COMMERCIAL AGENCIES, SARAFA BAZAR vs S.S.SHUKLA

BOTH these appeals arise out of complaint case No. 113/90 decided by District Forum, Gwalior on 11.3.1991, and, therefore, they are being disposed of by a common order. BOTH the appellants in above appeals were respondents. In the complainant case before the Forum. The learned Forum had ordered that O.Ps. shall pay Rs. 2,000/ - being the expenses incurred by the complainant on repairs of Godrej refrigerator, and compensation of Rs. 1,500/- for the inconvenience caused as the fridge remained in a condition of disuse for a period of six months. Accordingly, in the ex-parte proceedings against the O.Ps. they have been ordered to pay total amount of Rs. 3,500/- with a direction that the order shall be complied by 22.4.1991.

IT is not in dispute that the complainant Shri S.S. Shukla had purchased some time in Dec, 1985, a refrigerator from Mahindra Agencies, Gwalior, who is a sub-dealer. The appellant in appeal No. 37/91 namely, Commercial Agencies are the principal dealers of Godrej and Boyce Mfg. Co. Ltd., Bhopal. Both the appellants in the above appeals as also Mahindra Agencies - sub-dealer were sent notices. Only M/s. Commercial Agencies appellant in appeal No. 37/91 filed its version about the complaint. Shri Khedkar, Advocate appeared but on the date fixed for evidence, none appeared. Accordingly, Commercial Agencies (Appellant in 37/91) was also proceeded ex-parte. The evidence of the complainant Shri S.S. Shukla was recorded and impugned order was passed ex-parte. The complainant''s case is that the refrigerator was purchased from Mahindra Agencies - sub-dealer, some time in December, 1985 but he was given the Bill and the Receipt on 23.2.1986 (Ex. P-1 and Ex. P-2, respectively). A "Consumer Card" (Ex. P-3 No. 5340) was also issued. The complainant further alleged, that refrigerator stopped functioning on 26.7.1990. He complained to Commercial Agencies, and after about one month the dealer replaced the Sealed Unit System but the fridge after 4 or 5 hours again stopped functioning. The complainant again lodged a complaint, and the proprietor of Commercial Agencies namely, Shri Uday Bhansali said that the "earthing system" and "thermostat" were defective. The complainant had to incur Rs. 1,000/- for earthing system. In spite of those repairs, the fridge did not function. And there was current in the body of the fridge. For the second time, the sealed unit system was replaced. The thermostat was infact in good order, but commercial agencies charged Rs. 385/- for its replacement. On 6.10.1990 he lodged a complainant in writing and in context acted Shri Bhansali, but the latter had been evading the complainant, on one context or another. On 7.11.1990, the sealed unit system was replaced for 3rd time, but after 7 or 8 hours, the fridge did not function, on 8.11.1990. The complainant again lodged a complaint and had been contacting the Commercial Agencies. Lastly, for the 4th time, the unit was replaced on 1.12.1990. Since then, the fridge is in working condition. On those facts, the complainant has claimed Rs. 2,000/- for expenses incurred towards thermostat and earthing, and Rs. 3,000/- as compensation. It is also alleged that in those circumstances, the guarantee period of the refrigerator be extended for a period of further two years because there is apprehension that the 4th sealed unit system could also be defective.

M/s. Mahindra Agencies alone filed its version of the complaint. It is alleged that the fridge was purchased in 1985, and the guarantee period was over in Dec, 1990. Whatever and whenever complaints were received, they were promptly attended. The guarantee is only as regards ''sealed unit system'' for a period of 5 years, and the guarantee for other accessories is for a period of one year, and thereafter any complaint about accessories could be attended only on payments. The complaints were duly attended but the complainant did not make payment for the repairs, and it is alleged that this complaint has been filed well in advance on 26.12.1990 which is just before the end of guarantee period. The refrigerator, at present is functioning satisfactorily and does not have any defect. That the complaint is false and is liable to be dismissed with compensation of Rs. 10,000/- to the O.Ps.

