Kelvinator of India Ltd. vs SURINDER PAL GARG

SHORT question but of great significance in consumer jurisdiction arises in this appeal filed by well known Company dealing in manufacture of refrigerators of make ''Kelvinator'', as to whether manufacturer of goods can be absolved of the obligations by unilateral act of selling the entire goods to sole selling agent who further markets such goods through dealers providing warranty for defects in the goods.

THE appellant, M/s. Kelvinator India Ltd. with registered office at New Delhi is a Company incorporated under the Companies Act. It manufactures refrigerators of ''Kelvinator'' make in its factory. One such refrigerator was purchased by the complainant S.P. Garg of Village Munak, District Sangrur from M/s. Jai Durga Electronics Company, Munak for a sum of Rs. 5,500/-in March, 1989. A sum of Rs. 450/- was also paid as service charges. THE refrigerator after working for two months abruptly stopped. A report was made to the dealer M/s. Jai Durga Electronics Company. Some repairs were done to the refrigerator and it started working. In April, 1990, it again stopped working. THE old defects continued. THE complaint made to the dealer did not bring any fruit. THE fridge was not replaced or repaired. THE complainant S.P. Garg thus, moved the District Forum, Sangrur for replacement of the refrigerator or refund of the amount paid with interest @ 18% p.a. He also claimed Rs. 2,000/-compensation on account of mental tension and agony, apart from litigation charges. He impleaded the manufacturer, the appellant and the dealer M/s; Jai Durga Electronics Company as the opposite parties. Both the opposite parties filed separate written statements. Opposite party No. 1 the appellant took up the plea that the refrigerators manufactured by them were being sold to whole sale buyers on principle to principle basis. THE appellant had not appointed any dealer. Jai Durga Electronics Company was not their dealer. Whole sale buyer was responsible to provide after sale service to the consumers, who had given warranty to the consumers. On receipt of the complaint, the appellant used to forward the same to the whole sale buyer, who was attending to the same. THE whole sale buyer''s name and address was also given in para 5 of the reply as Expo Machinery Ltd., New Delhi. THE notice received from the District Forum was forwarded to Expo Machinery, Ltd. with the request to attend the complaint to the entire satisfaction of the complainant. THEre was no privity of contract between the complainant and the appellant. Thus, the complainant was not entitled to any relief from the appellant. THE other opposite party M/s. Jai Durga Electronics Company in their written statement admitted the fact of sale of refrigerator to the complainant and further pleaded that their Company was a dealer of Expo Machinery Ltd. for sale of Kelvinator refrigerator at Munak. One year warranty was given from the date of purchase for repair and service and six years for the sealed components. THE contract of service was with Expo Machinery Ltd. THE warranty period expired on March 10, 1990. THE complaint was liable to be dismissed as Expo Machinery Ltd. was not joined as a party. It was denied that the refrigerator stopped functioning after two months. It was pleaded that due to mishandling on the part of the complainant, the gas leaked which was refilled without any charges. No other complaint was made. It was denied that the refrigerator was not functioning. In August, 1992, the complainant orally asserted that the refrigerator be replaced. It is about 3 years from its purchase. THE request was not acceded to. On visit to the house of the complainant in August, 1992, the refrigerator could not be inspected as he was not allowed to do so. He undertook to remove the defect if any in the functioning of the refrigerator. On receiving the evidence on affidavits and documents, the impugned order was passed by the District Forum on May 27, 1996 giving directions to the appellant to pay a sum of Rs. 5.300/-with 15% p.a. interest on or before August 21,1996 and the complainant was bound to hand over the fridge to opposite party No. 2, the dealer. THE grant of interest referred to above covered the amount of compensation for mental agony etc. A sum of Rs. 550/-was ordered to be paid as litigation expenses. Learned Counsel for the appellant has argued that since the name of the Company, Expo Machinery Ltd. was disclosed at the initial stage of the proceedings, said Company should have been made a party as it was the said Company who had given warranty against sealed unit of the refrigerator and had entered into service contract. This contention cannot be accepted for the simple reason that the complainant wants relief against opposite parties impleaded and no third party can be impleaded as opposite party against the wishes of the complainant. The complaint as drafted is to be disposed of following the procedure prescribed under Sections 13 and 14 of the Consumer Protection Act.

