BPL REFRIGERATION LIMITED vs RIYAZ MEHNDI

THIS revision is directed against the judgment and order dated 23.9.2000 passed by District Consumer Forum, Aligarh in Complaint Case No. 221 of 1999 and the order passed by the same Forum on 16.5.2001 in execution proceedings arising out of the same judgment and order.

THE facts of the case are that the complainant Dr. Riyaz Mehndi purchased a 250 lit. refrigerator at a cost of Rs. 19,500/- on 22.12.1998 from the opposite party No. 1. A warranty card was also issued. THE Refrigerator could not work properly from the beginning itself. Complaints were, therefore, made to the opposite party No. 1. THE mechanic sent by the opposite party did come to see the refrigerator but the same could not be set right. THEreafter, the complainant sent a letter dated 17.8.1998 to opposite party No. 3. Again a mechanic was sent to set right the refrigerator but there was no success. THE refrigerator has not been set right till the date of filing of the complaint. A complaint was, therefore, lodged before the District Consumer Forum seeking replacement of the fridge. The opposite party Nos. 2 and 3 filed written statement before the learned District Forum and denied the allegations raised in the complaint. It was stated that information had been given by the complainant only after six months of the date of purchase of the refrigerator. The bye-meter of the refrigerator was thereafter replaced. It is wrong to say that the mechanic of the opposite party sent on 17.9.1998 could not set right the refrigerator. The complainant wants to change the refrigerator after using it for one year and five months. The opposite party No. 1 did not contest the case before the Forum.

The parties filed evidence before the learned District Forum in support of their respective contentions and after hearing them the District Forum decreed the complaint and directed the opposite party Nos. 2 and 3 to replace the refrigerator with the same specifications within a period of one month. In the alternative the Forum directed that the cost of refrigerator amounting to Rs. 19,500/- be paid to the complainant by the opposite parties. In case the amount awarded is not paid to the complainant within a period of one month, then interest at the rate of 12% per annum was also payable by the opposite parties from the date of filing of the complaint till the date of payment. A compensation of Rs. 500/- and cost of Rs. 200/- were also awarded to the complainant.

THE Forum proceeded to execute its own judgment and order and issued notice to the opposite parties for satisfaction of the decree. On 16.5.2001 when both the parties were present before the District Consumer Forum, the Forum passed an order that since the complainant has already purchased another fridge, therefore, the consumer is not expected to wait for such a long time in these days. In view of this matter the cost of the refrigerator as mentioned in the impugned order is to be paid by the opposite parties. THE opposite parties were directed to comply with the judgment and order passed by 24.5.2001. Aggrieved of this order the opposite party Nos. 2 and 3 have come in this revision.

WE have heard the authorised representative of the revisionist and the learned Counsel for the opposite party. The authorised representative of the revisionist has argued that the judgment and order dated 23.9.2000 came to the knowledge of the revisionist only on 5.1.2001 and all out efforts were made to replace the refrigerator of the complainant. The Forum vide its judgment and order had given the option that if replacement of the refrigerator is not possible, then the refund of the value of the refrigerator has to be made, but in the execution proceedings the Forum had passed the order that cost of the refrigerator be returned to the complainant. Therefore, choice was left on the revisionist to get the refund of the cost of the fridge. The learned Counsel for the opposite party argued that the District Forum passed the judgment and order on 23.9.2000 when the representative of the B.P.L., opposite party, was also present in the Court but did not receive the copy of the order which he collected only in the month of January, 2001. Considering the fact that the complainant has already bought another refrigerator after patiently waiting for two years and the particular model of B.P.L. refrigerator is a failure and even their dealers had stopped selling this model, therefore, the District Forum instructed the opposite parties in the execution proceedings on 16.5.2001 that the entire cost of the refrigerator along with interest be paid to the complainant by 24.5.2001. The complainant had asked opposite party, B.P.L. to replace the refrigerator and they did not respond and when after suffering for many years, another refrigerator has been bought. It was also argued by him that the revision is not maintainable because the judgment and order passed by the District Forum on 20.9.2000 has become final. A perusal of the papers in the revision file goes to show that the copy of the judgment and order dated 20.9.2000 was obtained on 5.1.2001 and the revision was filed on 22.5.2001. As a matter of fact only an appeal lies against the judgment and order and not a revision. The judgment and order has become final and it is only when the execution proceedings were drawn and orders were passed on 16.5.2001, the revisionist has filed a revision. In the application for condonation it has been stated that the copy of the judgment and order was received by the complainant who deliberately and intentionally kept the fact hidden from the revisionist and did not inform the decision of the District Forum and it was only on 5.1.2001 that the revisionist came to know of the judgment and order passed by the Forum. If that was so, an appeal could have been filed by the revisionist immediately after 5.1.2001 but instead a revision was filed on 22.5.2001 when the orders in the execution proceedings had already been passed by the District Forum on 16.5.2001.

THE opposite party had contested the case before the District Forum and as per version of the complainant, the opposite party was in the know of the judgment and order on the day it was delivered. It appears that the revisionist deliberately avoided compliance of the order passed by the Forum on 23.9.2000 and only when an order was passed in execution proceedings then the revisionist through this revision has prayed that the judgment and order dated 23.9.2000 and the order in execution proceedings dated 16.5.2001 be set aside. We, therefore, find that the revisionist deliberately and intentionally did not comply with the orders passed by the Forum and instead preferred to file this revision. THE District Consumer Forum had clearly passed an order that the refrigerator in question be replaced within a period of one month. THE revisionist kept silent and after waiting for more than one year the complainant had to purchase a new refrigerator. THErefore, in the execution proceedings the learned District Forum was perfectly right in observing that since the judgment and order dated 23.9.2001 has not been complied by the opposite parties and replacement had not taken place within a period of one month, therefore, there was no alternative than to order for the refund of the cost of the refrigerator. We find no fault in this order and the revision is liable to be dismissed. ORDER THE revision is dismissed and the orders passed by the District Consumer Forum in execution proceedings on 16.5.2001 are confirmed. THE revisionist shall pay a sum of Rs. 2,000/- to the opposite party/complainant as cost of revision. Let compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Revision dismissed.