By Jayasree Kallat, Member

 

            The petition was filed on 04.09.08. The complainant purchased an MHP 1300Exide express Battery on 10.12.07 paying Rs.8100/- from the first opposite party for using it in his own bus.    The first opposite party had offered 18 months’ warranty with free replacement facility for the battery. After six months from the installation of the battery in complainants bus on 24.06.08 the battery burst and got damaged. Complainant had immediately informed the matter to the first opposite party. The first opposite party had sent a mechanic for inspection. After inspection the mechanic took the battery and installed a spare battery in the bus owned by the complainant. The first opposite party had assured that they have sent the   battery to the second opposite party and battery will be replaced within one week. Second opposite party refused to replace the damaged battery. The battery was functioning for the first six months of purchase, but later on it became damaged. The complainant is alleging negligence and deficiency in service on the part of the opposite parties. Hence this petition.

The version was filed jointly by the first and second opposite parties, denying the allegations in the complaint except which are specifically admitted.   The complainant is not a consumer as defined in the consumer protection Act. The first opposite party is an authorized retail distributor of the second opposite party. The second opposite party is the wholesale distributor of the Exide Auto Batteries. Opposite party admits that the complainant had purchased one MHP 1300 Exide Express Battery on 10.12.07. The battery was having a warranty of 18 months. The battery was used in the bus owned by the complainant; hence it was used for a commercial purpose.   So the complainant is not a consumer as defined in the consumer protection Act. The complainant had complained that the battery got damaged. The first opposite party had sent a mechanic for inspection. After inspecting the damaged battery the mechanic had installed a spare battery in the complainant’s bus. The service Engineer had opined that the –ve terminal of the battery was found to be melted, which was due to improper handling of the battery by the complainant. Such improper handling and damage caused thus is excluded from the terms of the warranty, the claim of the complainant for replacement was rejected by the opposite parties. The battery given to the complainant is one of the best qualities available in the market. The battery got damaged due to improper handling. Opposite parties 1 & 2 also submitted that the manufacturer of the battery M/s. Exide Industries Ltd., is not a party in this case. Hence this complaint is bad for non- joinder of necessary parties. The complainant is not entitled to get any of the relief claimed in the complaint. Opposite parties prays to dismiss the petition with costs to OP.

            The complainant had impleaded OP No.3 as the manufacturer, notice was sent to the OP No.3.  Notice received. OP No.3 did not appear before the forum or file any version. Hence OP No.3 was called absent and set exparte.

Points for consideration –

Point No1. Whether the complainant will come under the consumer protection

                     Act?

Point No.2- Whether the complainant is entitled for any relief sought in the

                    Petition?

            The complainant was examined as PW1 and Ext. A1 to A6 were marked on complainant’s side. Opposite parties did not adduce any evidence or mark any documents on the side of opposite parties.

            Point No.1: The complainant’s case is that he is the owner of the bus. He had purchased a battery for using in the bus. Notice was issued to the complainant only for hearing the preliminary issue whether the purchase of battery for the bus is for commercial purpose or not.  Issue of maintainability was heard. Complainant argued that the defects occurred within the warranty period. Under section 2d (ii) of the consumer protection Act there is no bar for commercial purpose as regarding service within the warranty period, even if it is purchased for commercial purpose. Complainant also quoted 1992 CPJ 292 and 1992(1) page 272(2). After the hearing of the complainant, the court was convinced and the petition was admitted, and notice was issued to the opposite parties as the forum found that the complainant in this case will come under consumer protection Act.

            Point No.2 - Complainant had purchased a battery for using in his bus .The battery carried a warranty of 18 months. Opposite parties had admitted in their version that the battery had a warranty of 18 months. According to the complainant the battery became defective after six months of purchase. The mechanic of the opposite parties had inspected and finding fault had replaced with a spare battery. Opposite parties 1 & 2 had admitted this fact, which means that the battery became defective after six months. The opposite parties had not attended the complaints of the petitioner after giving a spare battery. The complainant had requested several times to replace with a new defect free battery but the opposite parties did not respond to the requests of the complainant.

            Even though the opposite parties had stated that the damaged battery of the complainant was inspected by the Engineer, opposite parties have not produced any report regarding the damage. But instead they have taken away the damaged battery and provided the complainant with a spare battery. We are of the opinion that the complainant’s battery became damaged within the warranty period. Not replacing battery which was damaged within the warranty period is negligence on the part of the opposite parties. According to the forum the opposite parties were deficient in their service. Hence we are of the opinion that the complainant is entitled for relief.

            In the result petition is allowed and opposite parties are directed to return back Rs.8100/- along with a compensation of Rs.1000/- and cost of Rs.500/- to the complainant within one week of receipt of the copy of the order. Opposite parties 1, 2, & 3  are jointly and severally liable to pay the amount to the complainant.

 

            Pronounced in the open court this the 30th day of July 2010.

Date of filing:04-09-08.

 

SD/-PRESIDENT                              SD-MEMBER              SD/-MEMBER

 

APPENDIX

 

Documents exhibited for the complainant:

A1.Photocopy of invoice No.1952 dtd.10.01.2007.

A2. Photocopy of warranty book let dtd. 10.12.2007.

A3. Copy of the lawyer notice dtd10.07.08 with 2 postal receipts.

A4. Acknowledgement card dtd. 11.07.08.

A5. Reply notice dated 02.08.08 issued on behalf of OP No.1.

A6.Returned Envelop.

 

Documents exhibited for the opposite party:

   Nil

 

Witness examined for the complainant.

PW1. Vijayan.K (Complainant)

 

Witness examined for the opposite party:

               None.

                                                                        Sd/- President

 

//True copy//

 

                                                (Forwarded/By order)

 

 

 

SENIOR SUPERINTENDENT