By Sri. K. Gheevarghese, President:

The complaint filed under section 12 of the Consumer Protection Act.

The complaint in brief is as follows.

The Complainant is the purchaser of an automotive battery 203714 from the 1^st Opposite Party on 31.3.2007 at the price of Rs.2,868/-. The battery was in use of the Complainant bolero jeep from the date of purchase onwards. The battery found to be down on 01.08.2007 and the vehicle was not started. The 1^st Opposite Party was informed of the defect of the battery and the complainant was directed by the 1^st Opposite Party to approach the 2^nd Opposite Party who is the distributor. As per the direction of the 2^nd Opposite Party the battery was given in his shop for the purpose of sending it to the company the 3^rd Opposite Party. The battery here in covered one year period of guaranty from the date of purchase. How ever after a short period the battery became non active the representation of the complainant to rectify the defect was not responded and the battery was not replaced also one. The battery purchased by the Complainant found to be non functional in the warranty period. The Complainant was to undergo financial losses due to the defective service of the Opposite Party. (a) There may be an order directing the Opposite Party to refund Rs.2,868/- the amount collected as the price of the battery. (b) Towards the loss suffered by the Complainant due to the purchase of the battery the Complainant is to be given Rs.10,000/-.

2. The 1^st Opposite Party filed version . The purchase of the standard furkuwa on 31.3.2007 is admitted. The Complainant when approached the Opposite Party it was informed that if any complaint is registered against the manufacturer he will be getting the benefits. If any wiring problem effected in the vehicle or any defect in manufacture this Opposite Party is not responsible. The complaint is bad for non jointer of necessary parties. The terms of warranty is to be kept up by the manufacturer and the 1^st Opposite Party is to be exonerated from any liability. The complaint is to be dismissed with compensatory cost.

3. The 2^nd Opposite Party filed version and according to them the purchase of battery by the Complainant is not known to the 2^nd Opposite Party if any terms and conditions or any assurance given the 2^nd Opposite Party is not responsible for it. In case of any manufacturing defect the responsibility lies upon the manufacturer alone. When the Complainant approached the 2^nd Opposite Party in respect of the allegation raised the 2^nd Opposite Party made an enquiry and it was known to him that the battery sold to the 1^st Opposite Party by the 2^nd Opposite Party on 17.3.2005 and there after it was again sold by the 2^nd Opposite Party to the Complainant after a laps of 24 months and 13 days. Generally if a battery filled with acid and in non use of it for a period of six months, the components inside would become damaged which leads to the non function of battery. The battery sold to the 1^st Opposite Party is an acid filled and kept up for a period of two years without using it. The 2^nd Opposite Party has not done any unfair trade practice nor any deficiency in service. The battery which was sent to the 3^rd Opposite Party which was returned back with an intimation that the battery sold was beyond the period of two years and it was not possible for them to replace the fresh one instead of the defective battery sent to the 3^rd Opposite Party. The complaint is not maintainable if any loss effected to the Complainant the 2^nd Opposite Party is not responsible for it. The complaint is to be dismissed with cost.

4. The 3^rd Opposite party was supplemented and version filed on their appearance. The sum up of the contention is as follows. The Complainant is not consumer who comes within the ambit of the provisions. The purchase of standard furkuwa automatic battery No.702 from the 1^st Opposite Party for the price of Rs.2,868/- is not known to the 3^rd Opposite Party. As admitted, the 2^nd Opposite Party is the dealer of the 3^rd Opposite Party to sell battery manufactured by them. The 1^st Opposite party was the dealer till 2004 the terms of dealership were detached and a case is still in existence against the 1^st Opposite Party numbered C.C. No. 777/2006 in the ACJM Court Ernakulam. The complaint is filed by the Complainant in collusion with the 1^st Opposite Party with improper motivations. The battery purchased by the Complainant was manufactured in the February 2005 and sold by the 2^nd Opposite Party to original purchaser on 17.3.2005. The warranty does not cover if the period between the date of manufacture and date of sale exceeds three months. The 3^rd Opposite Party has no role in the transaction between the Complainant and 1^st Opposite Party. More over this Opposite Party has not ever sold any substandard battery to none of the customers. There is no deficiency in service the complaint is to be dismissed with compensatory cost.

5. The points in consideration are.

1. Whether any deficiency in service on the sale of battery to the Complainant.

2. Relief and cost.

6. Point No.1:- The Complainant filed affidavit, Ext.A1 to A5 are marked in support of their contentions. Opposite Parties filed affidavit, Ext.B1 to B9 are marked on their side.

