State Consumer Disputes Redressal Commission
M/S, Shitova Tyre Redreader & Others vs Khulem Nimai Singh on 4 September, 2017
BEFORE THE MANIPUR STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
(STATE COMMISSION)
IMPHAL
MANIPUR
First Appeal No. A/3/2017
(Arisen out of Order Dated 12/10/2016 in Case No. cc/10/2016 of District Imphal)
M/S, Shitova tyre Redreader Vs. Khulem Nimai Singh
& Others
BEFORE:
HON'BLE MR. JUSTICE T.Nandakumar PRESIDENT
HON'BLE MR. M.Padmeshwor Singh JUDICIAL MEMBER
HON'BLE MRS. A.Nibedita Devi MEMBER
For the Mr. S. Samarjeet, Advocate
Appellant:
For the
Mr.David Boon, Advocate
Respondent:
Dated : 04 Sep 2017
ORDER
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against Judgment and Order dated 12.10.2016 of the learned District Consumer Disputes Redressal Forum, Imphal passed in Complaint Case No. 10 of 2016.
2. By the impugned judgment and order dated 12.10.2016, the learned District Consumer Disputes Redressal Forum, Imphal directed the appellant to pay a compensation of (i) Rs. 1300/- (Rupees one thousand three hundred) as cost of battery; (ii) Rs. 8000/- (Rupees eight thousand) towards mental agony; and (iii) Rs. 5000/- (Rupees five thousand) for the cost of litigation totaling Rs 14,300/- (Rupees fourteen thousand three hundred) only to the complainant/respondent; and after one month 8% interest per month shall be charged.
3. Heard Mr. S. Samarjit Singh, learned counsel appearing for the appellant and Mr. Kh. Lupenjit Singh, learned counsel appearing for the respondent.
4. For deciding the present appeal, it may not be required to discuss the fact of the case leading to filing of the Complaint Case No. 10 of 2016 and also the fact of the Appellant's case in detail, in as much as, the impugned judgment and order itself had clearly mentioned the fact of the case of the parties in detail. However, only minimal fact required for deciding the matter in issue in the present appeal is noted. On 10.10.2015 the complainant/respondent went to the appellant/opposite party's shop to purchase a battery for use in his kinetic Honda scooter at the cost of Rs. 1,300/- (Rupees one thousand three hundred) only. The particulars of the battery of the Kinetic Honda purchased by the respondent/complainant are clearly mentioned in the complaint and read as -1- "FXRO-12XR5L-B (EXITE XTREME (5 AH EXIDE XTREME)". For purchasing that battery the appellant also issued the Cash Memo being Invoice No. 135 dated 10.10.2015. It is the admitted case of both the parties that the appellant is a authorized dealer of the Exide Company and warranty period for the said battery was 24 months from the date of purchase of the battery and the battery would be replaced by a new one if there be any defect in the battery.
5. After using the said battery for about 4 (four) months i.e. in the month of February, 2016, the said battery was not working properly as the charge of the battery began to decrease gradually on account of the low charge of the battery and with that battery the Kinetic Honda scooter was unable to start. On 28.02.2016, the complainant/respondent went to the appellant's shop and made a complaint that the said battery began to decrease the charge gradually on account of which the scooter was unable to start. The appellant checked the said battery and recharged it in their shop and gave it back to the complainant/respondent by giving assurance that nothing will happen again. Again after 2-3 days, the said battery started to decrease its charge and on account of which the scooter was unable to start. The appellant again re-charged the said battery in his shop and gave it to the complainant by giving full assurance that the battery will be alright for use and no defect will rise again.
6. On 01.04.2016, the said battery again started to decrease its charge gradually and the vehicle was unable to start with the said battery. The complainant/respondent requested the appellant to provide a new battery as the battery was within the warranty period of 24 months from the date of purchase. But the appellant refused to entertain the complaint. It is the further case of the complainant/respondent that the repeated visits of the complainant/respondent to the appellant's shop for replacing the said battery by a new one caused mental agony, undue hardships and for which the appellant was to pay a compensation of Rs. 10,000/-. The prayer of the complainant/respondent in the Complaint Case No. 10 of 2016 reads as follow :
" Prayer The Complainant therefore prays that the Hon'ble Forum be pleased to award the cost of loss for Rs. 1,300/- (Rupees one thousand three hundred) and also to replace the said battery to ( sic by) new one which was charge in excess and compensation of Rs. 50,000/- (rupees fifty thousand) only along with the cost of litigation for Rs. 20,000/- (Rupees twenty thousand) and further take the leave of the Hon'ble Forum that Original documents and Battery be allowed to present at the time of hearing. The complainant further crave the Hon'ble Forum to consider the fact that one in the thousand customer who had been duped come forward with a belief that the protection of the consumer is protected so it is a high time to immediately stop and deterred such malpractice and made an example by awarding harsh punishment along with huge compensation."
