False representation of standard of a battery and the suffering of the complainant in respect of his livelihood due to such false representation has led the complainant to lodge the instant case with this forum under section 12 of the CP Act 1986.
To be brief, the complaint’s case runs as follows:-
The O.P.No-1.has a showroom of automobile goods under name and style “Paul Auto mobile”. The O.P.No-2 has been expunged. The O.P.No-1 is an authorized service provider of the manufacturing company. The O.P.No-3 is a manufacturing company. On 28.9.2016 the complainant purchased four Exide Batteries from O.P.No-1 for a consideration price of Rs 30,500 for use in his E-Rickshaw. He is an E-Rickshaw puller by profession which is his only livelihood by means of self employment. The warranty coverage for those batteries was for two years (24 month) from the date of purchase. One money receipt was issued in favour of the complainant by O.P.No-1. The complainant started to use the batteries and from the very beginning the batteries started to create problem regarding charge stability. Even after running for 18-20km only the full charged battery became fully discharged and it required for further charging. Since then the report regarding the trouble had been brought to the notice of the O.P-1 time and again. Then, the batteries were taken to the showroom of O.P.No-1 who received the one battery on 5.6.2017 and then other three batteries were taken back on 8.7.2017. The O.P.No-1 also assured to replace the batteries by new batteries. But ultimately he refused to do so. The complainant knocked at his door several times but to no effect. So, finding no other alternative open to him the complainant was obliged to purchase another set of batteries model E-Ride Tubular -100 of Exide company for earning his livelihood. The complainant has filed the instant case under section 12 of the C.P Act praying for refund of the price of all batteries along with claiming compensation for an amount of Rs 60,000 and interest 10.2% pa from 28.9.16.
On argument the complainant in verbal submission stated to this forum that he was primarily ignorant of what type of battery to be used in E-Rickshaw which has been purchased for Rs 56,000 on 28.9.16 and on the same day immediately after purchasing the said batteries from O.P.No-1 he fitted them to his E-Rickshaw purchased from the neighboring shop of O.P-1in the early hours on the same day. He being a layman had taken the goods on good faith and fitted them to his newly purchased E-Rickshaw which began to run. On facing the problems regarding charge stability he came to learn from other E-Rickshaw puller that such trouble will go on unless he change the model of battery meant for E-Rickshaw only. He then brought the problem to the knowledge of the O.P-1 who assured him that the problem is temporary as the vehicle is a new one which might have some mechanical problem and the model of the battery which had been supplied may also be used in E-Rickshaw .
On argument the complainant told that he was never informed of difference of warranty period in respect of domestic use and use in E-Rickshaw by the O.P. He had trusted much on the verbal assurance of the O.P-1 as well as on the warranty card meant for two years. He stated more to this Forum that the O.P-1 had taken one battery having Sl No-A316D20917 on 5.6.17 with the assurance of replacement and handed over one Stepnee battery on rent @ Rs 40 per day. But that battery had worked for one week only and his E-Rickshaw remained inoperative w.e.f. 5.6.17. The O.P had taken the all 3 batteries also on 8.7.17 and even the original purchase receipt on 12.7.17 with assurance of replacing the battery immediately. Till the date of argument (19.3.18) no assurance had been kept and not even the batteries have been returned .The situation had obliged him to purchase a new set of batteries from Joy Ma Kali Enterprise, Balurghat on 7.8.17 to earn my livelihood.
The O.P.No-1 has filed a written version in which he stated that the case is not maintainable in its present form. That the complainant has no cause of action to file this case against this O.P. That the complainant has no loqus standi to file this case against this O.P. That the claim of the complainant is legal, baseless and against the law and equity and also barred by limitation. That the complaint petition is defective for mis-joinder and non-joinder of necessary parties. It is revealed from the complaint that the complainant is an E-Rickshaw puller and had purchased four Exide Batteries of IP - 1000 (Invaplus) model from the OP. The said model is particularly meant for inverter only. But it is revealed that the complainant fitted those batteries in his E-Rickshaw and on being dissatisfied he has filed this case only to extort money from this O.P who is not responsible for mishandling of the product. The O.P duly issued cash memo to the complainant against purchase of those batteries with warranty. That excide Battery of model IP-1000 is manufactured by the company only of inverter and if the said Batteries are fitted in any other application, the purchaser is not entitled to get the benefit of warranty. That is clearly revealed that O.P has violated the terms of warranty for fitting those batteries in E-Rickshaw instead of domestic use and accordingly in terms of warranty the complainant is not entitled to get any relief as prayed for. The complainant is not a consumer as he violated the terms of warranty. That from the challan issued by Joy Ma Kali Enterprise against purchase of Exide E-Ride Tubular -100, it is revealed that the complainant also purchased Four batteries of above model which is particularly meant for E-Rickshaw. That complainant is a man of Hili police station far away from shop dealer’s point of the O.P and is unknown to him. If any customer fulfilled the terms of warranty the company also complies all sorts of conditions as provided in the warranty. The dealer has no responsibility in this regard. That is established that the batteries so purchased by the complainant have been damaged due to negligent act of the complainant. The complainant made contract with the O.P and the O.P after knowing the fact of using the battery fitted with E-Rickshaw, clearly stated to the complainant that he is not entitled to get warranty facility for his violative act which is reflected in the Para 9 of the plaint. Then the complainant deposited those batteries with the O.P as a scrap and he expressed his willingness to purchase E-Batteries subsequently by adjusting scrap value. But he filed this case for wrongful gain. Hence the complaint petition is liable to be dismissed.
