State Consumer Disputes Redressal Commission
Sanjay Gupta Son Of Om Parkash Gupta, vs M/S Garg Electric Store, on 22 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1064 of 2008
Date of institution : 23.9.2008
Date of Decision : 22.11.2012
Sanjay Gupta son of Om Parkash Gupta, resident of C/o S.K. Enterprise, Mandi
No. 1, Shop No. 2570, Abohar, Tehsil Abohar, District Ferozepur.
....Appellant.
Versus
1. M/s Garg Electric Store, 5-Circular Road, Abohar, Tehsil Abohar,
District Ferozepur through its Partner/Proprietor.
2. M/s Su-Kam Power Systems Limited, 196-C, Basement Udyog Vihar,
Phase-VI, Sector 37, Gurgaon (Haryana) through its Managing
Director.
...Respondents.
First Appeal against the order dated 2.7.2008 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. A.K. Khunger, Advocate For respondent No.1 : Sh. H.S. Saggu, Advocate For respondent No.2 : Ex.-parte. PIARE LAL GARG, PRESIDING MEMBER:
This is an appeal filed by the appellant/complainant-Neeraj Atri (hereinafter called 'the appellant') against the order dated 2.7.2008 of the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter called the 'District Forum') by which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant had purchased a Sukam Power Battery on 23.6.2006 from respondent No. 1, who was the dealer of respondent No.2, who was manufacturer of the Battery for an amount of Rs. 5,000/-. Warranty of 18 months was given by respondent No. 1 and it was assured if any defect occurred during the warranty period First Appeal No. 1064 of 2008 2 the battery will be replaced. It was alleged that during the warranty period the defect occurred in the battery and it stopped intermittently. Matter was taken up by the appellant with the respondents and handed over the Battery to respondent No. 1 for its replacement, who had checked the same and after checking. It was told that the battery was giving 12 V current and the same will be replaced. The appellant regularly visited the electric store of respondent No. 1 with the warranty card/service card but the same was not filled up by respondent No. 1 and it was assured by him that the problem was of a temporary nature and will be rectified automatically with the passage of time. The battery stopped working but the respondents refused to replace the same with new one inspite of the fact that the same was within warranty period. Complaint was filed with the prayer that the respondents may be directed to replace the battery with new one or refund the price of the same, pay compensation of Rs. 10,000/- on account of mental tension and harassment and Rs. 3,000/- as litigation expenses.
3. Upon notice, respondent No. 1 filed its written reply by taking preliminary objections that M/s Jasuja Electronics, was a main dealer, who was not impleaded as party and material facts were concealed, as such, the complaint was liable to be dismissed. On merits, the purchase of the battery by the appellant from respondent No. 1 was not denied. It was pleaded that on receipt of the complaint from the appellant, the answering respondent wrote a letter to respondent No. 2 and Mr. Kuldip Singh was deputed by respondent No. 2 to inspect/check-up of the battery, who reported that three cells of the battery were dry run i.e. cell No. 1, 3 and 5 and submitted his report. The appellant did not comply with the instructions issued by respondent No. 2. It was further pleaded that the answering respondent had purchased the battery from M/s Jasuja Electronics, who First Appeal No. 1064 of 2008 3 was the main Dealer of the Company. As the instructions were not complied with by the appellant and the battery was used negligently due to which three cells i.e. 1, 3 and 5 were dry and battery failed, as such, there was no fault on the part of respondent No. 1.
4. Respondent No. 2 was proceeded against ex.-parte vide interim order dated 3.3.2008 as none was present on behalf of respondent No. 2 even after the receipt of registered A.D.
5. Learned District Forum after hearing the learned counsel for the parties and going through the record, dismissed the complaint of the appellant.
6. Hence, the appeal.
7. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The present appeal is filed by the appellant on the grounds that the District Forum has wrongly held that the appellant had violated the terms and conditions of the warranty card, the order of the District Forum is based on conjectures and surmises, as such, the order of the District Forum is liable to be set-aside.
9. There is no dispute between the parties that the battery in dispute was purchased by the appellant from respondent No. 1, which was manufactured by respondent No. 2 on 23.6.2006 vide Ex. C-2 for an amount of Rs. 5,000/- but the cash memo was issued for Rs. 5625/- as Rs. 625/- is added as VAT charges. It was also admitted case between the parties that there was warranty of 18 months from the date of purchase on the battery.
10. The version of the appellant is that the battery stopped working during the warranty period and he had reported the matter to First Appeal No. 1064 of 2008 4 respondent No. 1. The version of respondent No. 1 is that on receipt of complaint, he reported the matter to respondent No. 2 and Mr. Kuldip Singh was appointed to inspect the battery in dispute, who inspected the same on 29.9.2007 and vide his report he reported that "three cells dry run. Cell No. 1,3,5 and the battery was rejected".
11. So the version of respondent No. 1 is that the claim of the appellant for the replacement of the battery was rightly repudiated as the appellant himself violated the instructions/directions of the respondent for using the battery.
12. We have perused the service report Ex. C-4 dated 29.9.2007. The relevant entries of Service Report are reproduced:-
"Complaint √
Dealer Name Garg Electrical
Customer/Dealer Details : Sanjay Gupta, Abohar Engineer's Name : Kuldeep Singh Warranty Yes √ Product Battery Capacity 150 AM Serial No. F0202048 Date of Purchase 23.6.06 Model Lead Acid Problem Reported : N.W. Problem Found : Three Cell Dry Run Cell No. 1, 3, 5 Action Taken/Resultant Status : Battery Rejected Call Status : Close √ Components Replaced x Remarks (Customer/Service Engineer) Pawan Service Engineer's Sign. Kuldeep Singh"
13. Nowhere in the Service Report, it was mentioned where the Engineer of the Company had checked the Battery and whether the appellant/complainant or any of his family member was present at the time of inspection. The Service Report is signed by respondent No. 1 as well as Service Engineer of respondent No. 2 but no affidavit of the Service Engineer was tendered into evidence to prove, what was the reason for non-working of the battery and what was the fault on the part of the First Appeal No. 1064 of 2008 5 appellant. Only the Service Engineer is the person, who could explain the reason for the non-working/defect in the battery and on which basis he concluded the same and rejected the claim of the appellant.
14. We have perused the reply as well as affidavit of respondent No. 1. Even he had also not disclosed whether the battery was checked in his presence and he signed the same and what was the reason, the same was not checked in the presence of the appellant or his representative.
15. In view of the above discussion, it is proved beyond any doubt that the defects had occurred in the battery during the warranty period and the respondents have failed to prove that defects had occurred in the battery due to carelessness or mis-use of the same by the appellant. The respondent did not produce any evidence to rebut the version of the appellant.
16. The order of the District Forum is against the evidence and based on conjectures and surmises and the observation of the District Forum is wrong that the appellant had violated the terms and conditions of the warranty card.
17. Accordingly, the appeal is accepted with costs of Rs. 2,000/- and the order under appeal is set-aside. Consequently, the complaint filed by the complainant is accepted.
18. The respondents are directed to replace the battery with new one or return the price of the battery, which was charged from the appellant against the old battery, if the same is lying with the appellant within one month from the receipt of copy of the order. Both the respondents will be liable to comply with the order jointly and severally.
19. The arguments in this appeal were heard on 7.11.2012 and the order was reserved. Now the order be communicated to the parties. First Appeal No. 1064 of 2008 6
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
November 22, 2012. (Jasbir Singh Gill)
as Member