7. The appellant filed the written statement in Complaint Case No. 10 of 2016 before the learned Consumer Disputes Redressal Forum, Imphal. The appellant in his written statement admitted that the complainant/respondent had purchased the said battery from his shop and also admitted that the complainant/respondent had visited the shop on the dates mentioned in the complaint complaining the decrease of charge of the said battery and also re-charged the battery in their shop and gave it back to the complainant/respondent. However, the complainant/respondent visited time and gain complaining that the charge of the said battery was gradually decreasing and -2- because of that the Kinetic Honda scooter of the complainant/respondent was unable to start. The Appellant had taken the specific plea in the written statement that "a) The petition filed by the Complainant is hit by non-joinder of necessary party i.e. the Exide Industries Ltd.
59E, Chowringhee Road, Kolkata - 700020 who is the manufacturing Company of the Exide battery and as such the same is liable to be dismissed.
b) The terms and conditions of the warranty of the said
battery are as follows :
i) The battery is warranted against all
manufacturing defects and faulty workmanship. However,
consequential liabilities shall not be entertained.
ii) ......................
iii) ......................
On fulfillment of the said conditions, the warranty can be applied to the customers as well as the Complainant.
A true copy of the terms and conditions of warranty is enclosed and marked as Annexure R/1.
c) In a normal working of a battery, the loan (sic) current
and battery voltage under load are given below
BATTERY CAPACITY LOAD
2.5 AH 10 AH
5.0 AH 40 AH
Battery voltage under load Batt condition
9.5 to 12.0 v Full
8.5 to 9.5 v Weak
8.5 & below Dead
When the complaint ( sic complainant) brought
his battery for check up before the Complainant ( sic Appellant) -3- as sated ( sic stated) in his petition, every time the load voltage of the said battery was 11.5 volt which was in very good/full conditions as per the Battery Load tester and as such there was no defeat ( SIC defect) in the said battery.
A true copy of Battery load tester is enclosed and marked as Annexure R/2.
d) The Complainant file the present case by suppressing material facts regarding his refusal to sign on the Dealer Claim form on 1/4/2016 when the OP/Defendant requested the Complainant to fill up the Dealer Claim form for replacement of a new battery, however the Complainant refused to fill up the same for taking the approval from the company and as such the present petition is liable to be dismissed."
8. The term "unfair trade practice" is clearly defined under Section 2 (1) (r) of the Consumer Protection Act, 1986. The relevant portion of section 2 (1) (r) of the Consumer Protection Act is quoted hereunder :
"(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
..............................................
(vii) gives to the public warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence .
(viii) makes to the pubic a representation in a form that purports to be -
1. a warranty or guarantee of a product or of any goods or services; or
2. a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, -4- if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out.
........................................................"
8A. On bare perusal of Section 2 (1) (r) (vii) and (viii) of the Consumer Protection Act, 1986, it is clear that where a defence is raised that warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person rising such defence. Therefore, it would be the burden of the Appellant to prove that the warranty of the said battery was made after proper test and further, after proper test of the said battery on the different dates, the charge of the said battery was within the range of the normal voltage. The said tests were conducted with the instrument to be used for testing the voltage of the battery and also that the instrument was provided by the Exide Industries Ltd. to the Appellant being their authorized dealer.
9. It is not the case of the Appellant that the learned Consumer Disputes Redressal Forum, Imphal did not allow the Appellant to produce the oral evidence and documentary evidence in support of their case. From the record of the Complaint Case No. 10 of 2016, it is clear that the Appellant did not even made a request to the learned Consumer Disputes Redressal Forum, Imphal for allowing to produce any evidence to show that the voltage of the said battery was within the normal range and the battery was tested with the authorized instrument as the appellant is the authorized dealer of the Exide Industries Ltd.
9A. The Apex Court in Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia through K.S. Ahluwalia and Another (1998) 4 SCC 39 and Vinitha Ashok Smt. Vs. Lakshmi Hospital & Ors. (2001) 8 SCC 731) held that normally in the medical negligence case, the Commission seeks opinion of the expert. However, if the expert opinion is not capable of withstanding the logical analysis, the commission would hold the opinion of the expert is not reasonable and responsible. This Commission is to see as to whether the opinion of the expert, if there be any opinion that the voltage/charge of the said battery was within normal range, is capable of withstanding the logical analysis or not?
10. The Apex Court in Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1 held that once the claimant discharges the initial burden by making out a case of negligence, then the onus shifts on to the hospital or doctors to satisfy the court that there was no lack of care or diligence. Para 77 and 79 of the Nizam's case (supra) read as follow :
"77. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence .
79. In the light of the above facts, we have no option but to hold that the attending doctors were seriously remiss in the conduct of the operation and it was on account of this negligence that the paraplegia had set in. We accordingly confirm the findings of the Commission on this score as well."-5-
10A. The Apex Court in Savita Garg (Smt) vs. Director, National Heart Institute (2004) 8 SCC 56 held that once the complainant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctors who treated the patient to show that there was no negligence involved in the treatment . Hospital is bound to produce the record to show that there was no negligence .
