Expo Machinery Ltd. vs DILIP KUMAR

THIS is an appeal by Expo Machinery Ltd. and firm Mannalal Mohanlal against the order of the District Forum, Jhalawar dated 28th Aug., 1992 whereby the District Forum allowed the complaint filed by the respondent and directed the appellants to replace a Kelvinator refrigerator free from any defect.

FACT leading to this appeal are: that on 12th July, 1991 respondent-complainant filed a complaint before the District Forum, Jhalawar. That on 4th Sept., 1990 he had purchased a Kelvinator refrigerator of 165 ltr. capacity for an amount of Rs. 7500/- from firm Mannalal Mohanlal carrying on business at Jhalawar. This refrigerator was purchased by the complainant for his domestic use. It was alleged that the refrigerator did not work well and on several occasions, the complainant made complaints to the above firm regarding the defective working of the refrigerator. The service engineer of the firm inspected the refrigerator several times but the defect was not removed. It was alleged that the refrigerator gave electric current and the water did not freeze to make ice. The refrigerator also did not have necessary cooling effect. It was even sent to the shop of the firm Mannalal Mohanlal for repairs but the defect was not removed. The complainant requested the firm to replace the defective refrigerator by a new refrigerator but the firm disowned its responsibility. The refrigerator was purchased by the complainant for his use and benefit and since it was not working well, he suffered damages as he was deprived of its benefits. The complainant therefore prayed that the opposite parties impleaded by him in the complaint may be directed to replace the refrigerator and to pay Rs. 5000/- as compensation to the complainant. Notice of the complaint was issued to the opposite parties. Firm Mannalal Mohanlal through its partner Anil Agarwal filed a version in its reply. The version put forward was that the complainant had purchased a Kelvinator refrigerator of 165 Its. capacity from the firm on 4th Sept., 1990 for Rs. 7500/-, However, it was denied that the complainant made any grievance regarding defective working of the refrigerator. For the first time, on a complaint being received, the mechanic of the firm went on 5th July, 1991 at the place of the complainant and he found that the complainant had cut the lead of main electric point and had put his own wires. Apart from that the electric wiring was defective and as a result thereof the compressor of the refrigerator became out of order. This defect occurred on account of the fault of the complainant and yet the firm replaced a new compressor. The refrigerator was lying at the shop run by the complainant and the complainant could take back the same. It was stated that the complainant was not entitled to any relief.

Evidence was adduced by the parties before the District Forum by affidavits. During the pendency of the case, the complainant impleaded Expo Machinery Ltd., 51, Dhuleshwar Garden, Jaipur as opposite party in the complaint. Notices were issued to Expo Machinery Ltd., but it remained ex-parte.

