DATE OF FILING: 24.9.2013
DATE OF DISPOSAL: 27.1.2016
Miss S.L.Pattnaik, President:
Alleging defect in goods against the Opposite Parties the complainant filed this dispute in this Forum.
2. Briefly stated the case of the complainant is that the complainant is a bonafide purchaser of two numbers of Exide Mega-1500 batteries bearing Serial No. 3K00-3639, Battery Mfg code No.3KO and sl. No. 3K005077, Battery Mfg. code No. 3KO respectively on dt.9.12.2010 from the authorized dealer of Opposite Party No.1 the Exide Industries ltd. namely as J.R.Battery Center, Aska Road Berhampur (O.P.No.2) for money consideration of Rs.11,500/- each and paid a total sum of Rs.23,000/- to the O.P.No.2 who was issued on payment bill bearing No. Nil dated 9.12.2010 alongwith guaranty and warranty cards. The warranty of the above batteries begins from the date of purchase for a period of three years from 9.12.2010 to 9.12.2013. The authorized service station of Exide Industries Company is M/s Ganapati Enterprisers, Berhampur, the O.P.No.3 and at present the O.P.No.4 M/s Ganesh Agencies, Berhampur (reveals from the reply of the O.P.No.4) who are to give service of the above batteries on behalf of the company. The said service centre holders have failed to give proper service to the petitioner in respect of the aforesaid batteries since 2.4.2012 till filing of this petition. The Opposite parties contravened the terms and condition of the warranty and did not give any service to the complainant as the two batteries are defective batteries and are not functioning properly. The complainant approached the O.Ps several times and requested them to inspect the batteries and to give proper service as well as demanded that the batteries are defective but the O.Ps did not turn up. Lastly, the O.P.No.3 inspected the aforesaid batteries on 26.6.2013 and refused to give any service without any reasonable cause and issued a vague statement alleging some false cause, concealing their own fault and defect and refused to give any service arbitrarily. The illegal and arbitrary statement of the O.Ps are that the batteries are having no adequate electrolyte level and tampering over writing on warranty card, which are completely out of thought and ill intention to not to give any service purpose. The bill, the warranty cards, the batteries and computer bear all relevant information of the batteries and no such tampering of warranty book has made by the complainant. So without proper inspection and verification the vague statement refusing to give service is only out of sight, out of mind. It is the gross deficiency in service by the O.Ps. After a lot of request as the O.Ps did not give any service and refused to perform their service, the complainant issued a legal registered notice to all the O.Ps through his Advocate on dated 16.7.2013 proposing to give proper service and to replace the defective batteries giving two new batteries within a stipulated period. The O.P. No.1 and No.2 received the legal registered notice on dt.17.7.2013 and 22.7.2013 respectively and O.P.No.3 refused to receive the same and directed to serve the notice on O.P.No.4 and O.P.No.4 issued a reply notice to the advocate for the petitioner on dated nil without any signature, which is received by the advocate for the complainant. The reply is negative reply on the legal notice of the complainant. They refused to perform their duty and to give any service to the complainant and challenged the legal notice. Due to supply of two defective batteries to the complainant and failed to give proper service and as such due to their gross deficiency of service, negligence and fraudulent act the complainant suffer a lot in his business as well sustained mental agony, financial loss and wasted his huge money, which can not be compensated, hence the complainant claims compensation. Alleging defect in goods and deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.23,000/- the value of the two batteries, to replace the defective batteries and to supply two new batteries and to pay a sum of Rs.2,00,000/- towards mental agony, financial loss, and cost of litigation Rs.20,000/- in the best interest of justice.
