CREST And CO vs MOHAN SINGH SACHDEVA

AT the time of hearing arguments, learned Counsel for the appellant has produced affidavit of F.C. Sabharwal, General Manager of the appellant Company accompanied by copy of a notice issued by Presiding Officer, Labour Court, Jalandhar in some other case informing the party that Mr. Mohan Singh Sachdeva, Advocate, General and Legal Secretary of the Manufacturers'' and Employers'' Association and one Ashwani Kumar would be representing the Managing Director, The Doaba Co-op. Sugar Mills Ltd. The photo copy of provisions of Section 36 of the Industrial Disputes Act, 1947 has also been produced. Sub-section 3 thereto provided that no party towards industrial dispute shall be entitled to be represented by their legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court (Labour Court). This has been done primarily to assert that fax machine purchased by the complainant Mohan Singh Sachdeva, Advocate was for promoting his profits as a paid Secretary of various associations. Such documents produced at the appellate stage and that too at the argument stage cannot be taken on the record as additional evidence, more so, when to that extent there was no specific plea raised in the written statement, much less cogent, that while working as Secretary of such associations, he was entitled to appear before the Labour Court, he was making any profits in the sense of commercial activity to take him out of the purview of definition of consumer as defined under the Consumer Protection Act. This is nothing but venom spitting spree of a frustrated litigant who had failed before the District Forum and is in appeal.

THE District Forum, Jalandhar on July 23, 1998 allowed the complaint filed by Mohan Singh Sachdeva, an Advocate of Jalandhar City against M/s. Crest and Company, the opposite party. A direction was given to the opposite party to refund Rs. 18,500/- alongwith interest and 18% p.a. from the date of purchase of fax machine till payment. Compensation of Rs. 5,000/- @ cost of Rs. 2,000/- were also directed to be paid. Hence the aforesaid order has been challenged by the opposite party in this appeal. Ux 106 Fax Machine was purchased by Mohan Singh Sachdeva, Advocate from the opposite party on December 10, 1986. There was guarantee of one year for proper functioning of the machine. Immediately thereafter, defects having occurred, twice the machine was repaired by the opposite party but still the defects persisted. District Forum was approached with the complaint on January 21, 1998. In the written statement filed, the opposite party took up the plea that the complainant was not a consumer as defined. There was no sale of the fax machine as no price had been paid by the complainant although it was promised to be paid. Defects in the machine were denied. The said machine was stated to have been given to the complainant on trial basis but was not sold. The District Forum accepted the stand of the complainant holding the complainant to be a consumer and finding defect in the machine, the impugned order was passed further observing that the machine having become absolete being old model, replacement could not be ordered.

Learned Counsel for the appellant has argued that the complaint was barred by time and that the complainant was not a consumer as defined. No relief for refund of the price could be ordered as no price was ever paid by the complainant. The complainant had failed to produce any expert witness regarding defect in the machine. The blackening of the paper or show time in transmitting the message were not such defects which could not be removed by repairs. We have given due consideration to these arguments but we find no merit therein. As far as the question of limitation is concerned, the complaint was filed on January 27, 1998 and in view of Section 24(A) of the Consumer Protection Act, the complaint could be filed within a period of two years from the date of accrual of cause of action. No doubt, fax machine is alleged to have been purchased on December 10, 1996 but the cause of action accrued when the defect appeared therein, more so, there was one year guarantee attached to the contract of sale. If the defect appeared within one year of sale therefrom within two years the complaint could be filed and the present complaint filed on January 21, 1998 would be well within time, more so, when during this period twice the opposite party effected repairs to the machine as would be indicated from the Annexures C2 and C3, the service reports dated July 7, 1997 and September 24, 1997. In Ex. C2, the defect pointed out is blackening of the pages (CHR) and in the report Annexure-C the nature of the fault reported is CHR (dead). In case the machine became dead on September 24, 1997 as is clear from Annexure C-3, the complaint filed in January, 1998 is well within time. It is so held.

