacturing unit of the manufacturer vide dispatch No.201 dated 14.7.2008 also shows that the dispatch was made in the name of Sewak Traders, Mohali and not in the name of OP No.3. Thus, the OPs No.1 and 2 are not at all liable and as such the liability if any to be determined that should have been of the OP No.3 as there is no relationship between the OP No.3 and that of OPs No.1 and 2.    With these points of arguments, the learned counsel for OPs No.1 and 2 prayed that the impugned order passed by the learned District Forum may kindly be set aside against the OPs No.1 and 2 and the liability fastened against them may kindly be quashed.

11.       The learned counsel for the complainant argued that admittedly the complainant purchased the above said battery from OP No.3 on 28.6.2009 for a sum of Rs.7875/- and the said batter was having guarantee/warranty of two years from the date of its purchase. The said battery became faulty in the month of December, 2009 within a period of six months from the date of its purchase against which the complainant complained to OP No.3 but OP No.3 asked the complainant to approach the OP No.2 for rectifying the fault of the battery. The said defective battery was duly inspected by the engineer of the manufacturer, who told the complainant that the battery had outlived its utility and the same cannot be repaired and the warranty of the above said battery has already been expired and therefore, the complainant is not entitled for the replacement of the battery. After knowing this fact, the complainant was left with no other alternative but to invoke the jurisdiction of the learned District Forum for the redressal of his grievance and the learned District Forum has rightly directed the OPs for the refund of the price of the battery along with other reliefs.

12.       After hearing the learned counsel for OPs No.1 and 2 and the complainant it has been observed by us that the learned District Forum has wrongly directed OPs No.1 and 2 along with OP No.3 to comply with the order jointly and severally. In our opinion as the OPs No.1 and 2 are not at fault, hence there is no deficiency in service on the part of the manufacturer i.e. OPs No.1 and 2. It is the OP No.3 who had sold an old outdated, out of warranty battery to the complainant and passed it on as a new one. Therefore, OPs No.1 and 2 are not liable for the replacement of the said battery or the refund of the amount along with OP No.3 as the warranty period of this battery has already been expired and the OP No.2 has also rendered the service to the complainant immediately and it has also not proved on file that the OPs No.1 and 2 had sold this battery to OP No.3. Rather, it is the OP No.3 who has indulged in unfair trade practice by selling almost a one year old battery, which was sold on 14.7.2008 by the manufacturer to some other dealer and not to OP No.3 whose warranty of one year for total replacement was upto October, 2009. There is nothing on the record which proves that the OP No.3 had purchased this battery being its dealer from the OPs No.1 and 2 i.e. manufacturer. Therefore, we have come to the conclusion that OP No.3 had sold the above said battery to the complainant on 28.6.2009 by purchasing it from the open market.

13.            Therefore, in view of the above discussion that there is no deficiency in service or unfair trade practice on the part of OPs No.1 and 2. Hence, the OPs No.1 and 2 are not liable to pay anything to the complainant out of the liability fastened by the learned District Forum against all the OPs. We are of the view the whole of the liability should be fastened on the OP No.3 as he has indulged in unfair trade practice by supplying a old outdated battery to the complainant. Hence the appeal filed by the OPs No.1 and 2 is allowed and the liability fastened upon OPs No.1 and 2 along with OP No.3 is hereby quashed and we direct the OP No.3.

i)         To refund the price of the battery i.e. Rs.7875/-

ii)        To pay compensation of Rs.5,000/- for mental agony and harassment along with litigation expenses of Rs.5,000/-.

            The above said order is directed to comply with by OP No.3 within 45 days from the date of receipt of copy of this order, failing which interest @ 12% p.a. will be charged.

14.       Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                           

6^th December, 2010.