The O.P-1 in his examination in chief and deposition (kept in record) and on argument stated to this forum that the battery model FIPO-1000 is meant only for domestic use and not for fitting it to ply E-Rickshaw. He had not sold the complainant the 4 batteries on 28.9.17 being known well that they are to be fit to E-Rickshaw. He has also denied that the company of which he is the dealer has ever brought to his knowledge the difference of period of warranty for different use. He has also denied any false statement or assurance made to the complainant with some malafide intention.
The O.P-2 had never turned up and order for experte hearing against O.P-2 had been passed on 15.9.17.
The O.P-3 has filed a written statement in which he stated that the O.P- 1 is a franchisee of the O.P-3 and operates a Dealer Store in the name of “Paul Automobile” at District Dakshin Dinajpur. The relationship between O.P-1 (Franchisee) and O.P-3 (Franchisor) is on a principal to principal basis and O.P-1 does not act as an agent of O.P-3. Further, there is no privity of contract between the O.P-3 and the complainant with regard to be rendered to the service rendered by O.P-1. The O.P-3 is a separate legal entity and therefore, cannot be made liable for the actions/inactions/omissions of the O.P-1. All the allegations and reliefs claimed are against the dealer and so the O.P-3 is not liable to pay any compensation to the complainant. Hence, the instant complainant petition is liable to be dismissed.
The O.P-3 in its written argument has denied all complaints against it and de recognized the complainant as his consumer. On argument they have also told that the O.P-1 is a bona fide dealer of his company and authorized to sell their product knowing full well all the features of the product. They have also told in the written argument that the Model of Exide battery purchased by the complainant may also be used for an E-Rickshaw but in that case the period of warranty stands for six months only from the date of purchase. Replacement of the battery which had been handed over on 5.6.17 and subsequently on 8.7.17 cannot be made as six months period of warranty form the date of purchase i.e 28.9.16 has been covered. It is also stated in his argument and verbally to the court by the learned lawyer of the O.p-3 that the O.P-1, their dealer is well aware of every features, merits and demerits of their product as well as warranty. so the O.P-3 may be dealt as a mis-joinder in the instant case and be acquitted of all charges made in the instant complainant.
Points for Decision
- Whether the complainant is a consumer?
- Whether the was any deficiency in service to the complainant on the part of O.P-1?
- Whether the complainant is entitled to get the reliefs as prayed for?
Point No-1:
On perusal of the documents which are in record, it can safely be said that the complainant is a consumer under the Consumer Protection Act. As the O.P-1 has admitted that he had sold the said four batteries as described in the cash memo/money receipt on 28.9.2016.
Point No-2:
The Written version and the argument made by the learned lawyer of the complainant and also by the learned lawyersof O.P-1 and O.P-3suffice it to saythat the O.P-1 had taken ‘Unfair Trade Practice’ under the provision section 2 (1) (r) (1)(i) of the C.P. Act. 1986. He had issued warranty card for a period of two years of the FIPO-1000 battery but that period is meant only for domestic use of battery such act is to tempt customer to purchase goods of such quality and standard as falsely represented by the O.P-1. Moreover he has taken back all batteries with a false assurance to replace the same but had not yet returned the batteries to the complainant. Hence deficiency in service under section 2 (1) (g) (o) as well as unfair trade practice under section 2(1) (r) (1) (i) & (ii) have been established against the O.P-1.
Though ex parte hearing was on against the O.P-2 who is also a Zonal office of O.P-3 but, on the basis of the statement and argument by the O.P-3, both O.P-2 and 3 may be acquitted of charges in the instant case.
Hence,
ORDERED
That the instant CC case be and the same is allowed on contest.
That the complainant is entitled to get principal claim amount of rupees 30,500 from the O.P.-1.
The complainant is further entitled to get compensation of rupees 5000 from the O.P-1.
The OP-1 is directed to pay rupees 30,500 to the complainant as principal claim amount of the value of battery model on 28.07.2016 and also rupees 5000 as compensation within 30 days from the date of this order, failing which the complainant is entitled to get interest @ 8% per annum till the full realization of the said amount of the principal claim along with the compensation.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
