Heard learned counsel for the appellant. None appears for the respondents.
2. This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.
3. The case of the complainant in nutshell is that the complainant has purchased a battery from OP No.1 on 14.8.2012 on payment of sum of Rs.10,500/- with warranty certificate. After nine months of its use the complainant found technical problem with the battery and as such stopped functioning. Complainant approached OP No.1 but latter expressed his inability to render any service. Then, complainant approached OP Nos. 2 and 3, but no result. Finding no other way, complainant alleging deficiency in service on the part of the OPs filed the complaint.
4. OP Nos. 1 and 2 were set ex parte.
5. OP No. 3 filed written version stating that neither OP No.1 is the retailer nor OP No. 2 is a wholesaler and there is no agreement entered into between OP Nos. 1 and 2 to deal with their battery. Therefore, OP No. 3 prayed to dismiss the complaint. So, there is no deficiency in service on the part of OP No. 3.
6. After hearing both the parties, the learned District Forumpassed the following order:-
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Keeping in view the above referred case laws, we have come to the conclusion that complaint is tenable. Accordingly, we hereby allow the present complaint with direction to the opposite parties No. 2 & 3 to replace the battery in question with a brand new battery and also to pay Rs.5000/- (Rupees Five Thousand) only as compensation towards mental agony and physical harassment suffered by the complainant. The OPs No. 2 & 3 are also directed to pay Rs.1000/- (Rupees One Thousand) only to the complainant as cost of the litigation expenses.
The order shall be complied within 30 days from the date of receipt of a copy of this order failing which 18% interest shall be charged on the total amount from the date of this order till its realization.
The complaint is disposed of accordingly.”
7. Learned counsel for the appellant submitted that the appellant is no way responsible because the battery has not been sold by him directly to the complainant. Further, he submitted that there is no expert opinion as to defect in the battery. Therefore, he submitted to set aside the impugned order by allowing the appeal.
8. Considered the submission of learned counsel for the appellantand perused the DFR including impugned order.
9. It is admitted fact that the complainant has purchased the batteryfrom OP No.1. It is also admitted fact that OP No. 3 is the manufacturer of battery. It is also not in dispute that battery has got warranty. Complainant is required to prove the deficiency in service on the part of the OPs. It is clear from the warranty card that the complainant has purchased the battery from OP No.1 on payment of Rs.10,500/-. It has got its warranty for eighteen months. When the battery became defective after nine months, it was obligation on the part of OP Nos. 1 and 2 to take away the battery and get it repaired or replace the same and give a new battery in lieu of old one. In the case at hand, OP Nos. 1 and 2 did not appear but OP No. 3 who is the manufacturer appeared. There is no any manufacturing defect found or proved by the complainant but the non-functioning of the battery will be proved by the complainant during warranty period. In such circumstances, refusal orsilence by OPs is deficiency in service on the part of OPs. Since there is deficiency in service, we are of the view that the complainant has proved the case. Therefore, we are not inclined to interfere with the impugned order. Hence, the impugnedorder is confirmed.
10. Theappeal stands dismissed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