TO recall, only Commercial Agencies - O.P., filed written reply and put in appearance through Shri Ashok Khedkar, Advocate. But none appeared at the stage of evidence and, therefore, the learned Forum proceeded ex-parte and passed the aforesaid orders. We have considered the various grounds raised in the appeal memorandum; firstly, it is alleged that the learned Forum on 11.3.1991 proceeded in absence of OP''s Counsel Shri Khedkar in hot Haste. We are not impressed by these submissions. The order-sheet itself shows that the learned Forum waited upto 3.30, and thereafter proceeded ex-parte. It recorded the statement of Shri S.S. Shukla and passed the orders. The ground that the learned Counsel was busy in High Court is not a sufficient ground for his non-appearance in the complaint case before the learned Forum.

SECONDLY, it is urged that the fridge was purchased on 3.12.1985, and till 26.7.1990 it functioned without any trouble. The guarantee for any defect in the sealed unit system was for a period of 5 years which ended on 3.12.1990. It is difficult to accept the submission that the fridge was purchased on 3.12.1985. In the complaint itself, this date is not mentioned. On the other hand, the bill (Ex. P-1) and the receipt (Ex. P-2), both are dated 23.2.1986. There is an endorsement on Ex. P-1 that the amount of Rs. 4,550/-was received on 22.2.1986 by a draft of even date. On these facts on record, it is not possible to accept the submission that the guarantee period of five years in respect of the sealed unit was over by that time. It is not denied in the written reply that the sealed unit system has not been replaced number of times. However, it appears that the sealed unit system had been replaced in the guarantee period of five years, and the last occasion for replacement was 1.12.1990. The averment in the complainant as also in the statement clearly indicates that the refrigerator has been functioning satisfactorily thereafter. Thirdly, it was urged that the impugned order was made without issuing any notice to the appellant-Godrej and Boyce Mfg. Co. Ltd. (Appellant in appeal No. 44/91) The record shows that the above said appellant was duly served and the acknowledgement receipt contains seal of the Company. Therefore, this contention is without any substance. Forthly, it was urged that the award of Rs. 2,000/- as cost of earthing and other expenses and on thermostat has nothing to do with the quality and functioning of the refrigerator. The purpose of proper earthing is to avoid possibilities of shocks due to current. According to the complainant, he had incurred Rs. 1,000/- for earthing similarly Rs. 385/- were incurred on ''Thermostat''. It is an accessory for which the warranty operated only for 12 months from the date of purchase. There is substance in the contention that for those two items, the complainant could not have been reimbursed (Rs. 1000 + 385 = 1,385). It is not clear why the above figure is further inflated and then rounded up as Rs. 2,000/-. Accordingly, we find that the award in respect of aforesaid Rs. 2,000 is unwarranted.

FIFTHLY, it is urged that the case be remanded to the learned Forum to enable the appellant to lead proper evidence. We have already noted the circumstances in which the O.Ps. were duly served but did not appear in the Forum. We do not think this is a proper case to remit the complaint to the District Forum.

SIXTHLY, it was urged that under Sec. 14(1)(d) of the Act, compensation could be awarded only if the loss or injury suffered by the ensumer is due to the negligence of the O.Ps. In the instant case, the complainant case is that the refrigerator sold to him was "defective". That expression has been duly defined under Sec, 2(f) of the Act. This case is not founded on negligence but arises out of contractual obligations and for supplying a defective piece, we do not dispute the proposition that the compensation has to be assessed on the basis of well accepted legal principals. But the facts in Bharat Tractors v. Shriram Chand Pande reported in I (1991) CPJ at page 152 (NC) 154 para 4 are quite distinguishable. In the instant case, the seled unit system which was defective had to be replaced on four occasions, Obviously, during the intermittent periods, as the complainant had deposed, he was put to lot of inconvenience and harassment. Refrigerator has become an article of necessity even for middle classes. Refrigerator has its own facility and convenience to a family. The family as deposed by the complainant was deprived of cold water facilities and that too at a place like Gwalior which is notorious for hot weather. During the intermittent periods, complainant was unable to put vegetables and eatables in cold storage. Obviously, therefore, there was inconvenience though it is not possible to mathematically quantify the damages. But we are of the view that a token award of Rs. 1,000/- would meet the ends of justice. In the result, the appeals are partly allowed. The order passed by the learned Forum, Gwalior in respect of expenditure incurred on earthing/wiring and thermostat and rounding of the amount to Rs. 2,000/- are set aside. But the amount of compensation Rs. 1,500/-is reduced to Rs. 1,000/- as nominal damages. The parties shall bear their own costs throughout. Appeal partly allowed.