West Bengal

Dakshin Dinajpur

CC/46/2019

Sri Subhajit Kundu, S/O- Nibaran kundu - Complainant(s)

Versus

The Friends Automobiles, Prop. Amiya Roy - Opp.Party(s)

07 Apr 2022

ORDER

The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Parties claiming an amount of Rs. 26.840/- + Compensation Rs.96000/- + Excess Electric Bill of Rs. 12,000/- + Litigation Cost of Rs. 10,000/- (Total Rs. 1,44,840)..

The fact of the case, in brief, is that the Complainant purchased two Exide Battery on 23.09.2017 and two Exide Battery on 19.10.2017 for his E- Ricksaw from the shop of Friends Automobile. The warranty period of the said battery was 12 months. After seven days, the Complainant came to know that those battery were defective batteries. Then, the Complainant went to the Opposite Party No.1 who is the dealer of the Opposite Party No.2 and made a complaint orally. The Opposite Party No.1 told the Complainant to use the said batteries some days more. After few days, the Complainant again met with the Opposite Party No.1 and sent two batteries to the Opposite Party No.2. The Opposite Party No.2 changed one battery and the second battery was returned back saying OK and Return by SMS. The Complainant again made contact with help line no. of the Opposite Party No.2 and prayed for an arrangement instead of the defective batteries but the Opposite Party No.2 again returned the defective batteries saying OK and Return by SMS and told the Complainant to receive those batteries. The Complainant received the said batteries and found that the batteries were fully defective. Due to the defective batteries, the Complainant was compelled to pay heavy electric charges. The Complainant sent the third battery to the Opposite Party No.1 but the Opposite Party No.2 again return the third battery saying OK and Return. On 16.04.2018 the Complainant again contacted with the Opposite Party No.2 the Opposite Party No.2 told to make a complaint. On 20.04.2018 when Complainant contacted with the Opposite Party No.2 then came to know that the said complaint has been cancelled. On 20.04.2018, the Complainant again made a complaint and he received through SMS that service engineer after closure of complaint. On 30.04.2018, the Complainant came to know that his second complaint has also been cancelled .The Complainant again made contact with the Opposite Party No.2 but the Opposite Party No.2 told that the batteries are in good condition.

     Having no alternative the Complainant filed the instant case for relief as prayed in the plaint.

            Notice was duly served upon the opposite Parties and after receiving the notice, the Opposite Parties appeared before this Commission and filed their written version.

            By filing written version, the Opposite Party No.1 has stated that the Complainant purchased one battery on23.09.2017 vide battery SL no. A1H&H3033951172 and two batteries on19.10.2017 vide battery SL nos. A1H7Hh301724-1H74 & A3F&J001659-3G74 from the shop of. The Opposite Party No.1 and invoice were issued accordingly. Subsequently the Complainant came to the Opposite Party No.1 with complaint and Opposite Party No.1 duly ventilated the grievance to the concerned authority of the company by electronic means. Thereafter, the Complainant submitted his disputed batteries on03.04.2018 vide battery SL no.A1H7H3033951172 and on10.04.2018 vide battery SL no.A1H7H301724-1H74. Thereafter, the company replaced one battery against battery SL no. A1H7H301724-1H74 on 10.04.2018 and the another battery vide SL no.A1H7H301724-1H74 found to be O.K. after testing by the company and it was returned to the Complainant with such remarks and he acknowledged the same. But the Complainant decline to submit his another battery i.e. 3^rd one vide battery SL no.A3F7J001659-3G74. All the three batteries are under the custody of the Complainant and he is using those batteries and as such he refused to submit those batteries for replacement. Moreover, during the transitional period the Opposite Party No.1 made alternative arrangement by providing batteries to the Complainant to fulfill his need with condition to return those articles after getting the replacement batteries from the end of the company. There is no willful negligent or refusal or no deficiency on the part of the Opposite Party No.1. So, this Opposite Party No.1 should be discharged from this case.

