In the District Consumer Disputes Redressal Forum,

Murshidabad at Berhampore.

Case No. CC/136/2014

Date of filing: 10 /10 /2014                                                                        Date of Final Order: 24/06/2015

 Tamal Gupta,S/O- Late Prasanta Kumar Gupta,

 180, Netaji Road, Flat No.T-3 Komalgandhar Apartment

 P.O.- Khagra., P.S.- Berhampore.

 Dist- Murshidabad, PIN.-742103.(W.B.)…………………………     Complainant             

                                                  Vs

 1).The proprietor, Unicorn Service Agency,

 Head Office 174/175 B.B. Sen Road, Kadai,

P.O.+ P.S.- Berhampore, Dist. Murshidabad.PIN.-742101

2). The Manager,WHIRLPOOL OF INDIA Ltd,

28, NIT.Faridabad (Hariyana) PIN.121001……………………….   Opposite Party

Mr.Swapan Mukherjee, Ld. Advocate………………………………………………….for the Complainant.

Mr. Biswanath Roy &Amit Kumar Muhuri, Ld. Advocates…………………for the Opposite Party.

                                                Present:   Hon’ble President, Anupam Bhattacharyya.           

                                                              Hon’ble Member, Samaresh Kumar Mitra.           

FINAL ORDER

Samaresh Kumar Mitra, Presiding Member.                  

                        The brief facts of the complainant is that he purchased one whirlpool Battery being model No. 13878 , with Model description as WA 165XLFP 12 V Battery with a warranty period of 24 months from OP No.1 on 24.10.2012 . OP No.1 issued warranty manual of OP No.2, the manufacturer of said battery. As the battery was not functioning properly so the complainant informed the OP No.1 who tried his best to make it functioning. Lastly, the complainant, by making a complaint being No. KL 0514018332, dated 24.5.2014, requested the OP No.1 to take necessary action for rectification of defect. But no action has been taken by OP Nos. 1 & 2. Then the complainant served a notice on15.9.2014 to OP Nos. 1 & 2 but they did not reply.                                   So they complainant getting no alternative filed the instant complaint for redressal as prayed for in the prayer portion of the complaint.

                OP No.2 appeared by its advocate and filed written objection and denied the allegation as levelled against him. But he admitted the purchase in Para 5 of the Written Objection.

                 In accordance with the written Version as filed by the OP No.2 the complainant purchased one Battery being WA165XLFP12V being Model No.13878, manufactured by the Opposite Party No.2 from Opposite Party No.1 on October14, 2012 of his choice. The said batter was under warranty for a period of 24 months.

                That the complainant had for the first time lodged the complaint with the OP No.2 on May 24, 2014. The alleged date prior to May 24, 2014 is false and frivolous and it is in fact the complainant had used the said battery for a period of almost two years without any complaint.

                That when the complainant for the first time had lodged his complaint on May 24, 2014 the Service Engineer has promptly visited the Complainant’s place and inspected the said battery. On inspection, the said battery was found to be dead and the Service Engineer on behalf of the OP No.2 had intimated the complainant that the said battery is not available in the market and the OP no.2 is ready and willing to refund the purchase price after deducting the usage charges towards depreciation value. However, the complainant had failed to appreciate the ready and willingness of the OP No.2 and had moved before the Ld. Forum with an ulterior motive.

                That the OP No.2 states and submits that in such circumstances the Ld. Forum may allow the OPNo.2 to refund the purchase price after deducting the usage charges towards depreciation value and settle the matter amicably.

           OP No.1 refused the notice which was send by this Forum on 27.10.2014 and it returned to this Forum with a remark ‘refused’ so the proceeding run ex-parte against him.

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS FOR CONSIDERATION

1).    Whether the Complainant Tamal Gupta ‘Consumer’ of the opposite party?

2).    Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).  Whether the O.P. carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).  Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

5).   Whether the complainant is entitled to relief(s)as prayed for?

                                                     DECISIONS WITH REASONS

                    In the light of discussions herein above we find that the following issues/points should be decided based on the above perspectives.

  1).Whether the Complainant Tamal Gupta is a ‘Consumer’ of the opposite party?

                From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant herein being the customer of OP is entitled to get service from the OPs.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

              Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad and cause of action took place at Berhampore, Murshidabad. The complaint valued at Rs.11200/-+ Intt.@15% andRs.10000/as compensation and Rs.3000/- as cost ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.   

    (3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

              After perusing the Complaint Petition, Written version as filed by the OP No.2 and the documents as filed by the complainant during the time of filing the complaint petition and hearing the argument as advanced by the agent of the complainant it appears that the  complainant purchased the above noted battery from the OP No.1 which is manufactured by the OP No.2 and after a year i.e. within the warrantee period it was not functioning properly so the complainant informed the OP No.1 who tried his best to make it functioning. Lastly, the complainant, by making a complaint being No.KL 0514018332, dated 24.5.2014, requested the OP No.1 to take necessary action for rectification of defect. But no action has been taken by OP Nos. 1 & 2 for which the complainant filed the instant complaint for getting redressal from this Forum. The OP No.2 appeared by its advocate and filed written version in which he denied a few points but agreed to settle the dispute and averred that when the complainant for the first time had lodged his complaint on May 24, 2014 the Service Engineer has promptly visited the Complainant’s place and inspected the said battery and on inspection, the said battery was found to be dead and the Service Engineer on behalf of the OP No.2 had intimated the complainant that the said battery is not available in the market and the OP no.2 is ready and willing to refund the purchase price after deducting the usage charges towards depreciation value. However, the complainant had failed to appreciate the ready and willingness of the OP No.2 and had moved before the Ld. Forum with an ulterior motive.

                That the OP No.2 states and submits that in such circumstances the Ld. Forum may allow the OPNo.2 to refund the purchase price after deducting the usage charges towards depreciation value and settle the matter amicably.

             But the OP No.1 being the distributor of the battery tried to evade his responsibility by refusing the notice as send by this Forum. He did not try to mitigate the problem of the complainant but tried to save his skin. But being the seller of the said article he has responsibility to look after the matter sympathetically so that the complainant gets proper service from the service provider.

           The OP No.2 showed good gesture upon the complainant/customer by agreeing to pay the purchase value of the said article deducting the depreciated value of the goods.  

4.  Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

            The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is deserved to get purchase value of the said battery from the OP No.2 who agreed to pay the same in his written version as well as verbal submission of the advocate of the OP No.2. So, the Opposite Party No.2 is liable to compensate the Complainant as we deem fit and proper.

5. Whether the complainant is entitled to relief(s) prayed for?

       As it is already proved in the discussion at point No. 3, the deficiency in service by the Opposite Party cannot be ousted and it is admitted by the OP No.2 in his written version as such the Complainant is entitled to get relief(s).

        Hence it is ordered that the complaint be and the same is allowed on consent by the parties with a litigation cost of Rs.2000/- to be paid by the OP No.2.

       The Opposite party No.2 is hereby directed to pay the amount of Rs.11,200/- which is the purchase value of the battery in question in accordance with the invoice cum challan to this complainant within 45 days from the receipt of the final order. No other relief (s) is awarded to the complainant.

        At the event of failure to comply with the order the Opposite Party shall pay fine @Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

          Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgement/ be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.

 Dictated and Corrected by me.

      Member,                                                                             President,

   District Consumer Disputes                                                    District Consumer Disputes                                            Redressal Forum, Murshidabad.                                            Redressal Forum, Murshidabad.