ALLWYN (A UNIT OF VOLTAS LTD.) vs V.P.AGARWAL

THIS is a revision petition filed by Allwyn, a unit of Voltas Limited through Mr. A.K. Agarwal s/o Mr. Sita Ram Agarwal against Dr. V.P. Agarwal and others of Aligarh. Shortly stated, facts of the case are as follows :

DR. V.P. Agarwal filed a complaint before District Consumer Forum, Aligarh, that he purchased a double door Allwyn Fridge, Model 36-D, SR. No. 103331 in which a defect was found by DR. V.P. Agarwal and the revisionist failed to remove the defect. The revisionist''s case before the learned Forum was that they were prepared to remove the defect but the respondent did not allow to touch the fridge and the respondent only wants his money back.

The learned District Forum observed that the opposite party is allowed to remove the minor defects but if the defects are of serious nature then the opposite party shall replace the fridge. The learned Forum in its order dated 9.4.1993 in the above Complaint Case No. 956 of 1992 directed that opposite party shall remove the defects of the fridge within a month and after the defects are removed, the said fridge must run alright for atleast six months failing which the fridge shall be replaced and the rest claim for compensation was rejected.

DURING the execution proceedings, the District Forum concerned passed order on 10.5.1999 that the fridge in question was in possession of one of the opposite parties Mr. A.K. Agarwal, Sales Officer of Allwyn and the order of the Forum has not been complied with by the said party Mr. A.K. Agarwal. The learned Forum in the said order directed issuance of non-beilable warrant of arrest against Mr. A.K. Agarwal. 4. It is this order which has been questioned in this revision petition. In the revision petition, it has been stated that in compliance of the order of the District Forum date 8.4.1993 the fridge was inspected on 31.5.1993. The fridge was set right by replacing the compressor to the entire satisfaction of the complainant and revisionist submitted reply to this effect before the District Forum concerned by Registered Post alongwith Service Card which has been filed as Annexure B of the revision petition. 7. The decree holder complainant obtained an order of arrest after suppressing the true facts whereas the District Forum vide its orders dated 5.1.1994 and 17.3.1994 directed the complainant to take delivery of the fridge. Inspite of the fact that on 11.9.1996 the fridge was produced before the Forum for delivery in perfect running condition. The complainant did not take delivery of the fridge. The revisionist repeatedly and constantly requested the complainant to take delivery of the fridge even after the fridge was produced before the District Forum for delivery. Therefore, the complainant himself violated and disobeyed the order of the Forum. The fridge was in sound working condition, polished, which should have been accepted and taken by the complainant. 8. On the other hand, Dr. B.P. Agarwal filed an affidavit stating that the opposite party did not carry out the repairs with the result that proceedings under Section 27 of the Consumer Protection Act were started and the learned District Forum passed an order on 18.5.1999 issuing non-bailable warrant against Mr. A.K. Agarwal, the revisionist. It has further been stated that in exercising the revisional power, the Revisional Authority can exercise the appellate powers. When we deeply go into the facts and merits of the case we find that authorised representative of the opposite party had given an indication before the District Forum on 27.7.1993 to the effect that the defective parts of the fridge were replaced and if after this it is still found that the fridge is not running well, then the same will be replaced. The fridge in question has not been handed over to the complainant after repairs. The warrant of arrest which has been challenged is against non-compliance of the order of the District Forum passed on 8.4.1993. It was also stated in the affidavit by the opposite party that the fridge was not repaired to complete working condition and that is why the complainant refused to take delivery of the fridge. 9. We have gone through the entire evidence on record and we have also heard arguments of the learned Counsels of the two parties. 