           The Opposite Party No.2 by filing written version, has submitted that the Complainant had purchased the E-Rickshaw battery vide serial nos. (i).A1H7H301734-1H74 and (ii) A3F7J001659-3G74 both dated 19.10.2017 and (iii) A1H303395 dated 23.09.2017 for E-Rickshaw fitment from Opposite Party No.1. The Complainant alleges that eventually the Complaint found certain defects in the batteries purchased by the Complainant and approached the Opposite Party No.1 for getting the battery replaced. The Opposite Party No.1 forwarded the batteries to the dealer of the Opposite Party No.2. When the batteries were given to the Opposite Party No.2, the batteries were in workable condition, thus the same were returned to the dealer and the dealer returned the batteries to the Complainant and the Complainant accepted and acknowledged the same. Again, after some days the Complainant again called the helpline number of the Opposite Party No.2 and immediate assistance was provided . On inspection, it was found that the electrical wire used by the Complainant in the E-Rickshaw was not befitting as a result of which there was no ventilation in the battery holding, thus the battery was not working. Upon intimating the Complainant regarding the said fault on Complainant’s part, the Complainant did not accept any negligence on his part. The Complainant’s intention was to harass the Opposite Party No. 2. The Complainant has filed the instant complaint with mala-fide intentions and has falsely implicated the Opposite Party No.2 in this case just to make unwarranted gains from the Opposite Party No.2. The instant case is liable to be dismissed with cost of Rs.20,000/- payable to the Opposite Party No.2.  

            To prove his case, the complainant has filed (i) Invoice no.038 dated 19.10.2017 (ii) Invoice no.051 dated 23.09.2017(iii) Two claim receipt note/ Delivery challan of Exide Industries Ltd. (iv) An Affidavit (v) Two electric bill of WBSEDCL which are not readable. (vi) Invoice no.070 dated 31.05.2018.

          On the other hand, the Opposite Party No.1 filed (i) photo copy of order no.12 dated 02.01.2019 of this Commission in CC/53/2018 (ii) photo copy of correspondence in between the dealer and the company..

The Opposite Party No.2 have failed to file any document in support of his  defense.

In view of the above mentioned facts, the following points are cropped up for consideration  

       POINTS FOR CONSIDERATION

 

          1.  Whether the Complainant is a consumer to the Opposite Party?

      2.  Whether there is any deficiency in service on the part of the Opposite party?

      3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                          DECISION WITH REASONS

 

           We have heard argument by the complainant and Ld. Advocate for the opposite parties at length. We have also gone through the written argument filed by the parties as well as the evidence on affidavit. Perused the other materials on record.   

            At the time of argument the Complainant himself narrated the fact of the case as mentioned in the plaint. He further submitted that the Complainant is a consumer to the Opposite Party and there is deficiency in service on the part of the Opposite Parties. The Complainant has successfully proved his case. So, the Complainant is entitled to get relief as prayed for.

            On the other hand, Ld. Advocate for the Opposite Parties also narrated their defense case as mentioned in the written version. Ld. advocates for the Opposite Party No1 & 2 separately submitted that there is no negligence or deficiency in service on their part. They further submitted that the electric wire in the E-Rickshaw was not befitting and the Complainant blamed that there was defect in the battery. The Complainant is not entitled to get compensation because the Opposite Party never harassed him.           

 Now, let us discuss all the points one by one. 

 

Point No. 1 

          

          On perusal of materials on record, it appears that the Complainant purchased battery from the Opposite Parties for his E-Rickshaw. thus, there arose a relation in between the Complainant and Opposite Parties as consumer and service provider. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Party according to section (2) of Consumer Protection Act,1986 . 

           Accordingly, this point is decided in favour of the Complainant.  

 

Point Nos. 2 & 3 

        

                 Both these points are taken up together for discussion for the sake of convenience and brevity.  

                 On careful scrutiny of the materials on record, it appears that the Complainant had filed a case being no.CC/53/2018 against the same Opposite Parties on the same cause of action but due to non-appearance of the Complainant before this Commission on several occasions , the said case was dismissed for default. Thereafter, the Complainant again filed this case on the same cause of action.

                  The Opposite Party No.1 runs a shop in the name & style Friends Automobile. He used to purchase batteries from the dealer of the Opposite Party No.2 and sell the same to the customer. The Opposite Party No.2 is the company, Exide Industries Ltd. 

                 Now, the Complainant has stated in his complaint that he purchased two batteries on 23.09.2017 and two batteries on 19.10.2017 from the shop of the Opposite Party No.1 but the invoice no. 038 dated 19.10.2017 shows that the Complainant purchased two batteries and the invoice no.051 dated 23.09.2017 shows that the Complainant purchased one battery whereas it is admitted by the Complainant that four batteries are required to run E-Rickshaw. The Complainant has not disclosed about the fourth battery that he had already possessed the fourth battery with him..