Learned Counsel for the appellant argued that since there was no defect in the functioning of the refrigerator, finding of the District Forum in this respect is liable to be set aside for want of evidence. This contention by the appellant cannot be permitted to be raised as the appellant in the written statement filed has not taken up any such plea. Rather the stand taken up by the appellant was that the complaint has been referred to Expo Machinery Ltd. for making the refrigerator functional to the satisfaction of the complainant. During the time the complaint remained pending before the District Forum or the appeal in this Commission, no effort has been made by the appellant to know as to what action was taken by Expo Machinery Ltd. It has been brought to our notice that in compliance to the order of the District Forum, the refrigerator has already been delivered to the dealer. Even on behalf of the dealer, it has not been pointed out as to whether the refrigerator is properly functioning or is a dead machine. The argument of learned Counsel for the appellant that it was the duty of the District Forum to send the refrigerator for test to any laboratory again cannot be entertained in appeal as no basis for the same were established before the District Forum. No application was moved by any of the parties before the District Forum to get the refrigerator inspected by any expert much less by any laboratory. No doubt, it is for the complainant to prove defect found in the goods or deficiency in rendering service. For that the District Forum has placed reliance on the affidavit of the complainant himself and we find no ground to differ therewith.

COMING to the main question as formulated above as to whether any relief can be granted under Section 14(1) of the Consumer Protection Act against manufacturer of the goods if some defect therein is found. Reference is made to the provisions of the Consumer Protection Act, under Section 2(1)(d) defines the Consumer. The complainant obviously is a consumer as he had purchased the refrigerator on payment of the price in March, 1989. It is also an admitted fact that the refrigerator was manufactured by the appellant. Company. The word opposite party has not been defined in the Act. However, the complaint is required to be filed against the opposite party against whom the relief is claimed. Section 12 of the Act gives a right to the complainant, consumer with respect to goods sold to approach the District Forum concerned for the relief. Section 13(1)(a) cast upon a duty on the District Forum to send copy of the complaint to the opposite party mentioned in the complaint, directing him to give his version and thereafter to follow the procedure prescribed therein. It is only after both the parties have been allowed opportunity of producing their version and evidence that the District Forum is required to record a finding of defect in the goods sold or deficiency in the service rendered and it is thereafter that one or more of the reliefs contemplated under Section (14)(i) can be granted by the FORA established under the Act, giving directions to the opposite party. At this stage, it maybe observed that such relief as contemplated under Section 14 (1) of the Act can be granted against the seller of the goods as well as manufacturer of the goods. Word ''Manufacturer'' has been defined under Section 2(j) of the Act. The appellant on the admitted facts is the manufacturer of the refrigerator, which was sold to the complainant. The explanation added to the definition of manufacturer extends the meaning of the manufacturer to cover the branch office of the manufacturer also where parts of the unit are manufactured or assembled or sold or distributed by such branch office. For the purpose of the Consumer Protection Act, the Expo Machinery Ltd. as well as the dealer would fall under the definition of manufacturer of the Kelvinator refrigerator. The Consumer Protection Act does not exclude actual manufacturer from the definition of manufacturer, who decides to sell the goods manufactured to one of the sole selling Company. If this is allowed, the very purpose and object of Consumer Protection Act would be frustrated as the complainants would not get the benefits of the provisions of the Act, or the remedies made available to them. This argument if examined to the extreme, it may be observed that by putting forth a bankrupt sole selling agent, who would give warranties and guarantees against manufactured articles and in case of defect found or deficiency in rendering service, would be unable to obey the directions of the FORA, leaving the complainants in lurch. The purpose of the Consumer Protection Act is to protect the rights of the consumer and this can be done if they are Held entitled to the relief against the appropriate party/ parties including the manufacturer of the defective goods. It would amount to unfair trade practiceThe manufacturer of such articles publish advertisement in the Newspapers luring the public to purchase their products with warranties and guarantees and brand marks and at the receiving end to take shelter behind legal technicalities. This cannot be permitted to be done if in true spirits, the provisions of the Act are to be implemented. The appellant, Kelvinator Company is Held fully responsible for the defects found in refrigerator manufactured by them and sold to the complainant. For the reasons recorded above, this appeal fails and is dismissed with costs of Rs. 5,000/to be paid by the appellant to the complainant, respondent. Order of the District Forum is affirmed. Appeal dismissed with costs.