ASIAN DIESEL CORPORATION vs VINU BAIG

THIS appeal is directed against the order dated 9.6.2004 passed by District Forum (East) whereby complaint of the respondent seeking compensation for deficiency in service in respect of a Diesel Generator Set (in short D.G. Set) was allowed with following directions to the appellant: (i) To refund the entire sale price i.e., 2,60,000/- with interest at the rate of 9% per annum from 15.3.2003 (date of filing complaint) till realisation under Section 14(1)(c) of the C.P. Act. (ii) To remove the Gen. Set from the premises of the complainant. (iii) Pay a sum of Rs. 2,500/- (Rs. two thousand five hundred) as compensation and pay Rs. 1,000/- (Rs. one thousand) as cost of litigation to the complainant.

THE appellant is an agent of M/s. Kirloskar Oil Engine Limited. THE complainant purchased 20 KVA sound attenuated DG set from the appellant after informing the appellant about the requirement of a Gen. Set of 3 units of 1.5. ton AC. THE appellant assured its capacity vide letter dated 30.5.2002 informing the complainant that it will cost Rs. 2,60,000/-. THE appellant further assured the complainant that a 20 KVA Gen. Set was sufficient to take the load of 4 air conditioners and other electrical appliances. THE Gen. Set started giving trouble from its inception. THE respondent sent letters after letters of her complaint almost every week or fortnight, the details of which have been provided by the District Forum in the impugned order. Defects brought to the notice of the appellant and the mechanics who were sent for removal of defects are projected in letters dated 9.8.2002, 11.8.2002, 12.8.2002, 26.8.2002, 29.8.2001 11.9.2002, 12.9.2002 so on and so forth. Vide letter dated 12.8.2002 Auto Switch Oil System was repaired. THE mechanic of Classic Engineering Works regarding fitting of fly wheel work was deputed but it could not be fitted and ultimately it was changed. Inspite of all these the main work remained pending. Again there was a problem of UST starting relay which was removed on 12.9.2002. The grievance of the appellant is mainly two folds. Firstly, that the maximum capacity of a 20 KVA Gen. Set is 270 AMP whereas the report dated 5.8.2002 shows that it is 68 AMP. It is contended by the Counsel for the appellant that so many electric appliances were being used by the complainant and, therefore, the Gen. Set could not cope not up with the need of running 4 ACs. We do not find any substance in this contention as the consumer is concerned with the proper functioning of a goods which he purchased from the vendor as per its assurance. The series of letters sent by the complainant and the complaints attended by the appellant show that there were such defects some of which were removed and some could not be removed after attending to them on several occasions by the mechanics. Once the maximum current output of 20 KVA Gen. Set was assured 270 AMP capacity it was either because of deficiency in service or because of defective Gen. Set that the capacity or load of engine was found to be 68 AMP only. Even if it is held that the Gen. Set was not having manufacturing defects still the problem the complainant was facing every now and then shows that there was gross deficiency in service.

As regards the second point raised by the Counsel for the complainant that he being an agent of the disclosed principal is not liable to refund the price. Counsel has relied upon Section 230 of Indian Contract Act which reads as under: "230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal.-In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary- Such a contract shall be presumed to exist in the following cases: (1) where the contract is made by an agency for the sale of purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal; (3) where the principal, though disclosed, cannot be sued.

BARE perusal of the aforesaid provision shows that the appellant cannot take benefit of this provision as sale of the consumer goods was made by him directly to the complainant and not by way of a contract on behalf of the principal namely Kirloskar Oil Engine Limited. If such a plea is accepted then every agency in future would take the refuge that it is not liable for supplying defective goods or deficiency in service as he is merely an agent of a disclosed principal. Privity of contract was between appellant and the respondent. Every contractor or provider of service must be cautious and have conscience that its consumers and their satisfaction is source of his survival and prosperity. If the consumer makes complaints several times about the defective goods supplied or sold by a vendor and the defects are not removed and the money has not been refunded defective goods cannot be allowed to become a source of constant inconvenience, harassment and mental agony to the consumer. Such an approach would defeat the object of consumerism and fail to control the unscrupulous traders or vendors who treat their customers and consumers as their menials or subjects.

IN view of the foregoing reasons we do not find any merit in the appeal and dismiss the same in limine. The FDR filed along with the appeal be returned to the appellant under proper receipt. A copy of this order, as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to record room. Appeal dismissed.