AGRO CHEMICALS vs Radhey Mohan

THIS appeal has been filed by M/s. Agro Chemicals (Opposite Party No. 1) against the order of the District Forum, Bharatpur dated 14.5.93 directing to re fit the compressor in the refrigerator of the complainant which had been taken out for repairs in a correct condition or in the alternative to fit a new compressor in the refrigerator. The District Forum further awarded to the complainant compensation of Rs. 1,000/ for the inconvenience caused to the complainant by not re fitting of the compressor after due repairs.

FACTS giving rise to this appeal are that on 13.11.91 complainant Radhey Mohan had filed a complaint in District Forum, Bharatpur alleging that on 14.3.86 he had purchased a Godrej refrigerator of 165 Lt. capacity from M/s. Agro Chemicals, Bharatpur who was the dealer of Godrej Co. for an amount of Rs. 4,550/ . It was alleged that there was a guarantee for a period of 5 years. Near about the month of March, 1990 the compressor of the refrigerator completely ceased to function. A complaint was made in this regard to Opposite Party No. 1 who sent its mechanic. The mechanic removed the compressor from the refrigerator and the Opposite Party undertook to replace the compressor after its repairs or by a new compressor stating that the compressor has been sent to Godrej Company. However, for about 2 months the compressor was not re placed. Then an old repaired compressor was affixed in the refrigerator and the Opposite Party No. 1 assured that either new compressor would be fitted or the repaired compressor after its receipt from the Godrej Co. would be affixed. The complainant was required to deposit an amount of Rs. 400/, which he deposited but no receipt of the same was given. The complainant also paid Rs. 135 / for a relay on 6.6.90. However, the Opposite Party No. 1 did not re fit the original compressor bearing No. 187883 after getting it repaired from Godrej Co. despite repeated demands. The old compressor, which had been fitted ceased to function in March, 1991. The Opposite Party No. 1 assured that the same would be replaced early but with no avail. The complainant, therefore, sent a notice on 10.7.91 1with no effect. With these averments, the complainant filed the complaint stating that the Opposite Parties have not fulfilled their obligation of guarantee for a period of 5 years. The complainant had faced inconvenience and loss on account of non-fitting of the compressor after repairs. He, therefore, claimed a compensation of Rs. 5,000/ and also a direction for re fitting the original compressor after due repairs or providing a new compressor to the refrigerator. The Opposite Party No. 1 filed a version before the District Forum wherein it was admitted that Opposite Party No. 1 had sold to the complainant Godrej refrigerator for Rs. 4,550/ on 14.3.86. According to Opposite Party No. 1, there is service guarantee of one year and the guarantee for remaining four years is at the option of the purchaser. The Opposite Party No. 1 further stated that on the request of the complainant the original compressor had been changed and there was no question of getting the original compressor repaired from Godrej Co. It was also stated that according to the specified conditions if the sealed system has any defect, attempt is made to remove the defect by repairs and if that cannot be done, the sealed system is replaced. The original compressor of the complainant could not be repaired and, therefore, the same was replaced by another compressor. That was why during the guarantee period, the complainant never made any complaint about the replaced compressor. The Opposite Party No. 1 therefore, prayed that the complaint may be dismissed.

The District Forum, Bharatpur has stated in its order that admittedly the original compressor had been changed by another compressor on 6.6.90. According to the District Forum, if it was a fact that the original compressor was changed by Opposite Party No. 1 by a new compressor, the Opposite Party No. 1 must have with it necessary documentary evidence to show that it had obtained from Godrej Co. a new compressor for the complainant for replacing the original compressor which had ceased to function. The Opposite Party No. 1 was only a dealer of Godrej Co. and, therefore, it was not possible for him to fit a compressor in place of the original compressor himself from his own stock. The District Forum also stated that there must also be correspondence between Opposite Party No. 1 and Godrej Co. in the matter of replacement of compressor in the refrigerator of the complain ant. No such correspondence, which must be in possession of Opposite Party No. 1, has been produced. Thus the Forum held that material evidence has been suppressed by Opposite Party No. 1. The District Forum, therefore, stated that there was no reason to disbelieve the case of the complainant which was supported by the complainant''s affidavit. When the compressor which had been fitted by Opposite Party No. 1 in place of the original compressor ceased to function, the complainant had again and again intimated to Opposite Party No. 1 regarding this fact. The District Forum held that Opposite Party No. 1 kept with it the original compressor, which had been taken out from the refrigerator of the complainant and temporarily fitted the old compressor in the refrigerator. The original compressor was not refitted after repairs and new compressor was also not fitted. On the basis of these findings, the District Forum has passed the above order. Aggrieved by the order of the District Forum, the Opposite Party No. 1 has filed this appeal. We have heard the learned Counsel appearing for the appellant and the complainant who had appeared in person.