3. Upon notice the Opposite Parties Nos 1&4 entered its appearance through learned counsel and filed written version resisting the claim of the complainant on the ground of non-maintainability before this Forum because there is no cause of action arisen within the territory of Berhampur. The complainant is not maintainable due to non-joinder of necessary parties. A frivolous claim has been made by the complainant, who has no basis, in other words the same is devoid of merits hence liable to be dismissed in limine. There is no privity of contract between the present deponents and the complainant for the purchase of the battery in question. The transaction between the present deponents and the O.P.No.2 are on principal to principal basis and the O.P.No.2 is not the agent of the deponents for any purpose. The batteries manufactured by the present deponents are being purchased by the O.P.No.2 to sell the same to their own customers. The complaint itself being false, baseless and vexatious and a malafide attempt on the part of the complainant for unlawful and unjust enrichment is liable to be dismissed with cost. On 26.6.2013 the answering O.Ps received the batteries in question from the O.P.No.2 but in discharged condition. On verification of said battery, it was found by the Service Engineers of the deponent’s company at Service Station, Berhampur that the said batteries have no adequate electrolyte level and tampering over writing on warranty card rather company’s stickers /Bar codes have been dispatched, not available on the warranty card, which is a condition for acceptance of warranty. Due to such tampering on the warranty card and as per terms of the warranty, the claim of the complainant was rejected and accordingly communicated to O.P.No.2. Copies of claim receipt and delivery chalans are annexed herewith. The aforesaid fact was very much within the knowledge of the complainant and accordingly replied to legal notice. The warranty clearly stipulates the terms and conditions, which has been provided by the answering O.Ps to the batteries manufactured by it and such terms and conditions are binding on both the parties. There is nothing in the record to show that the said batteries have manufacturing defect, rather claim of the complainant was rejected due to none fulfilling of warranty conditions that is non availability of bar code sticker on the warranty card. So the answering O.Ps are not deficient in providing service nor do the batteries in question have any manufacturing defects. Hence, allegations are false, fabricated, concocted, having no basis to be proved with cogent materials, denied specifically. It is stated that the deponents on its every product manufactured by them provided certain months free replacement warranty subject to fulfilling of the conditions stipulated therein. Further categorically mentioned in the warranty card the conditions not covered under warranty even through within the warranty period. But in this case, the claim of the complainant has been rejected on the ground as because same is not covered under warranty conditions. Further answering O.Ps acted as per warranty norms, which is also binding on the complainant, hence the action can not be coined as arbitrary or illegal. There is nothing in the record to show that the answering O.Ps at any point of time acted or indulged in unfair trade practice, while providing prompt service to the complainant. So it is wrong on the part of the complainant to make such type of false allegations, which has no basis. Hence the prayer of the complainant is frivolous, having no merit, rather imaginary liable to be rejected in limine.
4. Despite valid notice, the Opposite Party Nos 2& 3 failed to enter their appearance and as a result they were proceeded ex-parte on 9.12.2013.
5. On the date of hearing we heard argument. We have gone through the complaint petition, version, written argument and documents available in the record. The Opposite Parties contravened the term and condition of the warranty and did not give any service as the two batteries are defective and are not functioning properly during the warranty period. The complainant approached the O.Ps several times and request them to inspect the batteries and to give proper service as well as demanded that the batteries are defectives, but the O.Ps did not turn up. This Forum by relying upon a citation passed by National Commission, New Delhi in Dr. Vijai Prakash Goyal versus The Network Limited 2006 (1) CPR 164 such as: “The purchaser of a machine for commercial purpose is also a consumer in case defect in machine develops during the warranty period”. We feel there is deficiency in service on the part of the O.Ps. In the light of the above decision of law we allow the case and the action of the Opposite Parties have attributed to deficiency in service.
In the result, we direct the Opposite Parties who are jointly and severally liable to replace the defective two numbers of Exide Mega-1500 batteries and to supply new of the same or in alternative to refund the cost of the said batteries Rs.23,000/- (Rupees twenty three thousand) only to the complainant. The complainant is also directed to return the defective two numbers of batteries on receipt of the new in similar description. The Opposite parties also further burdened with compensation and cost of litigation which we quantify to be Rs.2000/- (Rupees Two Thousand) only as a whole in the facts and circumstance of the case which in our considered view, would meet the ends of justice in the instant case. Compliance of the order be made within one month from the date of receipt of the order.
Pronounced in the open Forum today on 27th January 2016.
Copies of the order be supplied to the parties free of cost.
