KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 230/2007

JUDGMENT DATED: 20.10.2011

PRESENT

SRI.M.V.VISWANATHAN     : JUDICIAL MEMBER

1. The Proprietor,                                      : APPELLANTS

    Ambika Battery Palace, Mavungal,

    P.O.Anandasram, Kanhangad.

2. M/s Excide Industries Ltd.,

    Exide House, 59.E.Chowinghee Road,

    Kolkata – 700 020.

(By V.M.Kurian)

                Vs.

Mundakkal Augustine,                                        : RESPONDENT

Residing at Mundakkal House,

PArakkadavu, Ranipuram.P.O.,

Panathady Village.

(By Adv.Tom Joseph)

JUDGMENT

SRI.M.V.VISWANATHAN     : JUDICIAL MEMBER

          The appellants are the opposite parties and respondent is the complainant in CC.No.177/05 on the file of CDRF, Kasargod. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in complying with the warranty conditions with respect to the automobile battery manufactured by the 2^nd opposite party and purchased by the complainant from the 1^st opposite party/dealer.

          2. The opposite parties entered appearance and filed written version denying the alleged deficiency in service.  They contended that the complainant did not purchase any battery from the 1^st opposite party/dealer and that the battery covered by the warranty was purchased by one Santhosh Kunnummel through his driver and the said purchase was effected on 15.12.03  and the warranty period of the  said battery had expired in October 2005.  They also disputed the case of the complainant that he purchased the subject battery on26.11.04 from the 1^st opposite party.  Thus, the opposite parties prayed for dismissal of the complaint.

          3. Before the forum below the complainant was examined as PW1 and Ext.A1 to A4 documents were marked  on his side.  On the side of the opposite parties a witness was examined as DW1.  Ext.B1 to B4 documents were also marked on the side of he opposite parties.  On an appreciation of the evidence on record,  the Forum below passed the impugned order dated 25^th October 2006 allowing the complaint in CC.177/05 and thereby the opposite parties are directed to replace the battery which is covered by Ext.A1 warranty card and to pay compensation and costs to the complainant.  Aggrieved by the said order, the present appeal is preferred by the opposite parties.

          4. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant.  We heard the learned counsel for the appellants/opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the complainant is not a consumer and that he has not purchased any battery from the opposite parties.  It is also submitted that the complainant manipulated Ext.A1 warranty card which was issued in the name of  another person.  He also relied on the documentary evidence adduced from the side of the opposite parties.  Thus, the appellants prayed for setting aside the impugned order passed by the Forum below.

          5. The complainant as PW1 has deposed in support of his case in consumer complaint No.177/05.  The evidence of PW1 is that he purchased one S.F.Sonic  maintenance free battery from the 1^st opposite party/ dealer  of M/s Exide Industries Ltd.,  that the said purchase was effected on 26.11.04 and the said battery was having one year replacement warranty; that during the warranty period the said battery became defective and that the opposite parties failed to replace the defective battery under the warranty.  Ext.A1 is the warranty issued by the opposite parties in the name of the complainant.  The issuance of A1 warranty is not disputed by the opposite parties.  It is the case of the opposite parties that A1 warranty was issued for the battery which was purchased by one Santhosh through his driver and the said purchase was on 15.12.03.  But the said case of the opposite parties cannot be believed or accepted  in view of A1 warranty card. Ext.A1 warranty card would make it crystal clear that purchase of the battery covered by  A1 warranty was on 26.11.2004.  The aforesaid entry in A1 warranty card would negative the case of the opposite parties. 

          6. The documentary evidence adduced from the side of the opposite parties to substantiate their contention that the purchase of the battery covered by  A1 warranty was during December 2003 cannot be relied.  The Forum below has rightly refused to rely on the said  documentary evidence adduced by the opposite parties.  It is to be noted that the documentary evidence adduced by the opposite parties cannot be relied on without any supporting evidence.  Admittedly the 1^st opposite party/dealer was having sales tax registration and so there will be endorsement by the sales tax authorities on the bill books.  But B3 and B4 documents produced by the opposite parties have no such endorsement.  The genuineness and correctness of B1 to B4 documents are to be doubted.  Those documents cannot be relied on in the light of the entries in A1 warranty card.  The Forum below has rightly relied on Ext.A1 warranty card issued by the 1^st opposite party/dealer.

          7. The case of the opposite parties that the entries in Ext.A1 warranty card  were effected by the complainant to suit his case and the said entries were made in collusion with one Santhosh cannot be believed or accepted.  The Forum below has rightly held that it is the primary duty of the 1^st opposite party/dealer to issue the warranty with all the relevant entries duly filled up  If the 1^st opposite party/dealer failed in carrying out his duty in issuing warranty card, it would amount to deficiency in service.  The case of the opposite parties that the entries in Ext.A1 warranty card were made by the complainant in collusion with Santhosh cannot be believed or accepted.  On a comparison of the evidence adduced from the side of he complainant with the  evidence on the side of the opposite parties,  it can be seen that the evidence on the side  of the complainant is more believable and acceptable.  The Forum below is justified in accepting A1 warranty card and finding deficiency in service on the part of the opposite parties.  Admittedly, the 1^st opposite party is the dealer of the subject battery and the 2^nd opposite party is the manufacturer of the said battery.  The warranty was issued by the 2^nd opposite party/manufacturer.  If that be so, both the opposite parties are jointly and severally liable to replace the defective battery with a new battery and also to pay compensation and costs.  Hence the impugned order passed by the Forum below is confirmed.

          In the result, the appeal is dismissed. The impugned order passed by the Forum below is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

          M.V.VISWANATHAN   : JUDICIAL MEMBER

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