IT would appear from the above facts that the real controversy between the parties is as to whether after removing the original compressor which had ceased to function, the Opposite Party No. 1 had fitted an old compressor already with him in the refrigerator for a temporary period under an assurance given to the complainant that when the original compressor is received after repairs from Godrej Co., the same would be refitted or else a new compressor shall be fitted. The complainant produced the warranty cards. One of the card provides warranty for a period of 12 months from the date of delivery of the refrigerator to the effect that the Godrej Co. will, free of charge re paint, repair or replace any of the defective part or parts of the refrigerator excluding light bulbs and glassware. The other document is service contract for Godrej refrigerator sealed system. By this document Godrej Co. contracted with the purchaser of the refrigerator that for a period of four years commencing from the expiry of one year Godrej refrigerator warranty period, the Company will, in consideration of the service charges set out above maintain and repair the refrigerator''s hermetically sealed system or such part of component thereof or replace the same with another in working condition, as and when required, if the sealed system inspite of normal and proper use, is proved to the company''s satisfaction, in its sole discretion, to be defective or inoperative due to faulty materials or workmanship only. The term "sealed system shall mean hermetically sealed refrigeration system consisting of compressor dome, condensing unit and evaporator. Admittedly the Opposite Party was a dealer of Refrigerator Company. The complainant had made a complaint to Opposite Party No. 1 sometime in March, 1990 that the original compressor had totally ceased to function. The Opposite Party No. 1 through its mechanic got removed the original compressor and sometime thereafter a compressor was fitted in the refrigerator. The Opposite Party No. 1 being a dealer must have necessarily referred the matter to Godrej Co. to obtain reimbursement from that Company in connection with replacement of the sealed system or compressor in the refrigerator of the complain ant. The District Forum, Bharatpur was right in observing that there must be relevant documents in possession of Opposite Party No. 1 to support its version that a new compressor was fitted by it on 6.6.90. That document was not produced by the Opposite Party No. 1 before the District Forum. Thus the Opposite Party No. 1 had suppressed the best evidence, which must be in its possession. An adverse inference could, therefore, legitimately be drawn as against Opposite Party No. 1 to the effect that a new compressor had not been fitted by it on 6.6.90 and that an old compressor had been fitted. The complainant has produced copies of three letters, which had been sent by him to Opposite Party No. 1 stating that the original compressor had been sent to Godrej Co. for repairs and that the Opposite Party No. 1 had temporarily installed a repaired sealed system, which had ceased to work. A notice was also sent by registered post by the complainant to Opposite Party No. 1 on 10.7.91. The Opposite Party No. 1 did not send any reply to the registered notice of the complainant denying complainant''s allegations. If the case set up by Opposite Party No. 1 was correct, he was expected to send reply to the complainant when it had received a registered notice from the complainant. It may be mentioned here that the complainant in his memorandum of appeal has stated that finding of the District Forum, Bharatpur was unjustified because the complainant had himself but his signatures on 6.6.90 on service report and it was mentioned therein that the compressor unit was replaced and the complain ant was satisfied with that. Alongwith the appeal for the first time the Opposite Party No. 1 appellant has filed a photo copy of the said service report as Annexure 1. This goes to show that the service report which has now been produced by Opposite Party No. 1 alongwith the memorandum of appeal was in possession of Opposite Party No. 1. Despite that this was not produced by Opposite Party No. 1 before the District Forum, Bharatpur. Firstly, no amount of evidence can be looked into at appellate stage which was not produced before the District Forum, Bharatpur. Secondly, even if we see this service report Annexure 1 produced by the Opposite Party No. 1 alongwith the memorandum of appeal, it would appear that the model num ber of the original compressor was P 6/187883. This goes to show that the cabinet model number of the original sealed unit was P6. What had been replaced by Opposite Party No. 1 on 6.6.90 was a compressor of model P5 of 1.1. Amp. The original compressor bearing serial No. 187883 was of 200 volts and 1.3 amp. Clearly model No. "P5 should be old model than model No. P6. There is also difference in the volts and ampere. The compressor which was replaced on 6.6.90 was of lesser volts and ampere than the original compressor in the refrigerator. Thus Annexure 1 also indicates that the Opposite Party No. 1 on 6.6.90 had not made replacement of the original compressor by a new compressor. The replacement was made by an old compressor. The complainant''s case, therefore, does not stand rebutted by Annexure 1 produced along with the memorandum of appeal.

WE may also refer to the service contract for Godrej refrigerator sealed system. This document not only mentions the sealed unit number as 187883 but it also mentions the model numbers as P 3, P 4 and P 6. There is no mention of model No: P 5 in the printed contract for Godrej refrigerator sealed system. This also goes to show that what had been replaced on 6.6.90 was an old repaired compressor which was already lying with Opposite Party No. 1. The Opposite Party No. 1 was bound to either re fit the original compressor of model No. P6, S. No: 187883 after its due repair or he should make replacement by a new compressor of Godrej Co. This had not been done by Opposite Party No. 1. The complainant must have suffered inconvenience due to non-fulfillment of the obligation undertaken under the service contract. The original compressor was taken out from the refrigerator during the currency of the service contract and the Opposite Party No. 1 cannot get out of the obligation of the Godrej Co. simply on the ground that the contract period of four years had expired. The original sealed unit had been taken in possession by Opposite Party No. 1 during the contract period and its obligation could only stood discharged if it would have either got the original compressor repaired and re fitted or new compressor of the Company fitted. The District Forum, therefore, rightly awarded a compensation of Rs. 1000/ to the complainant and it rightly directed the Opposite Parties to either re fit the original compressor after due repairs or to fit a new compressor of the Godrej Co. in the refrigerator of the complainant. This appeal has, therefore, no force in it and it is hereby dismissed. Certified copy of the order will be sent to the parties by registered post at the expense of the State Commission. Appeal dismissed.