State Consumer Disputes Redressal Commission
Superb Auto Batteries, vs Trimurti Pavan Pratisthan, on 21 November, 2014
1 F.A.No.:166/2010
Date of filing :17.02.2010
Date of order :21.11.2014
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :166 OF 2010
IN COMPLAINT CASE NO.: 163 OF 2009
DISTRICT CONSUMER FORUM :AHMEDNAGAR.
Superb Auto Batteries,
Through & under proprietorship of
Mohmmed Hussain Mhammu Shaikh,
Manager/Proprietor,Superb Auto Batteries,
Opp. to V.I.P. Rest House,
Sangamner Road, Shrirampur,
Tq.Shrirampur, Dist.Ahmednagar. ...APPELLANT
VERSUS
Trimurti Pavan Pratisthan,
Through the alleged Secretary,
Mr.Manish Annasaheb Ghadge Patil,
Newasa Fata, Trimurti, Trust Area,
Tq.Newasa, Dist.Ahmednagar. ...RESPONDENT.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Smt.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.N.R.Bhavar for appellant, Adv.Shri.Rahul Joshi for respondent.
O R A L JUDGMENT (Delivered on 11th November 2014) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 13.1.2010 passed by District Consumer Forum Ahmednagar partly allowing consumer complaint No.163/2009 directing appellant/opponent to replace 24 inverter batteries within 45 days from the date of receipt of impugned order and in the alternatively to pay amount of Rs.2,05,200/- towards cost of batteries with interest @18% p.a. if the order is not complied within specified period. Appellant/opponent is further directed to pay to the complainant 2 F.A.No.:166/2010 compensation of Rs.10,000/- towards deficiency in service and Rs.3000/- more towards mental agony and Rs.2000/- towards cost of the proceedings.
(For the sake of brevity appellant is herein after referred as opponent and respondent as complainant)
2. Brief facts giving rise to this appeal are that:-
Complainant Trimurthi Pavan Pratishthan educational trust is running D.Ed & B.Ed colleges and also school at Newasa Phata, Telkudgaon, Shevgaon, Dhorjalgaon and other places. In the month of Feb.2008, complainant had purchased 7 inverters and 28 batteries from opponent for consideration of Rs.3,89,000/-. Warranty period for the inverters was one year and 18 months for batteries. It is alleged that after some days inverters and batteries were not working properly. Therefore complainant intimated to the opponent. On receiving information opponent through his serviceman cured defects. Again inverters and batteries were not working properly and within 7 months from the date of purchase the inverters as well as batteries were totally stopped working. Therefore by notice dated 24.12.2008 complainant claimed replacement of inverters as well as batteries. However, by reply dated 2.1.2009 opponent denied the notice. Therefore alleging deficiency in service on the part of opponent, complainant filed consumer complaint claiming replacement of inverters and batteries and in the alternatively its price Rs.3,89,000/- with interest @ 18% p.a. It has also claimed compensation of Rs.50,000/-.
3. Opponent by its written version resisted complaint and denied that inverters as well as batteries were defective and they are not working etc. It is contended that complainant had purchased 7 inverters and 28 batteries for consideration of Rs.4,05,600/-. But it 3 F.A.No.:166/2010 has paid amount of Rs.3,40,000/- only and failed to pay balance amount. It has denied all other adverse averments made by complainant and submitted to dismiss the complaint.
4. On hearing both side and considering evidence on record District Consumer Forum held that inverters as well as batteries were defective. However, since the complaint pertained to the inverters is not filed within warranty period, claim pertaining to the batteries only is partly allowed holding that appellant has committed deficiency in service.
5. Feeling aggrieved by that judgment and order opponent came to this Commission in appeal.
6. We heard learned counsel for both side at length and perused the written notes of arguments submitted by them. We have also perused the impugned judgment and order, copies of complaint, written version , notice, reply and other documents.
7. Almost all the facts except allegations about defective batteries are not disputed.
8. Mr.Bhavar learned counsel for opponent/appellant raised three points. viz. (i)consumer complaint is not maintainable alleging that complainant had purchased inverters and batteries for his commercial activity. (ii) There is no expert evidence to show that inverters as well as batteries were defective and (iii) Inverters as well as batteries were not handled properly and further there was frequently disturbance in electric supply etc.
9. It is vehemently argued by Shri.Bhavar learned counsel for appellant/opponent that since undisputedly complainant is running schools and colleges by receiving fees from the students and batteries 4 F.A.No.:166/2010 and inverters were purchased for educational purpose, it was commercial transaction. Therefore as per explanation U/s 2(1)(d) of Consumer Protection Act complaint is not maintainable etc. He has also tried to support his contention by relying on the decision of Hon'ble National Commission in case of "Bilagi Sugar Mill Ltd. -Vs- Kessels Engineering Works (P) Ltd., II(2010) CPJ 242 (NC). But with due respect the decision of Hon'ble National Commission cannot be applicable to the present case for the reason that Turbine which was purchased by Bilagi Sugar Mill Ltd. was for running his business for earning profit. But in the present case undisputedly though complainant is running school and colleges by accepting tuition fees from students that it cannot be inferred that it is with any object to earn profit so as to consider the transaction as commercial transaction which exclusded from the purview of Section 2(1)(d)(ii) of Consumer Protection Act.
10. As far as second point raised by Mr.Bhavar learned counsel for the opponent is concerned, the record clearly reflects that complainant had produced expert evidence i.e. report of Principal, I.T.I., Ahmednagar. The report reflects that disputed inverters and batteries were referred to said Principal for inspection and on inspection it is reported that the same were defective. However, it is contended by Shri.Bhavar learned counsel for the opponent that college Principal cannot be considered as expert though he is expert in teaching etc. But we find no merit in this submission because, when Principal of I.T.I. is expert in teaching the students for doing mechanical work and creating mechanics, it cannot be disputed that Principal is expert in his field. Therefore his report cannot be disputed.
11. As regard 3rd point raised by Shri.Bhavar learned counsel for opponent is concerned, except the contention of opponent that inverters and batteries were not handled properly there is no evidence 5 F.A.No.:166/2010 to substantiate it. It is also not the contention of opponent that when the inverters and batteries were repaired by its serviceman, serviceman noticed that batteries and inverters were not handled properly etc. Therefore bare contention of opponent cannot be sustained.
12. As against the arguments advanced by learned counsel for opponent, Mr.Rahul Joshi learned counsel for the complainant denied the opponents averments and supported the impugned judgment and order and submitted that District Consumer Forum has rightly held on the basis of expert evidence that batteries were defective etc. In view of the undisputed facts, we have no hesitation to accept the arguments advanced by learned counsel for the complainant.
13. For the foregoing reasons it is obvious that District Consumer Forum has rightly partly allowed the complainant's claim on the basis of expert evidence. We find no error or infirmity in the impugned judgment and order. Hence no interference is warranted.
14. In the result, appellant fails and appeal deserves to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- Uma S.Bora, S.M.Shembole, Member Presiding Judicial Member Mane