                However, after purchase of the said three batteries having warranty of 12 months, after seven days, he found that the said batteries are defective. Then and there, the Complainant informed the Opposite Party No.1 regarding the defective. The Opposite Party No. 1, then informed the dispute to the distributor/dealer of the Opposite Party No.2 who informed the matter to the Opposite Party No.2. Thereafter, after testing, the Opposite Party No.2 replaced one battery and the rest two batteries were declared O.K. and returned to the Complainant. After receiving those batteries, and after charging he found that the two battery which were returned have gone bad to worse. The Complainant again complained to the Oppose Party No.2 over help line no. and the Complainant was asked to lodge complaint. The Complainant lodged complaint to the Opposite Party no.2 but the said complaint was cancelled on the ground that the engineers of the Opposite Party No.2 after testing those batteries declared O.K. The copy of SMS filed by the Opposite Party No.1 proved the same.

              It is contented by the Complainant that due to the defective batteries, the Complainant used to pay heavy electric charges and he has submitted electric bill in support of his contention. On the other hand, It is submitted by the Opposite Party No.2 that on inspection, it was found that the electrical wire used by the Complainant in the E-Rickshaw was not befitting as a result of which there was no ventilation in the battery and the batteries were not working. But the Opposite Party No.2 has failed to produce the inspection report before this Commission. In want of inspection report, the contention of the Opposite Party can not be believed. 

              In cross-examination, the Complainant has admitted that he is a civic volunteer and he use to work in the night and run E-Rickshaw in the day time. As he is very poor man so he uses to do so. It is also admitted by the Complainant that when he got puzzled to get the defective batteries replaced by the Opposite Parties, he stop to fight with the Opposite Parties and purchase another three new batteries from the Opposite Party No.1 vide invoice no.070 dated 31.05.2018 for the purpose of running  the E-Rickshaw. He has also admitted that all the defective batteries are with him but worthless. 

             Here, we opine that the Opposite Party No.2 is the manufacturer of the batteries and due to the manufacturing defect the batteries were not workable. Although, it is contented by the Opposite Party No 2 that after testing it is found that those batteries were workable but the Opposite Party No.2 failed to produce the testing report done by his engineers.

              In such circumstances, we are of opinion that there is willful negligence and deficiency in service on the part of the Opposite Party No. 2. 

                    Now, it is admitted fact that the Complainant purchased three batteries from Opposite Party No.1 by invoice no.038 vide serial no.A1H7H301724-1H74 and serial no.A3F7J001659-3G74 on 19.10.2017 and by invoice no.051 vide serial no.A1H7H3033951172 on 23.09.2017. When the Complainant reported to the Opposite Party No.1that the batteries are defective, then the Opposite Party No.1 arranged to replace one battery against  serial no. A1H7H301724-1H74 from opposite party no. 2 but the rest two batteries were returned back to the Complainant saying that those two batteries were O.K. by the opposite party no. 2 but in fact those two batteries were still defective because of manufacturing defect and those two batteries are still in the possession of the Complainant. As the Complainant had to run his E-Rickshaw so, he purchased another three batteries by invoice no.070 on 31.05.2018 from the Opposite Party No.1. Here, we opine that those two batteries being serial no.A3F7J001659-3G74 and serial no.A1H7H3033951172 which were still defective, are required to be replaced by Opposite Party No. 2.

                     Opposite party No. 1 is only a middle man in between the complainant & opposite party no. 2, we opine that  the principal agent cannot be personally liable is applicable in proceedings under C.P. Act.

                      In view of the above mentioned discussions, it has been established that the Complainant is a bona-fide consumer to the Opposite Parties No.1 & 2 and there is deficiency in service on the part of the Opposite Party No. 2.

                               Accordingly, both these points are decided in favour of the Complainant. 

Hence, it is

                                               

                                                    O R D E R E D

           

                     That the Consumer Case No. 46 of 2019 is hereby allowed on contest in part but with cost. 

                      The Opposite Party No.1 is directed to arrange for replacement of the defective batteries being serial no. A3F7J001659-3G74 and serial no. A1H7H3033951172 by Opposite party no. 2 else opposite party no. 2 to pay a sum of Rs.26,840/- along with an interest @ 8% from 23.09.2017 by issuing an account payee cheque in favour of the Complainant within 45 days from the date of passing of this order. The Complainant is directed to hand over these two batteries to the Opposite Party No.1 within 15 days. The Opposite Party No. 2 is also directed to pay Rs. 5,000/- toward litigation cost and Rs.5,000/- towards compensation failing which the Complainant is at liberty to execute the order as per law.  

                  Let a plain copy of this order be supplied to the parties free of cost.