Order No. -11                                                                                  Dt.-19/01/2016

Shri Asoke Kumar Das,President

                                        F  I  N  A  L   O  R  D  E  R

Complainant’s case in short is that he purchased one battery operated Rickshaw on 10/07/14 from the O.P. Sujata Enterprise on payment of Rs.1,21,000/-. Four nos. of Exide batteries were fitted in that Rickshaw. Those batteries are not functioning properly and became exhausted. For this reason the Rickshaw has no speed. Those batteries were covered under warranty of 18^th months for replacement but the batteries were not replaced by the O.P. despite his requests.

Hence, this case.

The O.P. Sujata Enterprise has contested this case by filing a W/V. Contending that O.P. is a dealer  of battery operated Rickshaw van and he purchased the battery Rickshaw in question from DYS  IMPEX  Pvt. Ltd. On 06/07/14 with batteries and the warranty of the battery lies with  DYS  IMPEX  Pvt. Ltd. and that the complainant directly went to Exide dealer at Siliguri and that Exide dealer replaced one battery. The O.P. has no responsibility regarding the problem of battery as he is neither manufacturer nor dealer of the battery and that this case is bad for non joinder of necessary parties viz.DYS  IMPEX  Pvt. Ltd. & Exide battery Ltd. Kolkata. Under this back drop the O.P. has prayed for dismissal of the case with cost.

POINTS FOR CONSIDERATION

1. Is the case maintainable?
2. Is the complainant is a consumer?
3. Is the O.P.  guilty for deficiency in service as alleged?
4. Is the complainant entitled to get the reliefs as prayed for?

DECISION WITH REASONS

All points are taken up together for consideration and decision.

On careful perusal and on consideration of the material on record i.e. pleading of the parties(both are supported by affidavits the written notes of arguments, the document filed by both the parties and the arguments of Ld. lawyer of both sides we find that admittedly complainant has purchased one battery operated Rickshaw, chassis no.-BED-P-BL-1-0316 including four nos of batteries, charge etc. from the O.P. on 10/07/14 on payment of Rs.1,21,000/-. Admittedly the complainant couldn’t run his said battery Rickshaw a few days after his purchase of the same due to non functioning of the batteries fitted in his Rickshaw. It is coming out from the arguments advanced by the Ld. lawyers of the both sides and the materials of the records that the complainant reported about non functioning of the batteries to O.P. and he even went to Exide dealer at Siliguri viz. Sandhya battery as per instruction of O.P. for replacement of defective battery but the Exide dealer of Siliguri replaced only one battery out of four. Admittedly the O.P. gave the complainant the warranty booklet at the time of sale of the battery Rickshaw by affixing its seal & date. As per this warranty booklet there is warranty for 18^th months for replacement of the battery. O.P. Has flatly denied its responsibility to replace the batteries within the warranty period of 18^th months on the plea that O.P. is neither manufacturer nor dealer of the batteries in question. But it is clear from the receipt issued by O.P.(Annex-1) that the complainant purchased his said battery Rickshaw from O.P. Sujata Enterprise on 10/07/14. Now from the definition of ‘ trader’ as per Sec.2(q) of the C.P. Act. 1986 we find that, “ ‘trader’ in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof”. In view of the said definition of ‘Trader’ we have no hesitation to hold that O.P. is a trader / seller of the said batter Rickshaw. Furthermore O.P. has clearly admitted in its W/V paragraph-6 that he is the dealer of the battery operated Rickshaw. It was argued by the side of the O.P. that the case is bad for non in pleading DYS  IMPEX  Pvt. Ltd. & the Exide Industries Ltd. who are necessary parties to this case. He also submitted that if the O.P. is found guilty for deficiency in service in that case the liability lies on the dealer(O.P.) as well as the manufacturer. He referred a case law reported in AIR 2004 Supreme Court 1529 in support of his above submission. In reply Ld. lawyer of the complainant argued that original dealer and the manufacturer i.e. DYS  IMPEX  Pvt. Ltd. & Exide Industries are not necessary parties to this case, and the complainant is entitled to get the reliefs prayed for against the O.P. Sujata Enterprise from whom he purchased the battery Rickshaw in question and Sujata Enterprise is a trader. Ld. lawyer referred the case of Choudhury Automobiles Vs. Anil Kr., reported in(1991) 1 CPR 470,(Horiana C.D.R.C.) in support of this above claim. Now after due consideration of above arguments of Ld. lawyer of the both side and after going through the relevant portion of the case laws referred to above by the Ld. lawyers of both sides we find that in the above case Hon’ble Horiyana  C.D.R.C. has held that, “when the definition of ‘trader’ is read in the light of definitions of ‘complainant’, consumer and complaint, it would seem manifest that the basic privity of contract is between the consumer who has bought the goods for consideration etc. and the trader who has sold them to him either as a seller or distributor thereof. Generally, the primal grievance of the complainant would be against the trader only on the ground that the goods supplied by him suffer from one or more defects. Plainly enough the privity of contract and the relief claimed is against the trader, be that seller or the distributor of the goods..,.......”. The trader alone is thus the primal and necessary party in a complaint of this nature against whom indeed the various reliefs envisaged by the Act may be claimed. It is no where laid down either in Act. or the Rules framed there under that when ever a trader is proceeded against, the original manufacturer of the goods must also be traced and necessarily made a party along with him......Thus, the original manufacturer is not a necessary party in a complainant against the trader for the supply of defective goods”. In view of the guide line given in the said case, and the facts and circumstances of this case and our observation made herein before as per definition of ‘trader’ we find sufficient reason to hold that this case is not bad for non impleading the manufacturer and distributor of batteries in question and accordingly we find and hold that this case is not bad for non joinder of necessary parties as alleged and that the case is well maintainable and that the complainant is a consumer.

The O.P. being a trader/seller/distributor of the battery operated Rickshaw in question and as the O.P. sold the battery Rickshaw in question fitted with four batteries etc. to the complainant on 17/07/14 on receiving Rs,1,21,000/- as price of the same and as the O.P. didn’t replace the defective exhausted batteries to the complainant despite his requests within the stipulated warranty period of 18th months, and thereby the O.P. had caused great hardship to the complainant to earn his bread, so the O.P. is guilty for deficiency in service and the complainant is entitled to get the reliefs specified below:

All points are disposed of accordingly.

In the result the case/application succeeds.

Hence, it is

ORDERED

that the Case/application is allowed on contest with litigation cost of Rs.2,000/-(Rupees thousand)only.

The O.P. Sujata Enterprise is hereby directed to replace the defective batteries of complainant’s battery operated Rickshaw in question by new batteries with in 30 days from the date here of.

The complainant do get an award of Rs.60,000/-(Rupees sixty thousand)only  for his pain sufferings & agony and loss of his income to maintain his family since the date of filing of the case due to aforesaid deficiency in service of the O.P. Sujata Enterprise.

As the manufacturer of the batteries is not a party(O.P.) of this case, no liability can be fixed on the manufacturer of the battery.

The O.P. Sujata Enterprise is hereby directed to pay to the complainant the aforesaid litigation cost of Rs.2,000/-(Rupees tho thousand)only + awarded sum of Rs.60,000/-(Rupees sixty thousand)only = Rs.62,000/-(Rupees sixty two thousand)only in total within 30 days from the date here of failing which the O.P. shall have to pay Rs. 50/-(Rupees fifty)only per day to the complainant as penalty till realisation and the complainant shall be at liberty to realise the same and to compel the O.P. to comply the direction for replacement of batteries by new batteries by putting this order into execution in accordance with law.

Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgment/sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.