DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.401 of 06-09-2010 Decided on 20-12-2010 Gurjit Singh Gill, aged about 60 years S/o Sh. Partap Singh, resident of Gali No.2, Bhagu Road, Bathinda, Tehsil and District Bathinda. .......Complainant
Versus M/s Balaji Battery House, Near Meenakshi Petrol Pump, Near Bus Stand, G.T.Road, Bathinda, through its Prop./partner. Excide House registered office 59-E Chowringhee Road, Kolkata-700020, through its M.D. Excide Industries Limited SCF-2, Phase-I, Opposite T.V. Tower, Model Town, Bathinda, through its authorized person.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member.
Present:- For the Complainant: Sh.Sukhraj Singh, counsel for the complainant. For Opposite parties: Sh.Vikas Gupta, counsel for opposite party No.1. Sh.Ashwani Kumar, counsel for opposite party Nos.2&3.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date(Here-in-after referred to as ’Act’). The brief facts of the complaint are that he purchased one Excide Inv Plus 1500 Battery bearing Sr.No.21876 from opposite party No.1 for a sum of Rs.8,150/- vide Invoice No.2010 on 14.08.2009 and the complainant had also given his old battery to opposite party No.1 worth Rs.1,550/-. The complainant alleged that after its purchasing, the said battery was not working properly. The complainant approached and requested many times to the opposite party No.1 to change the said battery as the same was within warranty period but they did not change or check the battery in question. The complainant also sent a legal notice dated 05.08.2009 to opposite party No.1, it duly received the same and gave a fake reply. On 25.08.2010, the complainant again visited the shop of opposite party No.1 and requested the opposite party No.1 to change the said battery but the opposite party No.1 did not listen to his request. Hence, the complainant has filed this complaint with a prayer to change or replace the said battery and to pay Rs.50,000/- as compensation. 2. The opposite party No.1 has filed its separate written statement whereas the opposite party Nos.2&3 filed their joint written statement. The opposite party No.1 has pleaded that the opposite party No.1 sold the Excide Battery to the complainant as per warranty and terms & conditions given by the company which were duly conveyed and supplied to the complainant at the time of purchase of battery. The opposite party No.1 further pleaded that on the complaint made by the complainant, the representative of opposite party No.1 visited the house of the complainant and on checking the battery, he requested the complainant to handover the battery in question to him so that he may sent the same to the company’s office for its checkup and inspection but the complainant refused to handover the battery, rather insisted the representative to give new battery and only then he would handover the battery in question to the representative of the opposite parties. As per terms and conditions of the company, this was not possible for the representative of opposite party No.1 to handover the new battery. Thereafter, the complainant visited the shop of opposite party No.1 and again insisted for giving new battery against the warranty claim but the opposite party No.1 showed its inability in this regard and the complainant was requested to handover the said battery and only then company after checkup and inspection would give him the claim. 3. The opposite party Nos.2&3 have pleaded that as per terms and conditions of warranty, the battery first of all would be checked by the Engineers of the opposite party Nos.2&3 and if, they find that there is any manufacturing defect, only then it can be replaced with fresh one. The complainant has never took the battery in question to the Service Centre i.e. opposite party No.3 for checkup/physical verification. 4. Parties have led their evidence in support of their respective pleadings. 5. Arguments heard. Record alongwith written submissions submitted by the parties perused. 6. The learned counsel for the complainant has submitted that the complainant has purchased one Excide Inv Plus 1500 Battery bearing Sr.No.21876 from opposite party No.1 for a sum of Rs.8,150/- vide Invoice No.2010 on 14.08.2009. The complainant had also given the old battery to the opposite party No.1 as such an amount of Rs.1,550/- was deducted and the complainant paid Rs.6,600/- for the battery. The Battery was within warranty of one year. The said battery started giving problem and the complainant requested the opposite party No.1 to change/replace the battery. On 05.08.2010, the complainant also sent a registered notice to the opposite parties and they have given a fake reply. The complainant again visited the shop of opposite party No.1 on 25.08.2010 and requested to change the battery. 7. The learned counsel for opposite parties has submitted that the representative of opposite party No.1 had visited the complainant’s house and on checking the battery, requested the complainant to handover the said battery, so that, he may sent that to the company’s office for its inspection and checkup but the complainant refused to handover the battery in question and insisted him to give a new battery. 8. The learned counsel for opposite party Nos.2&3 has submitted that the opposite party No.1 is a dealer and deals in the sale of batteries manufactured by opposite party No.2 and opposite party No.3 is a service centre. It is mandatory for each and every customer to take the defective battery to the Service Centre of the company as the battery is to be replaced after due checkup/physical verification by the Engineers of the company. The complainant had never taken the battery to the Service Centre i.e. opposite party No.3 for checkup/physical verification. They have also not received any notice from the complainant and pleaded that the complainant may be directed to take the battery to the Service Centre i.e. opposite party No.3 and after proper checkup/physical verification, necessary steps would be taken. 