Sri S.K.Sahoo,President.
This is a complaint U/s.35 of C.P.Act,2019 filed by the complainant .
2. Briefly stated the case of the complainant is that he has purchased two numbers of Exide Battery from opp.party No.1 on payment of Rs.22,500.00 on 22.10.2019 vide Tax Invoice Sl. No. 1995. After some days the battery bearing the mark XP 1300 A 119C 300837 was found defective in backup not receiving the charge. The defect was within the warranty and guaranty period, for which the complainant immediately informed opp.party No.1 over Cell No. 9437122232 and lodge a complaint in the month of 10.03.2020. The opp.party No.1 after receiving the complaint refused to give any service due to Covid-19 and advised him to wait till the spot verification by the company. On 23.11.2020 the service engineer of the opp.parties reached at the spot and after proper verification found the battery defective and advised the complainant to remove the battery from the vehicle and produce the same before the opp.party No.1 . On the same day as per the advise of the engineer the complainant produced the battery before opp.party No.1, who registered a claim bearing No. TR/EX/SAM/01557646 dtd.23.11.2020. On the same day the opp.parties issued a letter to the complainant mentioning some false and fabricated reasons relating to the defect in the battery and refused to comply the claim of the complainant. The opp.parties adopted unfair trade practice and there is deficiency in service. Hence this case.
3. Notice was issued to all the opp.parties through Regd. post with A.D on 02.03.2021. The A.D in respect of opp.party No.2 is available in the case record, but he did not appear to contest the case. Opp.party No.1 submitted his show cause in pursuance of notice issued to him. The case opp.party No.1 is that the complaint filed by the complainant against him is not maintainable in the eyes of law. There is no cause of action to file this case against him. The complainant has purchased the batter from opp.party No.1 for Rs.10,000.00. On 12.11.2020 the complainant submitted his battery before him without warranty card , bill or Invoice. The opp.party No.1 supplied s service battery to the complainant and advised him to submit the bill and warranty card. On 19.11.2020 the complainant produced the warranty card and bill before him. The opp.party No.1 requested opp.party No.2 for replacement of the battery . On 23.11.2020 the opp.party No.2 rejected the complaint of the complainant. Opp.party No.2 issued a letter to the complainant, in which he has mentioned that the battery is damaged by external force and by melting . The opp.party No.1 is only authorised dealer for sale and service. He is not responsible for replacement of the battery . The opp.party No.2 is liable for warranty and guaranty . The advocate of the complainant has sent a legal notice to opp.party No.1 & 2 and soon after receipt of the said notice the opp.party No.2 provided a new battery XP-1300 to opp.party No.2 which was received by him . Thereafter the opp.party No.1 informed the complainant regarding the receipt of the new battery from opp.party No. 2. The complainant reached the shop of opp.party No.1 but refused to receive the battery and filed Consumer case. The opp.party No.1 is not liable to pay any amount to the complainant. The be dismissed with cost to opp.party No.1.
4. Admittedly the complainant has purchased a battery bearing No.XP1300 A119C300837 on payment of Rs.10,000.00 to opp.party No.1. The photo copy of the tax Invoice issued by the opp.party No.1 is filed by the complainant which shows that the complainant has purchased the battery on 22.10.2019 from opp.party No.1 on payment of Rs.10,000.00. The complainant also filed the photo copy of the warranty card issued in his favour issued by opp.party No.1. The opp.party No.1 in his show cause admitted about the purchase of the battery by the complainant from him on payment of Rs.10,000.00. It is also admitted by him that on 12.11.2020 the complainant produced the battery before him without warranty card and the Invoice and advised him to produce the bill and warranty card and accordingly the complainant produced those documents before him on 19.11.2020. It is also admitted by opp.party No.1 in his written statement that he had requested the opp.party No.2 for replacement of the battery which was rejected by opp.party No.2 on 23.11.2020. At paragraph- 6 of his show cause the opp.party No.1 admitted that he received a legal notice from the Learned Counsel for the complainant . At paragraph-7 it is admitted by the opp.party No.1 that opp.party No.2 provided a new battery to opp.party No.1 and thereafter opp.party No.1 informed about the same to the complainant but complainant refused to receive and threatened to file Consumer Case. The complainant has filed the photo copy of a letter dtd.23.11.2020 received from opp.party No.2. On perusal of the said letter it appears that the said letter was issued to the complainant with reference to his warranty claim dtd.23.11.2020. The company engineer has mentioned that the battery has been damaged due to external force and melting which may occurred due to short circuit . He opined that the battery is not damaged due to any defect in making the same but it is due to the reasons stated above. It appears from the said letter that the complainant has produced and identified the battery to the engineer of the opp.party No.2 and he examined the same and opined as above. From the complaint petition and from the show cause filed by the opp.party No.1 it is clear that the complainant has not produced the battery before the engineer of opp.party No.2 and although it was with opp.party No.1. The reasoning shown in the report / letter dtd.23.11.2020 by the service engineer is not supported by any reliable evidence. However, when from the material on record it is clear that the damaged battery is with the opp.party No.1, the report of the engineer of opp.party No.2 that it is produced before him by the complainant is not reliable and trust worthy at all. It further appears that the engineer has prepared the said letter dtd.23.11.2020 without examining the battery at all . So no reliance can be placed on such opinion of the engineer of opp.party No.2. On the other hand all the materials available on the case record it is clear that the battery sold to the complainant by opp.party No.1 became defective within warranty period. Opp.party No.1 at paragraph- 7 of his show cause admitted that he has received a new battery from opp.party No.1 and he informed and requested the complainant to receive the same but complainant refused to receive . The opp. Party No.1 has not produced any evidence that he has requested the complainant to receive the new battery from him, although admittedly he has received the same from opp.party No.2. So from the materials on record it is clear that both the opp.parties have not served the complainant as required for replacement of the new battery in place of defective one. There is deficiency in service on the part of both the opp.parties. Due to such conduct the complainant sustained mental agony and harassment. The opp.parties have also adopted unfair trade practice.
5. Hence order:-
: O R D E R:
The case be and same is allowed on contest against opp.party No.1 and exparte against opp.party No.2. Both the opp.parties are directed to replace a new battery in place the damaged one. They are also directed to pay an amount of Rs.10,000.00 (Rupees Ten Thousand) only as compensation towards mental agony, harassment and unfair trade practice. They are also further directed to pay an amount of Rs.5,000.00 (Rupees Five Thousand) only towards cost of litigation . The opp.parties are jointly and severally liable and directed to comply the aforesaid order within one month of receipt of the same, failing which they are liable to pay interest @ 12% p.a till the amount is paid.
