MOTI DHARANI vs GODREJ G.E.APPLIANCES LTD.

THIS is an appeal against the judgment and order dated 10.9.1998 passed by District Consumer Forum-II, Lucknow in Complaint Case No. 150/1997.

THE facts of the case stated in brief are that the complainant purchased a Godrej 165 litre fridge on 15.3.1996. In October, 1996 the back wall of the fridge was found to have been bitten by rats who have made a hole in the fridge and also destroyed a portion of the wall. When the complainant examined the same, he found that the wall was not made of any metal but of thermocol. THE complainant several times requested the opposite party to get the fridge repaired but no attention was paid to it. Thereafter on 9.11.1996 a notice was sent to the Godrej, opposite party No. 1, who by letter dated 23.12.1996 replied that the technician has not been permitted to repair the fridge. Thereafter on 13.1.1997 the complainant issued a notice to the opposite party demanding for replacement of the fridge by Cold Gold model, if there is any difference in the price between the two, then the same will be paid by him. The appellant also refused this request and hence the complainant filed this complaint for refund of the amount deposited by him alongwith 18% per annum interest and Rs. 10,000/- as damages.

M/s. Godrej, the opposite party, alleged in the written version that the back wall is not of thermocol, but it is made of insulation material puff and there is an aluminium foil over it. It is a new design and many fridges have been sold with the above back wall. It is further alleged that the opposite party is prepared to replace the cabinet of the fridge. The complainant refused to get the same repaired when the mechanic was sent. It is further alleged that in all the fridges upto this time from 1981 onwards this type of wall has been prepared on the back side. It is also alleged that the opposite party has not adopted any unfair trade practice.

LEARNED District Forum, after considering the case of the parties, directed opposite parties to replace the cabinet within a period of one month failing which the opposite party will have to pay Rs. 25/- per day as damages. Aggrieved against this order, the complainant has come in appeal and has challenged the correctness of the order passed by the District Forum.

WE have heard the learned Counsel for the parties and have perused the evidence on record. Learned Counsel for the appellant has argued that the appellant has purchased a 165 litre Godrej refrigerator with one year guarantee. It has further been alleged that when the complainant observed the fridge in October, 1996 he found that there is a hole in the back wall of the fridge. Thereafter the appellant tried hard to get the fridge changed but nothing was done by the opposite party. Learned Counsel for the opposite party has alleged that since 1981 the Company has made models of this type with the back wall of thermocol and 1 mm. thick foil of aluminium and there has been no complaint in the fridge. According to the learned Counsel for the opposite party the back wall has been specially prepared so that it may reflect the heat which is generated by the fridge and the greater efficiency is achieved by this newly adopted technique of back wall. On a query made by the Commission as to whether the other models of the fridge are also being manufactured with the same specifications with which the model in question has been prepared, the reply was that this technique was only adopted in this model because it is a low cost model and it has not been adopted in any other models. It is very strange that a superior technology which has been developed by the opposite party by making the back wall of thermocol with 1 mm. aluminium foil, has not been adopted in other fridges especialy when it is argued that by adopting this new technology, the heat generated by the fridge is dissipated very efficiently than the walls which are made of pure steel. There is no reason as to why this technology should not have been adopted in other fridges. It is common knowledge that the back wall of the fridge is also of the same material of which the side walls of the fridge are made. Moreover, this argument of the learned Counsel does not carry weight as according to the complainant the back wall was also painted in same colour in which the other sides were painted, namely by the same colour and it was impossible to detect that there is no steel sheet on the back side of the fridge. It may be mentioned that the cooling coils which are on the back side of the fridge, dissipate heat in the environmental atmosphere and at times the black sheet is also fixed alongwith the cooling coil to increase the area of dissipation heat generated inside the fridge. The back wall has no part to play for dissipation of heat. Therefore, this argument of the learned Counsel that the back wall is made of aluminium foil shall dissipate the heat more effectively cannot be accepted even for a moment. According to the learned Counsel the puff material is a latest technology on account of which the construction of the back wall of the fridge was made of 1 mm. thick aluminium foil. The material which is a puff is not used for making of side wall or the back wall of the fridge. It is an insulating material which is now being used in the fridge instead of glass wool which was previously being used. The glass wool is not so effective as an insulating material as puff is. Moreover a thin layer of puff is a much better insulation than cotton wool with the same thickness. Using of puff also saves the space which is required for insulation purposes, thus increasing the capacity.