7. The case of the complainant is that the battery manufactured by the 3^rd Opposite Party for using it in the vehicle of the Complainant was purchased from 1^st Opposite Party. The 2^nd Opposite Party is the dealer of the Standard Farukaw make Automotive Battery. In using the battery while in warranty period, the battery found not in such a conditions to produce the required volts of electric energy. The Opposite Parties were not ready to replace the battery with a new one or terms of warranty was not complied.

8. The 1^st Opposite Party sold the automotive battery to the Complainant on 31.3.2007. The Electronic and Communication Engineer representing for the 3^rd Opposite Party is examined as OPW3. According to him the purchase of the battery was effected beyond the stipulated time when the battery is to be sold and the conditions of sale were not satisfied in the sale of disputed battery. In the relevant period the 3^rd Opposite Party had no dealers in Wayanad District to sale the battery produced by them. As the Complainant is concerned he had to look upon in the brand of the items purchased and the warranty which them issue at the time of sale. Ext.A2 is the warranty card given to the Complainant the date of sale of the battery is on 31.3.2007. The period of warranty starts from the date of sale for the period of 12 months the 1^st and 2^nd Opposite Parties has no case that the battery was given back to the dealer beyond the period of warranty. The 2^nd Opposite Party started the dealership of selling the battery from 2008 onwards however the battery which found to be not fit the quality to was sent to the 3^rd Opposite Party to satisfy the terms of warranty. In Ext.A2 in the column for the dealer the 2^nd Opposite Party stamped their address. If the purchaser has not run with the terms of using the battery the Opposite Party could have rejected the request of the Complainant or sent the items to the company. The contention of the 3^rd Opposite Party is that the battery which was not in use of the complainant was a 2^nd purchase. As far as a consumer is concerned the purchase of article from a trader who is having visible exhibition of a dealer or a seller of the product of concerned company it would be relied on. The 3^rd Opposite Party also deposed that the criminal case filed by the 3^rd Opposite Party No. CC.777/06 is still in pending before the CJM Court Ernakulam which is related to the transaction in between the 3^rd and 1^st Opposite Parties. More over the 3^rd Opposite Party has not produced any document to show that from which date onwards the customary relationship was terminated with the 1^st Opposite Party. The Complainant purchased the automotive battery from the 1^st Opposite Party and the 2^nd Opposite Party is the dealer who stamped in the warranty card. The 3^rd Opposite Party who is the manufacture of the product, has not initiated any case against the 1^st Opposite Party for improper selling their product unauthorizedly. We are in the opinion that the non replacing of the battery within the period of warranty is a deficiency in service and the point No.1 is found accordingly.

9. Point No. 2:- The Complainant purchased the automotive battery at the price of Rs.2,868/- from the 1^st Opposite Party. The 2^nd Opposite Party is a dealer issued the warranty card to the Complainant. The battery which is in dispute could not be used due to defect. The Complainant further deposed that he had to face enough difficulties due to the defective battery. The Compensation claimed by the Complainant for the loss incurred is not supported by any evidence however the price of the battery is to be refunded along with cost and compensation.

In the result, the complaint is partly allowed. The Opposite Parties are directed to refund the Complainant Rs.2,868/- (Rupees Two thousand Eight hundred and Sixty Eight only) the price of the battery along with the compensation of Rs.1,000/- (Rupees One thousand only) and towards the cost Rs.1,000/- (Rupees One thousand only). The Opposite Parties are liable jointly and severally to refund the Complainant the price of the battery along with cost and compensation within one month from the date of receiving this order.

Pronounced in open Forum on this the 30^th day of January 2009.

PRESIDENT: Sd/-

MEMBER-I : Sd/-

MEMBER-II: Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. P.O. Oomman. Complainant.

Witnesses for the Opposite Party:

OPW1. Jayakumar. L. Agriculture, Business.

OPW2. P.D. Gangadharan. Business.

OPW3. Amjeth. Officer , Service, Exide Industries Ltd.,

Exhibits for the Complainant:

A1. Retail Invoice Cash/Credit. dt:31.03.2007.

A2. Warranty Card. dt:31.03.2007.

A3 series. Copy of Lawyer Notice, Postal Receipts,

Acknowledgement. dt:18.08.2007.

A4 series. Copy of Lawyer Notice, Postal Receipts,

Acknowledgement. dt:18.08.2007.

A5 Reply Notice. dt:26.08.2007

Exhibits for the Opposite Party:

B1. Bill No. 983 (Copy) dt: 17.3.2005.

B2. Bill Book.

B3 (2sheets) Authorization Letter. dt:04.11.2008.

B4. Copy of Certificate.

B5 (3 sheets) Price List W.E.F. 16.01.2007

B6. Price List W.E.F. 16.01.2007.

B7. Warranty Card.

B8. Bill No. 1005 (Copy) dt:01.4.2005

A9. Challan Copy.