State Consumer Disputes Redressal Commission
Mr. Subhendu Halder @ Sunu Halder vs M/S. Tapas Tradding Corporation & ... on 8 January, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11-A, MIRZA GHALIB STREET KOLKATA-700 087. S.C. CASE NO. : FA/809/2012 (Arisen out of judgement dt. 28.9.2012 of DCDRF, North 24 Parganas in C.C.Case No. 259/2011) DATE OF FILING : 30.10.2012 DATE OF FINAL ORDER: 08.01.2014 APPELLANTS Mr. Subhendu Halder @ Sunu Halder S/o Late Hridaynath Halder No. 4, Siraj Mondal Road (College More) Post-Kanchrapara, P.S. Bizpur Dist. North 24 Parganas. RESPONDENTS 1. M/s. Tapas Tradding Corporation Represented by Sri Tapas Dutta 716 K.G.R.Path, Milan Nagar P.O. Kancharapara P.S. Bizpur Dist. North 24 Parganas. 2. M/s. AURO Electro Power Pvt. Ltd. P-31, C.I.T.Road Moulali P.O. Entally P.S. Entally Kolkata-700 009. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Pinaki Datta, Ld. Advocate FOR THE RESPONDENT : None : O R D E R :
MRS. MRIDULA ROY, LD. MEMBER The instant Appeal is directed against the judgment and order dt. 28.9.2012 passed by the Ld. DCDRF, North 24 Parganas in C.C.Case No. 259 of 2011 dismissing the petition of complaint on contest without cost.
Being aggrieved by and dissatisfied with the aforesaid order the complainant has preferred the instant Appeal on the grounds stating, inter alia, that a petition filed by him on 27.7.2012 praying for laboratory test of a battery, i.e. the goods in question, has not been disposed of by the Ld. District Forum, but the final order has already been passed.
The case of the complainant, in brief, is that he purchased a battery from the OP No. 1 on 18.6.2010, manufactured by the OP No. 2 at a consideration of `10,500/-.
The said battery was under warranty coverage of 24 months from the date of purchase. The complainant alleged that the said battery had not been working smoothly since the date of purchase. However, on 22.6.2011 the said battery exploded. The complainant as soon as possible intimated the said incident to the OP No. 1, but the OP No. 1 remained idle. Subsequently, the complainant on several occasions requested the OP No. 1 to take up the matter, but all were in vain. Being disgusted with the indifferent attitude of the OP No. 1 the complainant served a lawyers notice dated 19.8.2011 upon the OP No. 1 demanding replacement of the said battery by a new one. The Ops, as the complainant alleged, paid no heed to that.
Having no other alternative the complainant approached the Ld. District Forum for redressal of the dispute praying for direction upon the Ops to replace the defective battery, to pay ` 50,000/- towards compensation and to pay litigation cost.
The Ops appeared and contested the case before the Ld. District Forum by filing separate written versions. In its written version the OP No. 1 denied and disputed all the material allegations stating, inter alia, that since installation of the said battery the complainant had never lodged any complaint in respect of the said battery before 22.6.2011. The OP No. 1 also stated that the said battery was scheduled to be fitted to the inverter by the technical person of the OP No. 1, but the complainant had fitted the same with his own arrangement and not by the technical person of the OP No. 1.
The OP No. 1 contended further that as soon as it received the information of the bursting of the battery, it sent its technician Mr. Amit Bera from the Kolkata Branch, who did not find any manufacturing defect with the said battery and opined verbally that the said battery had burst due to overcharge. According to the OP No. 1, there is no deficiency in service on its part and, therefore, it prayed for dismissal of the petition of complaint with exemplary cost.
In its written version the OP No. 2 also denied all allegations as made out in the petition of complaint against it contending, inter alia, that the complainant never informed about any dispute regarding the said battery before 22.6.2011 to either of the Ops and, therefore, the question of rendering service did not arise at all. The OP No. 2 contended that the complainant merely purchased the battery from the OP No. 1 who is the authorized agent of the OP No. 2. The OP No. 2 further contended that the complainant did not arrange for fitting of the said battery to the inverter by the technician of the OP No. 1 as per terms of the warranty, but he did it by his own arrangement instead.
According to the OP No. 2, the complainant cannot be allowed to take advantage of his own wrong. However, on 22.6.2011 after receiving the complaint from the complainant the OP No. 1 sent its technician who after checking the said battery came to the conclusion that the battery had burst due to overcharge and not for any manufacturing defect and, therefore, as per terms of the warranty the Ops were not liable to provide any service. Accordingly, the OP No. 2 prayed for dismissal of the petition of complaint with exemplary cost.
In course of argument the Ld. Advocate for the Appellant has submitted that the Appellant purchased a battery at a consideration of ` 10,500/- from the OP No. 1 under warranty coverage of 24 months. However, on 22.6.2011 the battery exploded and on that date the Appellant intimated the said incident to the OP No. 1, but the OP No. 1 paid no heed to that. Thereafter the complainant made several requests to the OP No. 1 for replacement of the said battery by a new one, but the Respondents/Ops intimated him that they were not liable to provide any service as per Clause-6 of the warranty conditions. Ld. Advocate for the Appellant further stated that the complainant/Appellant had filed a petition praying for laboratory test of the said battery, but the said petition has not been disposed of by the Ld. District Forum. Ld. Advocate for the Appellant accordingly has prayed for setting aside of the impugned order.
None was present on behalf of the Respondents at the time of hearing of the Appeal.
On perusal of the record it appears that in Order No. 14 dated 27.7.2012 the Ld. District Forum recorded OP Nos. 1 & 2 have filed their written evidence in chief along with an application for laboratory test of the battery. But it appears that the Ld. District Forum neither allowed the petition nor did reject the same and fixed 16.8.2012 for hearing argument.
Further, it appears from the record that the moot point to be determined by the Ld. District Forum is that whether the battery was defective since its purchase by the complainant. In this respect the finding of the Ld. District Forum is that the complainant did not get the said battery fitted with the inverter by the dealer and also did not requisitioned the service of the said dealer. The Ld. District Forum also observes that the condition of the battery was depending upon the voltage requirement, but the same was not commissioned and there is no whisper in the petition of complaint in respect of the capacity of the battery and the total consumption.
But, in our view, all those findings of the Ld. District Forum could not determine necessarily that whether the battery was defective since purchase or not.
Therefore, the pivotal point i.e. whether there is any inherent defect in the goods purchased by the complainant or not, has been remaining unanswered. Further, the Ld. District Forum disposed of the complaint case finally without disposing of the interlocutory petition filed by the Ops, which is legally incorrect.
Under the state of affairs, we are of the opinion that the case should be sent back on remand for proper adjudication disposing of the petition dated 27.7.2012 filed by the Ops praying for laboratory test of the battery in question. In the result, the Appeal succeeds.
Hence, it is ORDERED that the Appeal stands allowed in part ex parte without any order as to costs. The case is sent back on remand to the Ld. District Forum with a direction to dispose of the petition dated 27.7.2012 filed by the Ops praying for laboratory test of the battery in question after hearing both sides and also dispose of the petition of complaint according to law as expeditiously as possible.
MEMBER PRESIDENT