THE status of the complainant to be a consumer depends upon the purchase of fax machine by him on payment of consideration or on deferred payment of consideration. THE word consumer has been defined under Section 2(1)(d) of the Consumer Protection Act providing as above. In para 2 of the complaint, it was specifically pleaded by the complainant that the Fax Machine Model UX 106 was purchased from the opposite party in the month of December, 1996 against payment of Rs. 18,500/-. In the reply corresponding para 2 on merits, it was stated that no payment was made, no bill was issued indicating thereby that the complainant was liable to pay the amount of the machine. It was further asserted that instead of paying the amount, complaint has been filed which is obviously false and frivolous. Since the complainant has not made the payment, he could not file the complaint. In para 3 of the complaint, it was asserted that warranty was attached to the sale. To this limited plea, in para 3 on merits in the reply, the opposite party admitted that the warantee started from the sale but asserted that since there was no sale, there was no question of any warantee as the machine was sent for testing. Instead of making payment for the machine, the complainant was asking for issuance of the bill. A suit was filed against the opposite party. A rejoinder was filed by the complainant reiterating the stand as taken up in the complaint. THE complainant filed his own affidavit whereas F.C. Sabherwal, General Manager of the opposite party submitted his affidavit (Ex. O-1). As already stated above, twice as per Annexures C-2 and C-3, the opposite party provided services for repairing the machine. THE complainant took up the stand that at the time of delivery of the machine, the price was paid to the representative of the Company who made endorsement on the back of Annexure C-1 which was separately exhibited as Annexure C-1/1 which is for a total amount of Rs. 21,000/- i.e. Rs. 18,500/- + Rs. 2,700/- Total Rs. 21,000/-. It is Annexure C-1 which is a delivery note-cum-challan dated December 10, 1996 vide which the fax machine was sent to the complainant. THE opposite party has not produced any evidence of the representative through whom the machine was sent denying the assertion of the complainant regarding payment of its price. If the machine had not been sold, there would have been no question for the opposite party to send their Service Engineer for effecting repairs to the machine even if it was sent for testing only as is the stand of the opposite party. THE machine would have been got back if there was no sale. Thus, holding that the payment was made, the complainant is held to be a consumer as defined alternatively even if the payment of the price was deferred as is the stand of the opposite party, the complainant would be a consumer as defined. Since warantee was attached to the sale of the machine, it is immaterial whether the same was purchased for commercial activity as it is a compact of sale of goods accompanied by contract of hiring service. In the present case, rendering of services has also been established as demonstrated from Annexures C-2 and C-3 already referred to above. If subsequent to the filing of the complaint, any civil litigation has been initiated between the parties, any finding recorded in the present proceedings would have legal effect on such civil proceedings according to law, but on that ground that further proceedings are initiated subsequently the Fora cannot stay its hands in granting the relief to the complainant under the Consumer Protection Act.

TWO defects were pointed out by the complainant; blackening of the pages and that ultimately the machine had become dead as is clear from Annexures C-2 and C-3 referred to above (complaint is dated September 24, 1997). We find no offer having been made on behalf of the appellant to remove the defects and make the machine workable during the years, the proceedings remained pending before the District Forum. In such circumstances, when model of the machine had become obselete, the right course was to refund the price of the machine and pay compensation for the harassment caused. Grant of compensation is under Section 14(1)(d) of the Consumer Protection Act. If there is specific evidence of any loss suffered, compensation can be granted on such evidence. Otherwise such compensation can be granted either by allowing interest @ 18% on the money value or on estimation. In the present case, the District Forum has allowed compensation on two counts referred to above i.e. @ 18% interest on the price of the machine as well as a separate amount of Rs. 5,000/- compensation on estimation. Double compensation is not permissible under the provisions of the Consumer Protection Act. District Forum was not justified in the facts of the present case to separately grant compensation of Rs. 5,000/- in addition to the compensation by interest @ 18% p.a. To that extent, the order of the District Forum requires modification and we order accordingly. For the reasons recorded above, this appeal is partly allowed. The order of the District Forum is modified with the direction to the appellant to refund the amount of Rs. 18,500/- with 18% p.a. interest from the date of sale of the machine till payment and cost of Rs. 2,000/- as awarded by the District Forum. On doing so, the complainant would return the machine. Let it be done within a month of receipt of copy of this order. Appeal partly allowed.