Tamil Nadu

North Chennai

142/2014

D.V.Nagendranath Gupta,Proprietor,Vijaya Chemicals & Toilet works, - Complainant(s)

Versus

The Manager,The NYFE Battery Company, - Opp.Party(s)

A.Palaniappan

28 Apr 2017

ORDER

 

                                                            Complaint presented on:  18.06.2014

                                                                Order pronounced on:  28.04.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY  THE 28^th  DAY OF APRIL 2017

 

C.C.NO.142/2014

 

 

Mr.D.V.Nagendranath Gupa,

Proprietor,

Vijaya Chemicals and Toilet Works,

No.23/27, Panchalai Amman Koil Street,

Arumbakkam, Chennai – 600 106.

                                                                                 ….. Complainant

 

..Vs..

1.The Manager,

The NYFE Battery Company,

No.23, Hunters Road,

Vepery, Chennai – 600 007.

 

2.The Manager,

Soundry Power Systems,

No.A1-118A, New No.A1-14,

8^th MainRoad, Shanthi Colony,

Anna Nagar, Chennai – 600 040.

 

.....Opposite Parties

Date of complaint                                 : 18.07.2014

Counsel for Complainant                      : M/s.A.Palaniappan & V.G.Suresh

                                                                    Kumar

 

Counsel for 1^st Opposite Party                : M/s.V.Balaji, A.Sermaraj

 

Counsel for 2^nd Opposite Party                : Mr.V.Manisekaran, M.Prakasam

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Parties to refund the sum of Rs.92,380/- being the cost of the inverter and also compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The 1^st Opposite Party is the authorized dealer for APC inverters and the 2^nd Opposite Party is the authorized service provider.  The Complainant purchased an APC Inverter Model No.SUA2200 UXI from the 1^st Opposite Party on 29.3.2012 with eight Exide batteries for Rs.92,380/-.  The Inverter and the backup would ensure uninterrupted supply for a minimum period of four hours.  The period of warranty stipulated was for two years.

          2. From the inception, the battery backup was very poor and on disruption of power supply the backup would function only for 10 minutes and thereafter, the Inverter would shut down.  This is because the batteries installed did not support the inverter and the Complainant was unable to utilize the inverter.  The service engineers of the 2^nd Opposite Party informed that the batteries installed where not suitable for the inverter and recommended replacement of the batteries. The defective Exide batteries originally installed were taken on 29.9.2012 and provided with rocket batteries.  The 1^st Opposite Party demanded the Complainant to pay a sum of Rs.48.000/- as cost for replacing with new batteries, which is against the terms of the warranty.  The Complainant issued repeated letters in this regard have been of no avail.  Hence the Complainant filed this Complaint to direct the Opposite Parties to refund the sum of Rs.92,380/- being the cost of the inverter and also compensation for mental agony with cost of the complaint.

3. WRITTEN VERSION OF THE 1^st  OPPOSITE PARTY IN BRIEF:

          The Complaint is barred by limitation.  The batteries were supplied on 29.3.2012. The complaint ought to have been filed on or before 29.03.2014 within a period of two years.  Hence the Complaint is filed out of time.  The Complainant has purchased the batteries for commercial purpose.  Hence the Complainant is not the consumer under the Consumer Protection Act.  The Complainant placed the order for supply of two invertors and 8 batteries.  The first Opposite Party has supplied the said invertors and batteries under the invoice No.7602 dated 29.3.2012.  The batteries have one year pro-data guarantee and investors have two years warranty.  The total cost of invertor and batteries are Rs. 97,000/- and the complainant has paid Rs.92,000/-.  Still the complainant is liable to pay Rs.5,000/- to the first Opposite Party on 28.9.2012.

4.  There was a Complaint from the Complainant.  It was attended by the first Opposite Party.  During inspection it was found that the first Opposite Party is operating Genset.  It is due to operation of Genset there was fluctuation and batteries back up goes down.  Hence one spare battery support was given. On 7.5.2013 the authorized service personal inspected the invertors.  They have suggested SMF Battery.  As per the report of the first Opposite Party have supplied two sets of Batteries on 17.5.2013 and 18.5.2013 by removing Exide batteries.  The first Opposite Party states that till today the Complainant is utilizing the Racket Batteries supplied by the first Opposite Party.  Infact, the second opposite party during their inspection also certified that batteries are working normally. Hence this Opposite Party prays to dismiss the Complaint with cost.

5. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          It is admitted that the first Opposite Party is authorized dealer for APC UPS, and the 2^nd Opposite Party is the authorized service provider for the APC UPS.  The Complainant had purchased a APC UPS, Model number SUA 2200UXI from the first Opposite Party.  The service Engineer of the 2^nd Opposite Party checked up the UPS on 16.10.2012, he made a remark that distilled water filled automotive battery is not suitable for UPS and SMF battery is only suitable for that UPS, but inspite of that, the complainant continued to use the distilled water filled automotive battery.  In respect of terms of the guarantee, the 2^nd Opposite Party is nothing to do with that.  The 2^nd Opposite Party Technician attended the complainant UPS on 10.10.2012, 12.4.2013 and 7.5.2013.  In all the occasions, the technician of the 2^nd Opposite Party had made an entry in the field service and the site visit report stating that UPS is in normal condition and the batteries are advised to replace.  The complainant did not replace the batteries as advised by the 2^nd Opposite Party.  There is no defect in APC UPS and the batteries are not purchased from APC.  Hence this Opposite Party prays to dismiss the Complaint with cost.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

 

7. POINT NO :1 

          The admitted facts are that the Complainant purchased two sets of 48 volt APC make inverters with eight numbers Exide battery packup from the 1^st Opposite Party/dealer under Ex-A1 under invoice for valuable consideration with two years warranty and the Complainant  wrote Ex-A2 letter to the 1^st Opposite Party that the battery did not support the inverter and there after the Opposite Parties have replaced batteries with rocket battery under Ex-A3 and there after the Complainant issued Ex-A4 notice to the Opposite Parties and the same was acknowledged by the Opposite Parties.  The Complainant contented that even after replacement of the battery the inverter is not working and therefore the product supplied to the Complainant is defective and therefore they have committed deficiency in service. 

