Orissa

Dhenkanal

CC/42/2014

Damayanti Mohanty - Complainant(s)

Versus

M/S. Bajaj Shivam & Others - Opp.Party(s)

13 Jan 2017

ORDER

BEFORE THE DIST.CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                C.C.Case No. 42 of 2014

Damayanti Mohanty, W/o late Sudhakar Mohanty,

Mohanty Sahi, Durga Bazar, Dhenkanal                          …….Complainant                

                                                                Versus

1) M/s Bajaj Shivam,

     Autho Dealer of Bajaj Motor Cycle

     At: Hata Road, Dhenkanal

2) Service Department,

     Bajaj Auto Limited

      Akrudi Pune-411035, India                                         ……….Opp. Parties

Present: Sri Badal Bihari Pattanaik, President,

                  Sri Khirod Kumar Pani, Member

                  Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant:  Satyaranjan Satpathy & Associates

                  For the  Opp. Party No.1 & 2 Purna Chandra Mishra

Date of  hearing argument:  09.01.2017

Date of order: 13.01.2017

                                                                                JUDGMENT

Sri Khirod Kumar Pani, Member

                In the matter of an application U/s 12 of Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service.

                1) Very briefly,  the case of the complainant is stated are that she has purchased one Bajaj Pulsar 220 SF Motor Cycle  for her son on 16.6.2012 from the Opp. Party No.1 on payment of consideration vide bill No. SB0056.  The vehicle was registered with Regional Transport Authority, Dhenkanal vide No. OR-06K-2463.  The starting system of the bike is with the switch and there is no facility of kick start for which the Battery attached with the vehicle would be of 12 volt- 9 AH as per the user’s manual of the vehicle provided to the complainant at the time of purchase of the vehicle.  After two months from the date of purchase, there was starting problem for which the son of the complainant had been to the service center of O.P.No.1 and on every occasion the O.P No.1 repaired the battery in the bike.  Lastly on 6.12.2013 when the vehicle could not start the son of the complainant went to the O.P.No.1 for repairing.  The mechanic of the O.P.No.1 found that there is inherent defect in Battery attached to the vehicle for which the vehicle did not start.  The battery is within the warranty period for which it was assured either to repair or replace with a new one within 5 days.  On 15.12.2013 when the complainant asked about the battery the O.P.No.1 told that they have handed over the same to M/s Prasanta Kumar Das, Exide Industries Ltd,   stating therein that there is pole tampering of Battery and serial No of the battery physically not matching with the warranty card.  The serial No. in warranty card is 2 CZ856741 but in battery it is mentioned 643.057065.  In the User’s manual the type of battery is 12V-9Ah but the letter dt. 9.12.2013 of Exide Industries shows 12MF5L-B as such there is irregularities regarding the power of battery.  Therefore, the battery supplied by the Opp. Party with the vehicle is 12MF5L-B which is less than the approved capacity for the vehicle.  The Opp. Parties knowingly have sold the vehicle with the battery 12MF5L-B instead of 12V-9AH which amounts to unfair trade practice on the part of the Opp. Parties.  Due to supply of sub-standard equipment i.e. battery the complainant faced a lot of problem for starting the vehicle.  As the battery is the only option for starting the vehicle the complainant could not run the vehicle since 6.12.2013.   As the O.Ps did not take any steps on receipt of complaint for replacement of a new battery the complainant sent one advocate notice on 12.1.2014 demanding a sum of Rs. 90,762/- the cost of the vehicle with interest @12% per annum from the date of purchase till its refund.  Besides, the complainant also claims compensation of Rs. 50,000/- towards unfair trade practice and deficiency in service along with cost of the litigation of Rs. 10,000/-.  The contents of the petition are supported by affidavit.

