O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking replacement of inverter battery; compensation of Rs.50,000/- and costs of Rs.2,000/-.    

2.      The averments of the complaint in brief are these. 

          The 3^rd opposite party is manufacturer of excide battery.  The complainant on 14-02-11 purchased inverter and stand tubular battery for Rs.16,500/- from the 1^st opposite party.  The 1^st opposite party for the reasons best known to him issued bill in the name of the 2^nd opposite party.  Staff of the 1^st opposite party installed the battery and inverter on 14-02-2011.  The period of warranty is 36 months from the date of purchase.  The complainant faced problems in the inverter battery after the installation and there upon intimated the same to the 1^st opposite party.  The 3^rd opposite party after receiving complainant sent service engineer who in turn on             20-09-13 attended to the battery.  Service engineer of the 3^rd opposite party informed that the battery model 6STP100 battery capacity 100AH was installed after expiry of the period and the inverter has been expired.  Service engineer of the 3^rd opposite party informed that the battery purchased on 14-02-11 meant for industrial purpose and cannot be used for domestic purpose.  The opposite parties 1& 2 are quite aware that the complainant purchased the instrument for domestic purpose and it has to be installed along with the battery within six months from the date of manufacturing.  Suppressing the date of manufacturing the opposite parties 1 & 2 fraudulently sold the instrument to the complainant.  The complainant informed the same to the 1^st opposite party.  The complainant on 21-01-14 issued notice to the opposite parties to replace the battery of the inverter which was installed after expiry period.  The opposite parties are liable to pay compensation to the complainant for not utilizing the instrument for about four months.  The complainant suffered a lot physically as well as mentally.  The opposite parties though received notice kept quite.  The above act of the opposite parties amounted to deficiency in service.  The complaint therefore be allowed.              

3.      The 1^st opposite party was set exparte for not complying the conditional order passed in I.A.163/14.

4.      The 2^nd opposite party was set exparte on 16-04-14 for his non appearance. 

5.      The contention of the 3^rd opposite party in brief is here under: 

          The battery purchased by the complainant is having warranty of three years, if there is any defect in the battery during the warranty period the authorized service engineer inspects the same and after conducting necessary tests if defect is found in the battery then the same will be replaced with the same warranty conditions.  Soon after receipt of complaint from the 1^st opposite party service engineer of the 3^rd opposite party inspected the battery and found that the battery was not properly maintained and water levels of the battery were not properly maintained and it caused reduction in efficiency of the battery.  The service engineer after filling acid water cautioned the complainant to maintain battery properly.  The complainant failed to take minimum precautions in maintaining the battery properly.  The service engineer of the 3^rd opposite party observed that the complainant applied heavy load to the battery.  Though the batter is meant for fans and lights in case of failure of electricity the complainant used the battery for the entire house and it diminished the efficiency of the battery.  After some time the complainant again lodged a complaint.  The complainant did not allow service engineer of the 3^rd opposite party to inspect the battery with a fear that truth will come out.  The warranty is void if the battery is not properly maintained or tampered with or if it is mis-handled.  The complainant himself maintained the battery without having knowledge of the same and did not allow the service engineer to inspect the battery.  The complainant purchased the battery on 14-02-11 and the warranty expires on 13-02-14.  The complainant used the battery for about 30 months.  The complainant came up with a false story to have new battery.  In the instance case the battery is working properly and giving backup more than three hours.  The 3^rd opposite party did not commit deficiency in service.  The complainant therefore be dismissed.                

6.  Exs.A-1 to A-7 are marked on behalf of the complainant and No documents were marked on behalf of the 3^rd opposite party.        

7.   Now the points that arose for consideration in this complaint are:

          1. Whether who among the opposite parties committed deficiency in service?

          2. Whether the complainant is entitled to compensation?

          3. To what relief

8.    The complainant on 15-09-14 along with memo filed two documents i.e., letter dated 08/09/14 addressed to the Manager, Excide Industries Limited along with postal receipt; another  letter dated 13/08/14 addressed to the Manager, SF Industrial Standard  Furukana Division (Industrial) Kolkata dated 13-08-14 along with postal receipt and acknowledgment.  Both those letters were addressed during pendency of this complaint.  

9.      The complainant filed this complaint on 19/02/14 along with Ex A1 to A-7 only.  But the complainant for the reasons best known to him on           15-09-14 after hearing the case and posting the case for orders filed two documents i.e., letter dated 08/09/14 addressed to the Manager, Excide Industries Limited along with postal receipt and another letter dated 13/08/14 addressed to the Manager, SF Industrial Standard Furukana Division (Industrial) Kolkata dated 13-08-14 along with postal receipt and acknowledgment.  The contesting opposite party has no opportunity of perusing those documents.  Regulation 7 (2) of the Consumer Protection Regulations, 2005 states that every complaint shall clearly contain particulars of dispute and the relief claimed and shall also be accompanied by copies of such documents as are necessary to prove the claim made in the complaint.  The complainant is quite aware of the deficiency in service coined against the opposite parties.  The complainant though not adhered to the above Regulation ought to have filed those documents atleast before the conclusion of arguments.  As the contesting opposite party has no opportunity to counter them the documents filed on 15-09-14 by the complainant cannot be considered. 

