ANIL SEHGAL vs Harmohinder Singh

THIS order would dispose of two appeals No. A321/94 and A-323/94 arising out of identical facts and circumstances. It will be sufficient to state the facts in the appeal first above mentioned. The complainant purchased 1.5 tonne air-conditioner from the opposite party for Rs. 15,000/- vide receipt dated 16.2.90. Shortly thereafter the air conditioner started giving trouble. The opposite party was informed and nothing having been done, the complainant got served notice dated 1.9.90 under registered cover on the opposite party. THIS was followed by a complaint instituted in the District Forum in November, 90, The complainant claimed refund of the price of the air-conditioner and damages amounting to Rs. 50,000/-.

THE plea of the opposite party was that the air-conditioner, supplied to the complainant, had original sealed unit of Shri Ram Compressor and that the complainant had accepted the same after necessary checking at the time of installation. It was further stated that the complainant had used the air-conditioner for the summer season of the year 1990 and 1991 and the legal notice served by the complainant was false, fabricated and ante-dated. THE opposite party also denied his liability to replace the compressor on the ground that he was not the manufacturer and that the complainant had failed to implead the manufacturer in the present complaint. It was also stated by the opposite party that the cost of the compressor at the relevant time was only Rs. 8,000/- and there was no case for the refund of the whole amount of Rs. 15,000/-. During the pendency of the complaint, on 23.3.93, the opposite party was directed to send his mechanic for checking up the air-conditioner and rectifying the defects, if any. Accordingly, the opposite party visited the complainant''s house on 26.3.92 and submitted a report in writing dated 7.4.92 to the effect that the air-conditioner was inspected and found to be in working order.

On a consideration of the matter, District Forum dismissed the complaint. The two reports, placed on record by the complainant, were rejected on the ground that there was discrepancy in the serial number of the compressors used in the two air conditioners in the two reports. It was also held that the dealer, which was not the manufacturer, could not be held responsible for manufactuing defects. Aggrieved by the order, the complainants have preferred these appeals.

WE have heard Mr. B.R. Saini, Advocate for the appellants and Mr. Bharat Chawla, Advocate for the respondent. The case of the appellants is that even though the opposite party claimed that original sealed Sri Ram Compressor Units had been used in the air-conditioners, in fact only repaired compressors had been used in both the airconditioners. The complainant supported this plea by producing two reports, one from Mr. Vinod Sawhney of M/s. Classic Enterprises dated 19.12.91. The report is addressed to Mr. Sehgal, appellant and in the subjet the serial number of the compressors in the two air conditioners are given. It has been stated that while servicing the units it was observed that the compressors used were repaired units and not original ISI marked. The second is a report by Mr. N.K. Sharma, of Karna Industries Ltd. dated 16.8.92 addressed to the appellant. With reference to the inspection of the two air-conditioners it was stated that the same had compressors which had earlier been repaired. The serial number of the compressors were given. The serial numbers given in the two reports may be juxtaposed in order to bring out the point. S. No. noted in the report of Classic Enterprises dated 19.12.91. S. No. noted in the report of Karna Industries Ltd. dated 16.8.92. ZA 76 A 6005 KP/02/89 ZA ZB 76 A 6005/KP/02/89 ZA 70 MYO 25 KP/02/88 ZA 70 MY 7025

A comparison of the two shows striking similarity. Minor difference stand explained by the fact that in course of time serial number which are embossed get obliterated due to deposit of grease, dirt etc. and the mechanics do not appear to have used great care in cleaning the number plate and correctly noting the number in bill. Both the reports were compared at the instance of the appellant and after inspection of the same very air-conditioners there is no question of any discrepancy in the two reports. Against the above, no evidence was produced by the opposite party to show that he had, in fact, supplied original sealed units in the two air-conditioners assembled and supplied by him. The opposite party could easily produce copy of the cash-memo by which he had purchased the sealed units from the manufacturer or the wholesale dealer. Such documents must be in possession of the opposite party as it is well-known that original compressors are sold alongwith warranty, and the warranty comes into force at the time of sale to the consumer and the dealer is required to have the warranty card signed from the consumer so that the time starts running on that basis. The irresistible conclusion is that the opposite party withheld the material evidence which goes to establish that the compressors used in the two air-conditioners were not original, un-used sealed units but were second-hand pieces having been repaired. In view of the categorical representation of the opposite party that the air-conditioners contained original sealed units of Sri Ram compressors and infect repaired compressors had been used amounts to unfair trade practice. We are unable to accept the reasoning of the learned District Forum that where the dealer is not a manufacturer there is no question of warranty. In fact the manufacturers are generally not the dealers. The manufacturers especially when they are of big size, have necessarily to depend on chain of dealers including wholesale dealers and retail dealers to sell the goods manufactured by them. Warranty in such cases has to be issued by the dealer selling the goods. It is not disputed that the compressors in question also carried a warranty. The dealer failed in his duty to pass on the warranty card to the appellants. In any case, in the facts and circumstances, we proceed on the assumption that the warranty card had been given to the consumer. The dealer cannot avoid his liability simply on the ground that he was not the manufacturer. It is the responsibility to carry out the terms of the warranty and in turn he may involve the manufacturer in fulfilling their obligations under the warranty. According to the respondent the cost of original sealed compressor of Sri Ram at the relevant time was Rs. 8,000/-. No other defect has been brought out by the complainant. We take note of the fact that atleast for sometime, admittedly, the complainant used the air-conditioners. In the facts and circumstances of the case it would meet the ends of justice if the respondent pays to the appellant Rs. 10,000/- in each case to compensate him for the deficiency as well as the inconvenience to which the appellant was put. We, accordingly, allow both these appeals, set-aside the order of the District Forum and direct the respondent to pay Rs. 10,000/- in each of these cases to the appellant concerned within 30 days of the receipt of a copy of this order failing which the respondent would render its liability for action u/Section 27. A copy of this order be communicated to both the parties as well as District Forum-I. Appeals allowed.