KELVINATOR OF INDIA LIMITED vs NILESH RASIKLAL SOLANKI

THIS, appeal arises from order dated 23rd January, 2002 rendered by the learned Jamnagar District Consumer Disputes Redressal Forum in Complaint Application No. 4/2000 directing the opponent No. 2 Company to pay to the complainant the value of the refrigerator in the sum of Rs. 10,300/- and also directing the opponent No. 1, the dealer who had sold the refrigerator to the complainant, to pay Rs. 4,000/- by way of compensation within 30 days from the date of the order.

OPPONENT No. 2 Company has preferred this appeal against the impugned order. Original complainant has been served with the notice of this appeal. Original opponent No. 1 has been joined as party in this appeal. We have gone through the impugned order. We have heard the learned Advocate appearing for the appellant, original opponent No. 2 company. It would appear from the facts noted in the impugned order that the complainant purchased the refrigerator in question from opponent No. 1 on 13.3.1996. Opponent No. 2 is the manufacturer of the refrigerator in question. Opponent No. 3 is the main dealer of Saurashtra region for the refrigerator in question. There was a service contract of six years between the complainant and opponent No. 2 company through the first opponent from whom the refrigerator was purchased. Soon after the purchase of the refrigerator the complainant started facing a great deal of difficulty in respect of the working of the refrigerator. Repeated oral complaints were made to the original opponent No. 1, but no satisfactory service was rendered by the said opponent. The technicians who visited the complainant''s premises found upon the test carried out on the refrigerator in question that the compressor of the refrigerator was burnt. The refrigerator was opened, dismantled and the pipes were also removed. They left the complainant''s premises saying that the technicians from the opponent No. 2 company will attend the refrigerator. As no one attended to the refrigerator in question the complainant issued notice. Technicians visited the complainant''s premises but did not repair the refrigerator. Hence the complainant was required to approach the learned Forum for redressal of his complaint.

No one appeared the learned Forum. No one filed reply to the complaint before the learned Forum. Finding that there was deficiency in service on the part of the first and second opponents the aforesaid order was passed.

AT the outset it might be noted that the opponent No. 2 company offered for replacement of the refrigerator in question with fresh one. In our considered opinion this offer would meet with the grievances voiced by the complainant. As a matter of fact, by virtue of the provision contained in Section 14 of the Consumer Protection Act, 1986 first appropriate direction, which can be issued in such cases, is to remove the defect or to replace the goods with new goods with similar description. This should be free from any defect. It is only in default of such direction that the price of the goods might be ordered to be refunded to the complainant. Price might be directed to be refunded if there are, facts and circumstances which would require such an order to be passed. In that view of the matter we propose to pass the following order: Learned Forum has not given any reason for award of compensation in the sum of Rs. 4,000/- against opponent No. 1, the dealer. Opponent No. 1 had already entrusted the matter to opponent No. 2 company after attending to the grievance of the complainant. It is a different matter that the opponent No. 1 has not filed any appeal, but the direction with regard to compensation in the sum of Rs. 4,000/- is without any material for that direction or without any reason in that respect. We propose to pass appropriate order of cost since this was a case of purchase and sale of refrigerator falling under Section 73 of the Contract Act in which case decision of the Apex Court in the case of Gaziabad Development Authority v. Union of India & Ors., reported in II (2000) CPJ 1 (SC)=IV (2000) SLT 654=2000 (6) SCC p.113 would be applicable and according to which no compensation on the head of mental agony and hardship was awardable.

WE, therefore, pass following order: Impugned order dated 23rd January, 2002 rendered by the learned Jamnagar District Consumer Disputes Redressal Forum in complaint Application No. 4/2000 is hereby modified as under: Opponent No. 2 Company (appellant herein) shall replace the refrigerator in question with a new refrigerator with fresh guarantee/warranty within six weeks from today after due intimation in writing to the complainant well in advance and pay cost quantified at Rs. 1,000/- to the complainant. Rest of the complaint will stand dismissed. Upon compliance of the aforesaid order the opponent No. 2 company i.e., the appellant will be at liberty to apply for withdrawal of the amount deposited in this Commission. This appeal is accordingly disposed of with no further order as to cost. Appeal disposed of.