          8. The 1^st Opposite Party contented that

(1) the Complaint is barred by the limitation,

(2) the Complainant is not a consumer and

(3) even on merits this Opposite Party has not committed any deficiency in service.

          9. The 2^nd Opposite Party would contend that he is a service provider and he had not provided any service to the Complainant and hence he had not committed any deficiency in service.

          10. The Complainant purchased the product on 29.3.2012.  The 1^st Opposite Party would contend that  from the date of purchase, the Complaint should have been filed with in a period of two years i.e. on or before 28.3.2014.  However, the admitted fact is that under Ex-A3 dated 8.12.2012 the battery was replaced with rocket batteries.  The 1^st Opposite Party issued Ex-A3 receipt for replacing the said batteries.  Now the Complainant would argue that even the replaced battery is not working and become defective.  Therefore, the date of replacement of battery on 8.12.2012 also gives cause of action to file the Complaint.  From such cause of action the Complaint is filed within two years on 3.7.2014 and therefore we hold that the Complaint is not barred by limitation.

          11. The next point is whether the Complainant is a consumer.  The Complainant is a proprietor of Vijay Chemicals and Toilet works.  The learned counsel for the Opposite Party argued that the complainant purchased the product for his business place and therefore the Complainant purchased the product for commercial purpose and hence he is not a consumer.  The product purchased by the Complainant not for resale and he kept the same in his business place for uninterrupted power supply in his business place.  It is not the case of the 1^st Opposite Party that the Complainant used the product for manufacturing the chemicals for toilet works and thereby to earn profit.  The Complainant replied that only in the absence of electric supply to have power supply to burn lights he has purchased the product and he is carrying on business only for his lively hood.  Therefore,  it is crystal clear that the product purchased by the Complainant has not been used to augment income through his business or for resale and hence, it is held that the Complainant is only a consumer. 

          12. The 1^st Opposite Party counsel argued that in para 5 of the written version of the 2^nd Opposite Party he only replaced the batteries and not by him and further he is only a dealer and the manufacturer of the Exit batteries have not been added as a party and further the Complainant opperating the Genset with the inverter and therefore the batteries have not supported and failed and therefore this Opposite Party has not committed any deficiency in service.

          13. The 2^nd Opposite Party pleaded in his written version that his engineer checked the product and stating that UPS is in normal condition and the batteries are advised to replace.  This statement of the 2^nd Opposite Party to replace the battery proves that the battery is a defective one.  Such batteries are sold only by the 1^st Opposite Party.  The 2^nd Opposite Party service engineer never said that the Complainant was using Genset.  Therefore the Complainant was using Genset and the product was failed cannot be accepted.  Further, the 1^st Opposite Party supplied for replacement of batteries through his company receipt under Ex-A3.  Hence this fact clears that the 1^st Opposite Party only supplied the batteries after knowing the defects in the batteries which he had already sold under Ex-A1.  In such circumstances the manufacturer of the battery was not added as party cannot be reason to reject the Complaint.

          14. From the foregoing discussions the replacement of battery proves defects in the Exit battery supplied by the 1^st Opposite Party and also the replaced batteries supplied under Ex-A3 did not work and therefore by selling the defective batteries the 1^st Opposite Party has committed deficiency in service.

          15. As far as the 2^nd Opposite Party concerned he is only a service provider and the complainant did not allege any defective service done by him and therefore it is held that the 2^nd Opposite Party has not committed any deficiency in service.

16. POINT NO:2

          Having the product sold to the Complainant is a defective one and hence the Complainant seeks refund of the cost of the product of Rs.92,380/- shall be ordered to be refunded to him by the 1^st Opposite Party.  Due to deficiency in service committed by the 1^st Opposite Party, the Complainant suffered with mental agony is accepted and for the same it would be appropriate to order a sum of Rs.10,000/- by way of compensation besides a sum of Rs.5,000/- towards litigation expenses. The Complainant in respect of the 2^nd Opposite Party is liable to be dismissed.

          In the result the Complaint is partly allowed. The 1^st Opposite Party is ordered to refund a sum of Rs.92,380/- (Rupees ninety two  thousand  three hundred and eighty only) towards the Cost of the product  and simultaneously  the Complainant also should handover the product to the 1^st Opposite Party  and the 1^st Opposite Party  also to pay  a sum of Rs. 10,000/- (Rupees Ten  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.  The Complaint in respect of the 2^nd Opposite Party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th  day of April 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 29.03.2012                   Invoice issued by the Opposite Party

Ex.A2 dated 26.09.2012                   Letter sent to the Opposite Parties by the

                                                   Complainant

 

Ex.A3 dated 08.12.2012                   Receipt issued by Opposite Parties

 

 

Ex.A4 dated 20.08.2013                   Legal Notice issued by the Complainant to the

                                                   Opposite Parties

 

Ex.A5 dated NIL                     Acknowledgement Card

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

 

Ex.B1 dated 13.09.2013                   Reply Notice

 

LIST OF DOCUMENTS FILED BY THE 2^nd  OPPOSITE PARTY :

 

                                                ……. NIL ……..

 

 

 

 

MEMBER – II                                                               PRESIDENT