BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.87/13.
Date of instt.: 08.05.2013.
Date of Decision: 03.09.2015.
Ram Phal S/o Sh. Saroop Singh, r/o Khurana Road, DAV Colony, Kaithal, Tehsil & Distt. Kaithal.
……….Complainant.
Versus
1. Satguru Automobiles, Opp. Guru Teg Bahadur Khalsa Public School Khurana Road, Kaithal, Distt. Kaithal, through its Prop./partner.
2. Avon Cycle Limited, G.T.Road Ludhiana-141003 through its Prop./partner.
3. AMPTEK BATTERY FUSION POWER SYSTEM, A-221, Ist Floor, Street-7, Road-4, Mahipalpur Extension, NH-8, New Delhi.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Subhash Chugh, Advocate for complainant.
Sh. Nikhil Gupta, Advocate for the opposite parties.No.1 & 2.
Op No.2 already exparte.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased the Avon Electronic Scooty, Model E-Scoot 207 bearing chassis No.2072011110690 and battery No.AMPTEK-1749 to 52 for sum of Rs.37,428/- vide invoice No.13 dt. 20.06.2012 from Op No.1. It is alleged that after 20 days, the battery of above-said Avon Electronic Scooty stopped working properly. It is further alleged that the complainant approached the Op No.1 and Op No.1 changed the acid of above-said battery of Avon Electronic Scooty. It is further alleged that time and again, the said battery stopped working and the Op No.1 changed the acid of above-said battery. It is further alleged that from 10.07.2012 till date, the above-said battery did not work properly and has become mere a scrap for the complainant. It is further alleged that the complainant requested the Ops to change the above-said battery of Avon Electronic Scooty with a new one because there is a manufacturing defect in the above-said battery but the Ops lingered on the matter on one pretext or the other. This way, the Ops are adopting unfair trade practice and are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties No.1 and 2 appeared before this forum, whereas Op No.3 did not appear and opt to proceed against exparte vide order dt. 20.10.2014. Ops No.1 and 2 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the present complaint is false and frivolous; that the complainant has failed to comply with the provisions of Section 13(1)(c) of C.P.Act; that the complainant has concealed the true and material facts from this Forum. As a matter of fact at the time of inspection of battery only on 30.04.2013 by answering Op No.1, it was found that the battery in question was in bulging condition due to misuse. It is a clear cut case of overcharging. It is stated that at the time of purchase of said Scooty, the Engineers of company duly instructed the complainant to charge the battery for 6-8 hours and advised to ensure that correct battery charger suitable for charging E-Scooty 207 battery is used. Warranty of said scooty and its battery were applicable only according to the terms and conditions of warranty card as-well-as User Manual Book. In the warranty card of Amptek battery, it is clearly mentioned that:
The warranty does not cover:
Damage to the battery caused by faulty electrical systems, mproper handling, service by unauthorized dealer/auto electricians, willful abuse, destruction by fire, collision, theft or recharging.
Bulging of the battery due to misuse:
Breakage of container, cover, terminals. Terminals should not be soldered.
There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 to C4 and closed evidence on 10.06.2015. On the other hand, the Ops No.1 and 2 did not adduce any evidence and so, the evidence of Ops No.1 and 2 was closed vide court order dt. 10.06.2015.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. It is admitted case of the parties that the complainant had purchased the Avon Electronic Scooty, Model E-Scooty 207 bearing chassis No.2072011110690, Motor No.228-1111-03195 and battery No.AMPTEK-1749 to 52 for sum of Rs.37,428/- vide invoice No.13 dt. 20.06.2012 from Op No.1, who is authorized dealer of Op No.2, Op No.2 is distributor of Op No.3 and Op No.3 is manufacturer of company and there was warranty of one year of the above-said Avon Electronic Scooty and its battery. As per complainant, after 20 days of the purchase of said scooty, the scooty stopped working properly and the complainant approached the Op No.1, who changed the acid of the above-said battery. Similarly, in the month of July 2012 and October, 2012 the scooty stopped working properly and when the complainant approached the Op No.1, he changed the acid of the battery. As the scooty was not properly working, on 30.04.2013 the complainant again approached the Op No.1 and made request for change of the battery but the Op has refused to change the battery. It is also stated by the complainant that on the disclosure of the manufacturer of battery, he amended his complaint accordingly and impleaded AMPTEK BATTERY FUSION POWER SYSTEM, A-221, Ist Floor, Street-7, Road-4, Mahipalpur Extension, NH-8, New Delhi as Op No.3. On the other hand, it is the case of Ops that the complainant had approached the Op No.1 only on 30.04.2013 and not on earlier occasion as alleged by the complainant and on 30.04.2013 the Op No.1 found that the battery in question was in bulging condition due to misuse. It is alleged by the Ops that it was a clear cut case of overcharging. Ld. Counsel for the Ops No.1 & 2 submitted an authority titled as Brijesh Saxena & others Vs. Skoda Auto A.S. & others, 2015(1) CLT page 296 (NC).
6. From the facts and circumstances of the case, it is clear that the battery in question was within warranty period and the Op No.1 admitted that he was ready to pay the claim of the battery to the tune of Rs.4,000/- as the complainant had used the battery for 8 months. The complainant has filed his affidavit, Ex.CW1/A and documents Ex.C1 to Ex.C4 in support of his contentions which is unrebutted as the Op has not adduced any evidence and there is no reason to disbelieve the same. The Op No.1 has not sent the battery to the Op No.3 to get it checked from his expert/engineer. Without any report from the expert, the Op No.1 cannot say that the battery in question was in bulging condition or it is a case of overcharging. So, we find that there is deficiency in service on the part of Ops. The authority submitted by ld. Counsel for the Ops No.1 & 2 is not applicable to the facts of present case.
7. In view of the above discussion, we hereby accept the complaint and direct the Ops to replace the battery in question with new one of the same model. However, it is made clear that if the said battery as purchased by the complainant is not available with the Ops, then the Ops are directed to refund the cost of said battery i.e. Rs.12,000/- to the complainant. The Ops are also burdened to pay Rs.2,000/- as lump sum compensation on account of harassment, mental agony and cost of litigation charges. All the Ops are jointly and severally liable. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. on the cost of battery from the date of filing of the complaint i.e. 08.05.2013 till its realization. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.03.09.2015.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