GODREJ, which is manufacturing fridge from a long time is considered by the public at large as one of the premier companies and a reputed one. Therefore, when a person purchases goods of a particular brand name, it goes by its reputation and the quality of the product which is offered is of a particular standard. When such a company behaves in a fashion in which it has behaved in the present case by not providing a steel sheet on the back side of the fridge but only provided an aluminium foil of 1 mm. thickness, it amounts to cheating of the public at large. It had never disclosed this fact to the public at large or to the person who purchased the same at the time of purchase that this particular model does not have a steel metal on the back side of the fridge as is provided in other models, but only it has 1 mm. thick aluminium foil.

THE next argument of the learned Counsel for the opposite party is that it is not an unfair trade practice to use 1 mm. thick layer of aluminium foil as a back wall of fridge. We have before us the Owner''s Manual as well as Instruction Leaflet which is given by the opposite party when the fridge is sold. None of these booklets informs the owner that the back wall of the fridge is not made of steel but is made of only 1 mm. thick aluminium foil. Whenever a person purchases a fridge he knows that all the four walls of the fridge are made of iron sheet. He never expects that the back wall would have been made of 1 mm. thick aluminium foil which is stuck over the puff. If this specially prepared wall was used in this model, then it should have been indicated or told to the customer at the time of selling the fridge. As we find that this material has not been provided in any of the booklets, therefore, the common man will think that all the walls of the fridge are made of iron material. "Unfair Trade Practice" has been defined in Section 2(r) of Consumer Protection Act which reads as under : ''Unfair trade practice'' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely : (1) the practice of making any statement, whether orally or in writing or by visible representation which,- (i) false represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

xxx xxx xxx" It has also been said in the earlier part of the judgment that on a casual look at the fridge, nobody can judge that the back wall of the fridge has not been made of iron sheet but is made of 1 mm. thick aluminium foil. This fact could have been disclosed by the opposite party especially when this technology has not been adopted in any of the fridges and in common knowledge of that the fridges are made of iron steel. Therefore, a deceptive practice was adopted by the opposite party that the goods are of a particular standard and quality. Thus we find that the opposite party is also guilty of adopting unfair trade practice.

Thus we find that the learned District Forum has rightly held that there was a deficiency in service on behalf of the opposite party. When it was found that there was deficiency on the part of the opposite party and there was also unfair trade practice, then it should have ordered for refund of the entire amount which has been paid by the complainant to the opposite party alongwith interest. In such cases it should not have directed for replacement of the fridge because the fridge of the same model will also be of the same type. The cabinet also cannot be changed because when the cabinet is also made of the same type it cannot be changed by the opposite party. Therefore, the Godrej G.E. Appliances could only be directed to refund the entire cost of the fridge to the complainant.

IT has further been argued by the learned Counsel for the opposite party that the appellant is not a consumer because the fridge was not used at the residence, but it was used at the business premises. We are not impressed with this argument. The complainant has used the fridge for storing eatables. Whether the eatables are stocked at residence or in the shop, it hardly matters. The fridge is not being used for commercial purposes. Moreover during the warranty period the opposite party is bound to replace the fridge if any defect is found in the fridge, even though it was purchased for commercial purposes. Thus from any angle we find that the complaint deserves to be decreed which has been rightly decreed by the learned District Forum. Thus the appeal is liable to be allowed and the opposite party is directed to refund the entire amount deposited by the complainant alongwith 18% per annum interest. The learned District Forum has directed for payment of Rs. 25/- per day till the cabinet is replaced. However, we are substituting this order for paying a consolidated amount as compensation of Rs. 5,000/-. Order The appeal is allowed. The judgment and order of the learned District Forum are set aside and the opposite party is directed to refund the entire amount paid as price of the fridge alongwith 18% per annum interest from the date of payment of price the amount till the date of payment to complainant. A sum of Rs. 5,000/- is also directed to be paid to the complainant. The cost of this appeal amounting to Rs. 2,000/- shall also be paid by the opposite party to the complainant.

LET compliance of the order be made within a period of two months from the date of this order. Let copy as per rules be made available to the parties. Appeal allowed with costs.