DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 23rd day of September, 2019
C.D Case No. 27 of 2019
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Manoj Kumar Debata aged 43 years,
S/O Rabindra Debata,
At- Dalanga, Po- Rameswarpur,
Ps- Dhamnagar, District- Bhadrak
At Present Address-
Staying at- Manoj Kumar Debata
C/O Binay Kumar Panda
At- Kalyanmayee, New Colony (Apartibindha)
Po/Ps/District- Bhadrak, Pin- 756000
.................Petitioner
(Versus)
- Sitaram Auto care ,
Bonth Chhak ,Near Teja Petrol Pump,(Near Vijaya Bank)
Po/Ps/Dist- Bhadrak
- Bhagat Sales Corporation (Dealer- 43503)
At- Bypass in front of NESCO Office,
Bhadrak
- Chairman-cum-Managing Director
Head of the Exide Industries Ltd.
59-E, Chorangee Road, Kolkatta- 700020 East, Mumbai- 400069
- Branch Manager-Exide Battery Industree Ltd
At- Remuna Golai, Januganj, Balasore- 756019
…………………. Opposite Parties.
Counsel For Complainant: Sri Sri Himanshu Mohanty & Others, Adv
Counsel For the O.Ps No.1: In person.
For Opposite paties No. 2,3 & 4 : Ex parte.
Date of hearing: 08.07.2019
Date of order: 23.09.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts disclosed in the complaint are to effect that the complainant has purchased one EXIDE Brand UPS and it’s Battery Vide No. –IP-1350B Sl NO. –A3H5A005613 MRG-3H52on dtd. 14.03.2017 from O.P No.1 and has paid Rs14,600/- vide money receipt No. 1642 dtd. 14.03.17 to O.P No.1. The warranty period of the Battery is 0-24 Months from the date of purchase for free replacement. On 21.02.2019 the battery did not function properly as such the complainant produced the defective Battery before the O.P No.1 for it’s replacement . At that time the shop of the O.P No.1 was shifted to one new place situated near VIJAYA BANK and the name of the shop was changed to “SITARAM AUTOCARE”. The O.P No.1 kept the Battery with him and assured the complainant to look into the matter as the warranty period was continuing. But after some days on dtd. 28.02.2019 the O.P No.2 (Bhagat Sales Corporation) over telephone denied to replace the battery on the plea that “The Battery warranty period has expired. Since then complainant was visiting OPNo.1 in regular intervals but finally OP No. 1 refused to replace the defective U.P.S. Finding no other alternative the complainant filed dispute in this Forum for proper adjudication, praying for a direction to O.Ps to replace the defective U.P.S with Exide Battery by a new one with cost and compensation.
O.P No.1 appeared in person and filed his written version that, he has not sold the material or UPS along with battery to the above named client. Originally he is the customer of Sitaram Auto Electricals and said shop is closed. Intentionally and will fully the petitioner has fabricated and field this case to harass him .As such he prays to take necessary action against the complainant.
OP No.2,3 & 4 although have received summon from this Forum, did not appear before the Forum nor submit written version as a result of which the above O.Ps No. 2,3 & 4 were set ex-parte.
Heard the complainant and OP No. 1 and perused materials on record. OP No. 2,3 & 4 were set ex-parte as the opposite parties did not prefer to appear before the Forum nor submitted any written version. Evidently the complainant had purchased a EXIDE Brand UPS and it’s Battery Vide No. –IP-1350B Sl NO. –A3H5A005613 MRG-3H52on dtd. 14.03.2017 from O.P No.1. on payment of cash. Though the O.Ps No. 2 has received the notice and having his business within one kilometer distance from the Bhadrak Forum and O.Ps No. 3 & 4 are the manufactures, did not appear nor submitted their written versions nor evinced any interest to resolve the dispute amicably. It clearly discloses their malafide intention and also their nexus with each other to deceive an innocent consumer/customer. In addition to above submission, O.P No.1 stated in his w/v that he has not sold the material or UPS along with battery to the above named client. Originally he is the customer of Sitaram Auto Electricals and said shop is colosed. Intentionally and will fully the petitioner has field this case to harass him. The pleadings of O.P No.1 clearly discloses his malafide intention to deceive an innocent consumer/customer by changing the place and name of his own shop. More over the repudiation letter dtd. 28.02.2019 duly signed by the service engineer of the O.Ps clearly shows that the UPS was found defective prior to date 28.02.2019, which is within the warranty period. As the Battery warranty period was not expired , in terms of the warranty the complainant is entitled to avail the facilities of the warranty conditions. Hence the facts of the complaint are all true and fare and the acts of O.Ps are found suspected to have sold a defective set.
The dispute between the parties is admittedly 'a Consumer Dispute' within the meaning of Section-2(e) of the act. It is further not disputed by the parties to this case that there has been a "Deficiency of service".
It is cited in volume No. 34 (1992) OJD-104-Odisha that “Inaction & silence are serious type of deficiency”. As the O.Ps have not filed any written versions and carelessly avoided their appearance in this Forum. Hence the claims of the complainant stand allowed absolutely.
2003-CLT- Vol-96P 15 Para-4 in C.D Case Appeal No. 37 of 2002 SCDRC Odisha held that –
“ Absence of w/v commission is bound to accept the uncontroverted consequently the dispute must be succeed and allowed.”
2013(1) CPR-507-NC - “In case w/s not field after several opportunities. It has no defense on merit.”
In view of the above facts and on perusal of materials on record it is held that the Ops N. 3 & 4 ,the manufacturers have intentionally avoided to appear before the Forum and did not prefer to file written version which discloses their ulterior motive to deceive the complainant and therefore Ops other than O.P No.2 are liable to compensate the loss sustained by complainant. Hence it is ordered;
ORDER
The complaint be and the same is allowed against OP No. 1 on contest and ex-parte against O.Ps No. 3 & 4 with cost. The Ops No. 1, 3 & 4 are directed to refund the cost of battery i.e. Rs 14,600/- ( Amount in the Bill No. 1642 dt. 14.03.2019) or replace the old U.P.S set & Battery with new one of same model along with Rs 1000/- as cost of litigation to complainant within 30 days from the date of receipt of this order, failing which penalty @ Rs 50/- per day shall be charged on OPs till the final payment is made by them jointly & severally to the complainant.
This order is pronounced in the open Forum on this 23rd day of September, 2019 under my hand and seal of the Forum.