10.   POINT No.1:-  The complainant alleged deficiency of service in paras 1&2 of his complaint.  The relevant portion is extracted below for better appreciation. 

          “The 3^rd opposite party after receiving the complaint No.SAHO 10049, the service Engineer attended the inverter on 20-09-13 and thoroughly verified and informed that battery model 6STP100 battery capacity 100AH was installed by them after expiry of the period and the inverter have been expired. 

          2.    As per the information furnished by the 3^rd opposite party that the battery which was established by opposite parties 1 & 2 is being utilized for industrial purpose and cannot be used for domestic purpose and opposite parties 1&2 having knowledge that the instrument was purchase for domestic purpose may be having total knowledge that the instrument installed along with the battery has to be installed within 6 months from the date of manufacturing.  Suppressing the date of manufacturing opposite parties 1&2 have fraudulently have sold the instrument to the complainant who was not having any knowledge regarding the instrument.  The complainant approached the 1^st opposite party and informed regarding the rejection of the complaint by 3^rd opposite party that there is a total misleading and default committed by the 1^st opposite party.” 

11.    The complainant mentioned the same in Ex.A-4 notice dated            21-01-14 addressed to the opposite parties.  The above averments leads us to infer that the opposite parties 1&2 knowingly sold the battery under           Ex.A-1 for domestic purpose which was meant for industrial purpose.  In Ex.A-3 dated 20-09-13 it was mentioned that complaint was rejected due to delay of installation and wrong application.  Ex.A-3 was signed by the complainant on 20-09-13. 

12.    Burden is on the complainant to prove that the opposite parties 1&2 under Ex.A-1 sold the battery meant for industrial purpose that too after expiry of the installation period for domestic purpose.  The complainant either in his complaint or affidavit or in Ex.A-4 notice did not mention when he made complaint to the opposite parties about the non performance of the battery.  Even in Ex.A-3 also the date of complaint was kept blank.                      In Ex.A-4 notice the complainant mentioned the following :

      “As per the warranty the period of warranty is 36 months from the date of purchase i.e., 14-02-11.  After installation of the inverter by your staff there took the problems in the inverter battery.  Immediately my client communicated the same to No.1 among you.  Thereby No.1 among you gave particulars of No.3 among you.  After receiving the information of service station my client gave information to No.3 among you regarding the repair and problem which took place in the inverter battery purchased from you.  No.3 among you after receiving the complaint No.SAHO 10049, the service engineer attended the inverter on 20-09-13 and thoroughly verified and informed that battery model 6STP100 battery capacity 100 AH was installed by both of you after expiry of the period and the inverter have been expired”.

13.    It is not the case of the complainant that he did not use the inverter battery till 20-09-13.  In the absence of material particulars it has to be inferred that the complainant used the inverter battery from the date of purchase till 20-09-13 i.e., for a period of 32 months as per averments made in para 3 of the complaint.     

14.    The complainant neither filed any document to prove the coined deficiency in service nor took any steps to discharge his burden.   In the absence of cogent and convincing proof regarding deficiency in service coined by the complainant we are of the considered opinion that the opposite party did not commit deficiency in service.   We therefore answer this point against the complainant. 

15.   POINT NO.2:-   In view of our findings on point No.1 the complainant is not entitled to any compensation and answer this point also against the complainant.    

16.   POINT NO.3:- During the course of arguments the 3^rd opposite party filed memo giving notice to the complainant to the following effect :

         It is submitted that the Honourable Court may be pleased to appoint an expert engineer to inspect the Battery and assess the condition of the battery and to submit his report to the effect that there is any defect in the battery and whether the same can be rectified or not and if the same can be rectified, this opposite party is ready to rectify the defect in the battery or otherwise, this 3^rd opposite party is ready and willing to replace the battery or pay the prorate amount, as directed by this Honourable Forum. 

16.    After that memo this Forum adjourned the matter twice as requested by the both parties.  Inspite of that the complainant more particularly did not name any expert engineer to inspect the battery and assess the condition of the battery for the reasons best known to him. Ordering payment of prorata amount to the complainant under the above circumstances will meet ends of justice in our considered opinion.  Ex.A-1 bill did not disclose the value of inverter and battery separately.  Under Ex.A-1 the complainant paid Rs.16,500/- to the opposite parties 1&2.  Considering the usage of inverter battery by the complainant from the date of purchase i.e., more than 30 months directing the opposite parties to return Rs.2,750/- (Rs.16,500-13750= Rs.2,750/-) will meet ends of justice. 

17.    POINT NO.3:- In the result the complaint is partly allowed without costs directing the opposite parties to pay Rs.2,750/- (Rupees two thousand seven hundred and fifty only) to the complainant together with interest @ 9% p.a. from the date of filing the complaint till payment.  The opposite parties are directed to pay the said amount within six weeks from the date of receipt of this copy of order. 

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 17^th  day of September, 2014.

MEMBER                                 MEMBER                                          PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:- NIL

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.