SHASHI RADIO COMPANY vs SUDESH SINGHAL

THIS appeal is against the order of the District Forum, Hisar whereby the appellants have been directed to refund rupees 10,468/- being the price of the defective refrigerator.

SMT. Sudesh Singhal, the complainant respondent had admittedly purchased a double door Kelvinator refrigerator of 300 litres capacity from the appellants for a sum of Rs. 10,018/- . A further sum of Rs. 450/- was also paid towards service charges for four years whilst guarantee period was of seven years. It was the grievance that the said refrigerator had the patent defects of being without original handles and absence of interior light and a defective upper lock. Despite repeated protestations, these were not rectified. What is more, in April, 1991, the refrigerator completely went out of order and the appellants denied to service or correct the same thus compelling the respondent to resort to a private machine on the payment of heavy charges. Further faults in the machine cropped up and the mechanic informed the respondent that the compressor of the refrigerator will have to be changed because it was smaller than the required capacity for a refrigerator of 300 Its. and the appellants had played a fraud with the unsuspecting consumer. In sum, the case was that a refrigerator of another brand was passed on as a Kelvinator and was so totally defective that it had failed to give satisfactory service from the very inception. A total relief in monetary tune of Rs. 14,188/- was claimed.

On notice being issued, the appellants in their written statement admitted the sale of the refrigerator to the claimant with the clarification that the guarantee period was of five and not of seven years. It was pleaded that a new handle, outer lock and interior light in the refrigerator were replaced by the appellants despite the fact that the manufacturer hardly allows such a concession. However, it was the plea that in fact the defective compressor had been replaced by the appellants immediately and they had incurred expenses for sending the same to the manufacturing company''s premises at Faridabad. It was denied that the compressor was below the capacity required for a 300 litres refrigerator. On these pleadings, the dismissal of the complaint was sought.

IN the reply filed by opposite party No. 2, M/s. Kelvinator of INdia, they firmly took up the plea that the appellant has not been their appointed dealer at all and therefore no liability could be foisted on them. The firm stand taken was that in fact the refrigerator purchased by the consumer was of the "Leonard" brand and therefore, the matter had been referred to the Tropicona Enterprise Ltd. who were apparently the wholesale dealers or distributors thereof. The respondent in the replication reiterated her stand. The District Forum on a consideration of the whole material before it concluded that the refrigerator sold to the consumer was not a Kelvinator one but of the "Leonard" brand and the appellant was therefore guilty of gross unfair trade practice bordering on fraud and cheating. Consequently, it granted the relief in the terms noticed at the very outset.

MR. Atul Lakhanpal faced with the uphill task of assailing the District Forum''s findings was forced to take up a somewhat technical plea. It was suggested that the Leonard, Kelvinator, Gem and Philco brands of refrigerators are being manufactured by the same concern and there was hardly any meaningful difference therein. It was therefore, the submission that in passing of a "Leonard" refrigerator as a "Kelvinator" one, the appellants were in no way guilty of any unfair trade practice. We are afraid that there is not even a modicum of merit in the aforesaid submissions. Herein, the firm case of the respondent was that she had purchased a Kelvinator refrigerator from the appellants and in para 1 of the written statement, this was in terms admitted. In the face of these pleadings it does not lie in the mouth of the appellants now that they were entitled to pass off a Leonard brand refrigerator as a Kelvinator one. This is more so when reference is made to the bill, where amongst the relevant brands the Kelvinator has been specifically tick-marked as having been sold to the respondent. It is a somewhat specious argument of Mr. Lakhanpal that the appellant in the complaint had mentioned the Kelvinator make but not the Kelvinator brand. This has only to be noticed and rejected is a hyper-technicality without much substance, and particularly so in the context of the admission made in para 1 of the written statement. Herein, it has now been established that at the material time of the sale, the appellants were not the authorised agents for the sale of the Kelvinator refrigerators. This is patently so from the firm stand taken by M/s. Kelvinator of India as opposite party No. 2, which was neither rebutted before the District forum nor challenged before us. This being so, the appellants had obviously enough passed of a Leonard brand of refrigerator to the respondent as a Kelvinator one and attempted to conceal the identity by non-supply of handles etc. It is further not in dispute that the Learned brand of refrigerator is being marketed through another organisation, Topicona Enterprises. The respondent''s stand that from day one, the refrigerator had not worked satisfactorily and compressor thereof was not of the required capacity is borne out by the appellants'' own admission that the defective compressor thereof was replaced by them immediately. In the light of these established facts, the inference which the District Forum drew is rested on a sure foundation and merits no interference.

IN the light of the aforesaid discussion, this appeal is without merit and is hereby dismissed with costs which are assessed at a modest sum of Rs. 300/- only. Appeal dismissed with costs.