IT appears that on 6th May, 1992 the District Forum passed an interim order to the effect that firm Mannalal Mohanlal would go to the place of the complainant and start the refrigerator. After the expiry of one month, the complainant will report to the District Forum whether the refrigerator was working well or not. IT was also directed that in case there was any defect in the electric fitting at the place of the complainant, the same would be removed by the complainant. After the expiry of the period of one month, the complainant made an application on 19th June, 1992 that the defects in the refrigerator continued. The refrigerator did not have the cooling effect, the water did not freeze into ice and the refrigerator gave electric shocks. On behalf of firm Mannalal Mohanlal, reply to the application was filed and it was stated by the firm that the refrigerator was working quite alright. On 18th June 1992 the firm had send Sudhir Bhatia, an engineer to inspect the refrigerator but the complainant did not allow Sudhir Bhatia to inspect the same. Affidavit of Sudhir Bhatia was also filed. Thereafter the District Forum directed the parties to name an individual from each side so that the persons named may be appointed as Commissioner to inspect the refrigerator. Mohd. Ahsan was named on behalf of the complainant and Hiddaytulla on behalf of the firm. They were directed to inspect the refrigerator and to make a report. Mohd. Ahsan was an engineer employed by Voltaz. He inspected the refrigerator and reported various defects knowing to which there was no cooling effect in the refrigerator. He also noted some dent in a portion of the refrigerator due to which the gasket was not correctly adjusted. He also reported that it was not possible to remove the dent. Hiddaytulla who was named by the firm also gave his report. The District Forum after considering the evidence adduced from both the sides as well as the report of the Commissioners came to the conclusion that the refrigerator was found defective within the period of warranty and according to the report of Mohd. Ahsan, it was not possible to remove the defects. Consequently the District Forum directed the appellants to replace a new refrigerator at the place of the complainant instead of the defective refrigerator. Aggrieved by this order Expo Machinery Ltd., Jaipur and Firm Mannalal Mohanlal have filed this appeal. IT was contended by the learned Counsel for the appellants that the District Forum has not correctly appreciated the evidence adduced before the District Forum. IT was submitted that warranty had been given to replace the sealed unit or compressor and not to replace the refrigerator itself and therefore, the District Forum was not justified in issuing directions for the replacement of the refrigerator. IT was also urged that instead of appointing expert, the District Forum appointed Commissioner to inspect the refrigerator which was not proper. So far as Mohd. Ahsan was concerned he was an employee of Voltaz Refrigerator which was a competitive business concern in refrigerators as against dealers in Kelvinator refrigerators. On account of business competition, correct report could not be expected from Mohd. Ahsan. The learned Counsel also argued that the District Forum had dropped the proceedings as against Expo Machinery Ltd., Jaipur and therefore no directions could be issued against Expo Machinery Ltd., The learned Counsel further submitted that the refrigerator had been inspected on 7th May, 1991 and 15th June, 1991 by the mechanics of the firm and the complainant had given satisfactory certificate. IT was therefore argued that the directions of the District Forum to replace the refrigerator were not justified. As already stated, it is not disputed that Kelvinator refrigerator of 165 lts. capacity had been purchased by the complainant from the firm Mannalal Mohanlal on 4th Sept., 1990 for Rs. 7,500/-. The firm had stated in its reply that for the first time, on the receipt of the complaint from the complainant, mechanic was sent by the firm to replace of the complainant to carry out repairs on 5th July, 1991 and the mechanic found that the electric wiring were defective and that the lead wire had been cut and therefore the compressor had become out of order. As against this the firm produced a customer satisfaction certificate dated 15th June, 1991 in order to show that the refrigerator was attended to by the mechanic of the firm on that day to the satisfaction of the complainant. This certificate itself goes to show that the version of the firm that for the first time the mechanic had been sent on 5 th July, 1991 has not correct. The customer satisfaction certificate dated 15th June, 1991 itself goes to show that the complainant had in fact made complaint to the firm about the defects in the refrigerator even prior to 15th June, 1991 and that was why the mechanic went to the place of the complainant on 15th June, 1991. The mechanic had himself recorded in this certificate that the complaint was that there was no cooling effect. No repairs were noted to have been carried out and yet the mechanic noted on the certificate that the refrigerator was found O.K. It was not mentioned that the complaint made by the complainant that the refrigerator had no cooling effect was false. The firm therefore cannot deny any advantage from the certificate. On the other hand the certificate goes to show that the complainant had made a complaint that the refrigerator did not have cooling effect. It is an admitted fact that the compressor was found to be out of order and the firm replaced the compressor when the refrigerator was at the shop of the firm. This implies that when the mechanic went to the place of the complainant on 15th June, 1991 there were defects in the refrigerator. That was why the refrigerator was shifted from the residence of the complainant to the shop of the firm and compressor was replaced on 5th July, 1991 at the shop of the firm.

MANUFACTURERS of Kelvinator had issued one year''s warranty for complete refrigerator. It was provided in the warranty that the refrigerator and all parts thereof (except the light bulb and the crisper glass) to be free from defects in material and workmanship. The one of the limitations of the warranty were that Expo''s obligation under the warranty will cease to be applicable to defects arising out of pulled out power cord, blown fuse or improper electrical circuit. Had there been any defect arising cut of pulled cut power cord, blown fuse or improper electrical circuit, these defects would have been noted by the mechanic when he went to the place of the complainant on 15th June, 1991 but no such thing was mentioned in the certificate. Instead of that the refrigerator was shifted to the shop of the firm and compressor was replaced there. This supports the case of the complainant that the refrigerator supplied was defective. The District Forum had also appointed Commissioner and Mohd. Ahsan in his detailed report specifcally pointed out various defects in the refrigerator and stated that the defect cannot be removed. Merely because Mohd. Ahsan was an engineer employed by Voltaz, it cannot be said, in the absence of any material on the record, that his report was wrong. It may also be mentioned that there was leakage in gas valve and 80 gms. gas was deficient and for that reasons that there was not complete cooling effect. It would thus appear that even the person Hiddaytullah, who was named by firm Mannalal Mohanlal also found gas leakage defect in the refrigerator. Mohd. Ahsan had clearly noted that the gasket is not properly adjusted in the refrigerator and this defect cannot be cured because there was a dent and it was not possible to remove this defect. It was thus very well established that the refrigerator sold by the firm Mannalal Mohanlal to the complainant was faulty. As to the contention that the District Forum had dropped the proceedings against Expo Machinery Ltd., 51, Dhuleshwar Garden, Jaipur, suffice it to state that it was not against Expo Machinery Ltd., 51, Dhuleshwar Garden, Jaipur that the proceedings had been dropped by the District Forum but it was as against Expo Machinery Ltd., New Delhi, which was opposite party No. 2 in the complaint, against which the District Forum had dropped the proceedings at the instance of the complainant. So far as appellant No. 1 is concerned, the complainant had applied for impleading it as a party and the District Forum impleaded it as a party. Appellant No. 1 had been served by the District Forum and it remained absent despite service and was proceeded ex-parte. The contention of the learned Counsel for the appellants is therefore not correct that proceedings as against appellant No. 1 had been dropped by the District Forum on 13th April, 1992.

THE appeal has therefore no merit in it and it is hereby dismissed. I shall leave the parties to bear their own costs. THE interim order granted by this Commission on 14th Oct., 1992 is hereby vacated. Appeal dismissed.