Haryana

Karnal

719/2010

Subhash Chans Saini S/o Shri Man Chand - Complainant(s)

Versus

New Ashu T.V. Center., Okaya Battery, Okaya Power Ltd - Opp.Party(s)

30 Oct 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                           Complaint No.719 of 2010

                                                               Date of instt.7.09.2010

                                                               Date of decision: 24.07.2015

 

Subhash Chand Saini son of Shri Mam Chand resident of village Churni tehsil and District Karnal.                                                                         ………….Complainant. 

 

                                                          Versus

1.New Ashu TV Centre, Near Devi Mandir Indri  District Karnal through its proprietor.

2.Okaya Battery, Okaya Power Ltd. Rohtak Road, New Delhi 110041 through its Managing Director.

.

                                                                   ………..Opposite Parties.

 

 

                   Complaint u/s 12 of the Consumer

                   Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Smt.Shashi Sharma……….Member.

                  

 

 Present        Sh.Harish Arya Advocate for the complainant.

                   Sh.R.C.Goel Advocate for OP No.1.

                   OP No.2 ex parte.

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the allegations that he purchased one Okaya Battery   SL 618 from Opposite party ( in short OP) No.1 bearing Sr.No. GFME 5659335 – 049550032- 18MSL – 618,  vide invoice no.8435  dated 25.4.2009  manufactured by OP No.1.  The said battery was carrying warranty of 24 months. However, after 3-4 months the battery started giving problem.   He approached the OP no.1, who took the same from his premises for the purposes of recharging and re-installed.  In the month of January, 2010, the battery started giving  problem of back  upand heating with smell. He contacted the OP No.1 and requested for replacement of the battery, as the same was under warranty. The OP No.1 took the battery from his premises and after 5-6 days, installed another battery. However, in the month  of May, 2010, the  said battery also started giving problem of back up.  Therefore, he again approached the OPNo.1,  who sent a mechanic for testing .The mechanic told that battery was almost dead and there was no warranty of the said battery, because the same was having  manufacturing period of March, 2008.  On enquiry, he came to know that OP No.1 installed an old battery   in place of new battery and that too of out of warranty.  It has further  been alleged that complainant served legal notice dated  6.7.2010 upon the Ops to replace the  battery, but to no effect. In this way, there was deficiency in services  and unfair trade practice on the part of the Ops,  due to which the complainant suffered great mental, pain and harassment. The complainant has sought directions for Ops to replace his defective battery and to pay Rs.20,000/- as compensation for causing mental, pain and harassment.

 

2.                On notice, the OP No.1  put into appearance and filed written statement disputing the claim of the complainant. Preliminary objections have been raised that complaint is not maintainable as the complainant is not  consumer of OP No.1;  that the complainant has no locus standi  and cause of action to file the present complaint; that the complaint is bad for mis joinder and non joinder of the parties and that the complainant has not approached this Forum with clean  hands.

 

                   On merits, factum of sale of one Okaya battery by OP No.1 to the complainant has been admitted. It has been submitted that  warranty of the said battery was 18 months and OP No.2 being manufacturer was liable to remove any defect taking place during the warranty period. It has further been averred that  when the complainant approached OP No.1 for rectifying the defect in the battery, OP No.1 sent the same to OP No.2 for replacing the same and   in the mean time as stop gap arrangement, another service battery was provided to the complainant so that his work might not  suffer till replacement of the battery by OP No.2.  Such step was taken by OP No.1  in order to  have cordial relations  with his customer.  After   few days, OP No.2 returned the   defective battery to Op No.1 saying that battery  could not be replaced as  its  upper top was torn.  This fact was verbally conveyed to the complainant and he was requested to return the service battery, which was provided to him  as stop gap arrangement . All other allegations made in the complaint have been denied.

 

3.                The OP No.2 filed  separate written statement controverting the claim of the complainant.  Almost similar preliminary objections have been raised  as raised by OP No.1. On merits, it has been submitted that OP No.2 is only manufacturer and was not at fault .Neither the complainant nor OP No.1 told about the problem of the battery. The battery was torn out/blast due to high voltage and negligence on the part of the complainant and OP No.1. As per clause no.9 of the warranty card, there was no responsibility of the company in blast case due to electricity.  Neither the complainant nor OP No.1 informed the OP No.2  about problem of the  battery prior to the blast in the same.  The other allegations made in the complaint have been denied.

 

                   Later on when the case was at the stage of evidence of OP No.1, none appeared on behalf of OP No.2 on 5.5.2014 and ex parte proceedings were imitated.

 

4.                In evidence of the complainant,  he filed his affidavit Ex.C1 and documents Ex.C2 to Ex.C4.

 

5.                On the other hand in the evidence of OP No.1, affidavit of Sh.Brij Kishtore as Ex.CW1/A  has been tendered.

 

6.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

7.                There is no dispute between the parties  regarding the fact that complainant purchased one Okaya battery from OP No.1 on 25.4.2009 for a sum of Rs.7500/-.  There was problem in the said battery, therefore, he gave the same to  OP  No.1 for removal of the defect and OP no.1 sent the same to OP No.2 for that purpose.  The OP No.2 returned the  same to OP No.1 on the ground that   top of the battery was torn due to blast   which was due to high voltage and  such blast was not covered under the warranty  as per clause  no.9 of the warranty card.

 

8.                It is worth pointing out that battery was removed from the premises of the complainant by OP no.1 for removal of defect and as stop gap arrangement one service battery was  provided to the complainant. Had top of the battery been torn on account of blast due to high voltage, then such torn condition could be visible while the battery was removed from the premises of the complainant and complainant could be apprised of such condition of the battery at that same time.  However, neither the OP No.1 has raised such plea in the written statement nor there is any material on record to that effect. Admittedly, the battery was sent by OP no.1 to OPno.2 for removal of the defect. Had top of the battery been in torn condition on account of  blast due to high voltage, then OP no.1 would not have sent the battery to OP no.2 because the OP No.1 being dealer could very well know the condition of the warranty. These circumstances show that battery  of the complainant, which was sent by the OP no.1 to the OP No.2 for removal of the defect  was not having its top in  torn condition, rather the same was sent to OP No.2 for removal of the defect  regarding back up  and heating problem. The OP No.2  has  led no evidence to prove that top of the battery,  when received from OP no.1, was in torn condition on account of blast due to high voltage. It is settled proposition of law that pleadings cannot take the  place of proof. Therefore, it cannot be accepted that battery sent by OP No.1 to OP No.2 was having its top  in torn condition, when received by Op No.2. Therefore, OP no.2 was bound to replace the battery during the warranty period. The conduct  of OP No.2  in not replacing battery during the warranty period  certainly amounts to deficiency in services on its part.

 

9.                Therefore, as a sequel to the foregoing discussion, we accept the present complaint and direct the OP No.2 to replace the battery of the complainant with a new one and to pay a sum of Rs.2200/- to the complainant towards compensation for mental agony and litigation expenses. The OP No.2 shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:24.07.2015

 

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.

 

 

Present         Sh.Harish Arya Advocate for the complainant.

                   Sh.R.C.Goel Advocate for OP No.1.

                   OP No.2 ex parte.

         

 

                   Arguments heard. For orders, the case is adjourned to 24.7.2014.

 

Announced
dated:23.07.2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.

Present         Sh.Harish Arya Advocate for the complainant.

                   Sh.R.C.Goel Advocate for OP No.1.

                   OP No.2 ex parte.

         

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be  consigned to the record room after due compliance.

 

Announced
dated:24.07.2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                   (Smt.Shashi Sharma)

                             Member.