11. The Appellant in the given case did not discharge his burden of proof that the appellant issued the warranty card for the said battery after adequate test and checking the battery and on the dates mentioned in the complaint, the opposite party/appellant had tested the voltage of the battery with an authorized instrument which was provided by the Exide Company and found that the voltage of the said battery was within the normal range. Such burden of proof was on the Appellant in the given case, in as much as, the appellant had admitted in their written statement that on the above mentioned date in the complaint, the complainant/respondent purchased the said battery form the shop of the Appellant and also on the dates mentioned in the complaint, the respondent/complainant brought the said battery to the shop of the Appellant complaining that there was gradual decrease of charge and as a result of which his kinetic Honda scooter was unable to start. The Appellant also admitted that the appellant had recharged the battery 2/3 times and handed over the same to the complainant/respondent who came back to the appellant's shop with the said battery complaining that in spite of recharge the charge of the battery was decreased gradually. It is not known to us, as to why, the Appellant had recharged the said battery 2/3 times, if the case of the Appellant is that the charge of the battery was within the normal voltage range after thoroughly testing it by the Appellant by using the authorized instrument provided by the Exide Industries Ltd. is accepted.
11A. This being the situation, we fail to convince ourselves to accept the defence case of the appellant/opposite party that the charge of the battery was within the normal range and there was no defect in the battery. It was also the submission of the learned counsel appearing for the appellant/opposite party that the decreasing of charge of the said battery may be because of the mechanical defect of the Kinetic Honda Scooter of the complainant/respondent. Such submission of the learned counsel of the appellant is not based on the pleading of the Appellant's case in the written statement, in as much as, there was no such pleading in the written statement. It is fairly settled law that any case not pleaded cannot be accepted in the course of hearing of that case.
12. The Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484 held that there can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration and requires judicious approach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness . There are two types of damages viz. Pecuniary Damages (Special damages) and Non-pecuniary Damages (General Damages) (ref.: Raj Kumar vs. Ajay Kumar & Ors. (2011) 1 SCC 343 ). In the present case, what would be the "just" compensation in the light of the decision of the Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484, which is equitable, fair, reasonable and non-arbitrary.
By applying the ratio decidendi laid down by the Hon'ble Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors.'s case (supra), we have given our anxious consideration as to what were the materials before the learned District Forum, Imphal for coming to the amount of -6- compensation more particularly regarding quantum of compensation for "mental agony" i.e. Rs. 8000/- (Rupees eight thousand) and also for awarding the cost of Rs. 5000/- (Rupees five thousand) as the "cost of litigation". We are of the considered view that for awarding the said amount of compensation by the learned District Forum, Imphal there is no material and accordingly, we are of the view, in the given case, that the said amount of compensation was not "just and equitable" compensation. Accordingly, we are bound to interfere the said amount of compensation i.e. Rs. 8000/- for mental agony and Rs. 5000/- for the cost of litigation.
13. For the foregoing reasons, we are not interfering the judgment and order of the learned District Forum, Imphal dated 12.10.2016 passed in Complaint Case No. 10 of 2016 to pay compensation of Rs. 1,300/- as the cost of the battery not on the reasons mentioned in the judgment and order of the learned District Forum, Imphal but on the reasons mentioned in the aforesaid paras of this judgments. By applying the principle of "just, equitability, fairness, reasonableness and non-arbitrariness" in awarding compensation as propounded by the Hon'ble Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors.'s case (supra), Raj Kumar vs. Ajay Kumar & Ors. (2011) 1 SCC 343 ) and V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388 , we have reduced the amount of compensation of Rs. 8000/- towards mental agony to Rs. 2000/- (Rupees two thousand) and amount of compensation of Rs. 5000/- as the cost of litigation to Rs. 3000/- (Rupees three thousand). The corollaries of this judgment are that the opposite party/appellant is directed to pay compensation of Rs. 1,300/- (Rupees one thousand three hundred) as cost of battery, Rs. 2000/- (Rupees two thousand) toward mental agony and Rs. 3000/- (Rupees three thousand) as cost of litigation, totaling Rs. 6,300/- (Rupees six thousand three hundred) only to the complaint/respondent within one month from the date of this Judgment and Orders. After one month 8% interest per annum shall be charged thereon.
14. The present appeal is partly allowed.
15. Statutory deposit, if any, shall be refunded to the appellant on being identified by one counsel known to this Commission.
16. Send down the record.
[HON'BLE MR. JUSTICE T.Nandakumar] PRESIDENT [HON'BLE MR. M.Padmeshwor Singh] JUDICIAL MEMBER [HON'BLE MRS. A.Nibedita Devi] MEMBER -7-