2)            The Opp. Parties appeared and filed written version.  It is in the version of the Opp. Parties that the case is not maintainable.  The complainant has suppressed the actual truth for which she is to be punished U/s 26 of the C.P. Act.  There is no cause of action to file the present case.  The case is also barred by limitation.  The case has been filed after the warranty period of two years expire on 15.6.2014 for which the case is not maintainable.  It is admitted that the complainant came with the complaint only on 6.12.2013 for the first time.  The vehicle in question was sold to the complainant with the battery bearing No. 2Cz856741 which is clearly mentioned in the sale invoice as well as in the warranty card of the battery.  The service center of Exide Industries Ltd by mistake issued that letter to the complainant which was subsequently clarified to the complainant by Exide Industries Ltd.   At no point of time any substandard low power battery was attached to the bike for which the allegation of the complainant regarding running time and again to the show room is false and denied.  It is admitted that the vehicle was brought to the show room of the O.P.No.1 on 6.12.2013 at 12.15 pm with the complaint of “self not working”. On examination it was detected that due to poor charging of the battery and lack of current the self-starter is not working.  As the complainant alleges manufacturing defect, she was advised to make the claim to Exide Industries as per the terms of warranty of the battery.  After some days the claim of the battery was rejected as it was beyond warranty period and after receipt of the copy of rejection letter the O.P noticed that the battery no. is not matching with the battery no of the bike and thereafter immediately contacted the service center of Exide Industries Ltd and the error was rectified and clarified that the mistake was a clerical error only.  But the complainant was provided with a new battery of same quality and power by O.P.No.1 as a good will gesture even though she was not under obligation to do so.  When the complainant was provided with a new battery the allegation of the complainant is unwarranted and the case is liable to be dismissed.  The case is further liable to be dismissed for non-joinder of necessary party as M;/s Prasant Kumar Das, Exide Industries ltd has not been made a party to the case. In absence of the manufacturer M/s Exide Industries Ltd the case cannot be adjudicated properly.  The defect in a battery is attributed to different reasons such as improper charging, improper maintenance and misuse/mishandling of the battery.   The complainant came with the complaint only on 6.12.2013 after a lapse of 18 months from the date of purchase of the bike.  The complaint is not supported by any expert opinion or report. Accordingly, it is pleaded to dismiss the complaint since there is no deficiency in service.  The contents of the written version are supported by affidavit.

                3) On the aforesaid pleadings of the respective parties following issues are framed for determination.

                1) Whether the filing of the case is time barred and maintainable?

                2) Whether there has been any deficiency in service?

                3) Whether there has been any unfair trade practice?

                4) If so, to what relief, the consumer is entitled?

4) Issue No.1

                From the documents attached, it appears that, the consumer is an inhabitant of District of Dhenkanal and the business location of O.P.No.1 is also at Dhenkanal proper and as such the status of the complainant as a bonafide consumer is upheld.  Moreover the defect of the battery was reported to the O.P.No.1 by the complainant on 6.12.2013 within one calendar year from the date of purchase, i.e. 17.6.2012, and the grievance of the complainant was continuing due to non-replacement.  The case was filed in this Forum for adjudication on 10.7.2014 which is within two years period from the date of the cause of action i.e. 6.12.2013 and therefore not time barred and maintainable in this Forum.

5) Issue No. 2 & 3

                Since both the issues are very much linked up with each other those are taken up jointly for discussion and findings.  It appears that a dispute brewed between the complainant and O.P.No.1 over the number and make of the batter.  But from the averments made by the O.P.No.1 in their written version, it is revealed that the consumer was provided with a new battery of same quality and power by them, which was never disputed by the complainant at a later stage.  Further, from the Job Card dt. 12.3.2016, it appears that, the complainant has undertaken paid repairs after availing regular free services indicating that, the vehicle was never stranded due to defective battery and running smoothly with the battery provided by the O.P.No.1 may be as a good will gesture.  Hence no deficiency in service is observed on the part of the O.P.No.1 as he has tried to comply and satisfy the complainant to the best of his abilities and scope.  Since the complainant has not roped in the manufacturer as a necessary party, they cannot be booked for deficiency of service or unfair trade practice and O.P.No.1 is clearly absolved of such charges of deficiency  and unfair trade practice through his good will gesture in replacing a battery of same power and make.

6) Issue No.4

                In view of the aforesaid discussions, we are of the opinion that the complainant is not entitled to any relief as prayed for more particularly when there is no deficiency in service on the part of the Opp. Parties.  Hence ordered.

                                                                        ORDER

                The consumer complaint filed by the complainant is dismissed on contest in the light of the observations made in the preceding paragraphs.  In the peculiar facts and circumstances parties are left to bear their own cost.

 

(Miss Bijayalaxmi Satapathy)        (Badal Bihari Pattanaik)       (Khirod Kumar Pani)

            Member                                           President                           Member