10. On behalf of the revisionist it was stated that the order dated 10.5.1999 is signed by the President alone, Annexure ''I'' filed by Dr. V.P. Agarwal, the opposite party is a clear proof of the fact that the order is signed by the President and Member both. Therefore, on this account there is no illegality. What we have to see is whether the revisionist has been complying with orders passed by District Consumer Forum. For this we have to go through the order sheets of different dates of the concerned District Forum. In the complaint case, the District Forum had ordered for removal of the defects of the fridge within a month. It has also ordered that if the defects are removed then the fridge must run if alright for atleast six months otherwise the opposite parties shall replace the fridge. Annexure ''D'' which is part of the revision petition indicates that the opposite party has set right the complainant''s fridge by replacing the compressor on 31.5.1993 to the entire satisfaction of the complainant. Annexure D-1 is the report of the Mechanic and indicates that the compressor was replaced. Signature of the customer are also made therein. 11. Order sheet dated 17.3.1994 indicates that there was no response from the complainant when the fridge was ready for delivery. 12. Order sheet dated 30.9.1996 indicates that District Forum had ordered for effecting delivery of the fridge before 21.10.1996. This order sheet also mentioned that opposite parties were ready to give delivery of the fridge, defects of which were duly removed. 13. The order sheet dated 18.1.1995 indicates that the District Forum ordered the fridge to be brought before it on 24.2.1995 free of defects. This was after the complainant has said that the defects of the fridge have not been removed. Even before this date, opposite party''s case was that the defects in the fridge have been removed much earlier and the concerned Forum had ordered on 17.3.1994 that delivery of the fridge be effected to the complainant on 17.4.1994. Thereafter the District Forum ordered that delivery of the fridge be given to the complainant and these orders were passed on 30.9.1996. On 16.7.1999 the matter was taken up again by the District Forum and the order sheet of that date indicates that the Forum had ordered the opposite party to take the fridge to their workshop where the complainant was required to be present and the fridge should be in perfect running condition for four hours so that the complainant can satisfy himself of the removal of the defects. 14. Under these circumstances, there is no reason to disbelieve the statement of the revisionist that the fridge was ready to be delivered on 29.8.1996. The fridge was again produced before the Forum on 11.9.1996 and the learned Forum ordered the test of the fridge in the workshop as there was no provision/arrangement of testing the fridge within the premises of the District Forum. 15. The case of the revisionist is that the fridge is in polished and sound working condition, delivery of which can be effected from Video Vision, Railway Road, Near Apsara Talkies, Aligarh. Attempts were made by the revisionist to contact the complainant through his representative even on the address of the complainant itself but the complainant was not interested to take the fridge, defects of which have been duly removed. This would be evident from the document at Annexure ''F'' of the revision petition. Affidavit of Mr. Rakesh Chand Verma, Advocate, filed before the District Forum and annexed with the revision petition also goes to show that the complainant had examined duly repaired fridge in the workshop but later on did not take delivery of the fridge despite the fact that the machine was working very well in perfect condition. 16. All these events to show that the complainant rather than the revisionist is not interested in taking delivery of the fridge as per the orders of the District Consumer Forum, Aligarh. Under the circumstances, issuance of non-bailable warrant against the revisionist was not called for. The order dated 10.5.1999 is, therefore, liable to be set aside. 17. However, it will be open for the District Consumer Forum, Aligarh to call both the parties again and ensure delivery of the fridge to the complainant and get implemented the orders passed by the learned Forum in the complaint case. This does not bar the learned District Consumer Forum, Aligarh to take such coercive action as it considers necessary in the interest of the justice against the opposite parties if it comes to the conclusion that the opposite parties/revisionist are not taking active interest in effecting delivery of the fridge. 18. The revision petition is, therefore, liable to be allowed. ORDER The revision petition is allowed and the order dated 10.5.1999 of the District Consumer Forum, Aligarh is set aside. However, the District Consumer Forum, Aligarh will be at liberty to ensure implementation of its order dated 8.4.1998 in Complaint Case No. 956 of 1992 and take much further steps in execution proceedings as are necessary as per the law to ensure that the orders are complied with. Revision Petition allowed.