9. The complainant purchased the battery on 14.08.2009 from Balaji Battery House and paid Rs.6,600/- to the opposite party No.1 and also handed over the old battery worth Rs.1,550/-. The opposite parties have given one year warranty on the said battery. Approximately, after 11 months of purchase of the battery, it started giving problem as it was not working properly. Many times, it stopped working and the complainant approached and requested the opposite party No.1 to change the battery as the same was within warranty but the complainant has not handed over the said battery to the opposite parties for its checkup/inspection as asked by opposite party No.1. It was mandatory for the customers to take the battery to the Service Centre for its checkup/inspection but the complainant has never taken the battery to the Service Centre i.e. opposite party No.3 or handed over the same for its inspection instead, he kept on demanding the replacement of the said battery. The complainant has also sent a legal notice to the opposite parties. The opposite party No.1 has sent reply to the legal notice, Ex.C-7 and admitted the fact that he has sold the battery as per warranty, terms and conditions of the company which were duly conveyed/disclosed and supplied to the complainant at the time of purchase thereof and the complainant had purchased the battery after agreeing to the terms and conditions of the company and paid the bill amount to the opposite party No.1. The representative of opposite party No.1 visited the house of the complainant and on checking the battery, requested the complainant to handover the battery, so that, it may sent the same to the company for checkup/inspection but the complainant refused to handover the battery and insisted the representative of opposite party No.1 to handover the new battery. The complainant again went to the shop of opposite party No.1 and insisted for the change of the battery. The opposite party No.1 requested the complainant to handover the battery in question and after due inspection and checkup only, the battery can be changed/replaced with new one. 10. Sh.Sehadeva Singh on behalf of opposite party Nos.2&3 has deposed in his affidavit Ex.R-3 that as per terms and conditions of the warranty, the battery is to be checked by the Engineers of opposite party Nos.2&3 and if, any manufacturing defect would be detected only then, it would be replaced with new one and it is mandatory for all customers that if there is any problem in the use and operation of the battery, he may inform the service centre i.e. opposite party No.3 and take the defective battery to it and after checking the same, that defective battery would be replaced after due checkup/physical verification by the Engineers of the company. 11. In the present case, the complainant has failed to take the battery to the service centre i.e. opposite party No.3 and refused to handover the battery in question to the opposite parties. The opposite parties admitted that there are some defects in the battery but they cannot ascertain the defect without checkup and inspection which can be done only at their service centre. The battery is not working, is the admitted fact of both the parties but whether this defect is manufacturing defect or not, has not been determined as the battery has not been handed over to the opposite parties. In such circumstances, the complainant is not entitled for replacement of the battery. The support can be sought by the precedent laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled Classic Automobiles Vs. Lila Nand Mishra & Anr., 2010(2)CPC 67, wherein, it has been held that:- “Consumer Protection Act, 1986 – Sections 13(1)(c) & 2(1)(g) – Manufacturing defect – Onus to prove any manufacturing defect in vehicle lies upon complainant – Vehicle was brought to service station for repairs – Question of manufacturing defect was never raised – District Forum held dealer and manufacturer jointly liable to defects in vehicle – Entire liability was imposed on dealer by the State Commission – Appeal filed – Held, dealer cannot be made liable unless vehicle is sold on rule of principal to principal – Dealer had acted only as inter-mediatory between manufacturer and consumer – Dealer is not liable – In case liability of manufacturer, District Forum had not appointed any expert to check the point of manufacturing defect u/s 13(1)(c) of the Act – In the absence of expert opinion, it is difficult to hold that there was any manufacturing defect in the vehicle – Both the orders quashed – Revision allowed.” The complainant has also not placed of file any expert evidence to prove that there is any manufacturing defect in the said battery. In such circumstances, this complaint is partly accepted against opposite party No.3 with Rs.1,000/- as cost and compensation and dismissed against opposite party Nos.1&2. The opposite party No.3 is directed to repair the said battery. Compliance of this order be made within 30 days from the date of receipt of copy of this order. 12. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ’
Pronounced in open Forum (Vikramjit Kaur Soni) 20.12.2010 President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member
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