SHITAL KUMER SAINI vs SATVIR SINGH

THIS is an appeal directed against the order passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as the District Forum) Raipur in Complaint No. 279/2001 dismissing the complaint.

APPELLANT-complainant''s grievance in brief is that he purchased one Commander brand K-20 mode 2 HP air compressor from the respondent/O.P. on 23.8.2000 for Rs. 13,100/- with one year warranty and on the understanding that if the compressor does not give satisfactory service it will be exchanged by another 3 HP compressor on a further payment of Rs. 4,200/-. The compressor developed defects and the oil seal and bearing had to be replaced within 3 months. Therefore he obtained another 3 HP compressor on a further payment of Rs. 5,050/- in exchange. The second machine also did not give satisfactory service and had to be repaired several times. An amount of Rs. 21,301/- has been claimed as cost of repairs and other expenses. Contention of the complainant is supported by his affidavit and bills.

The respondent/O.P. in reply has admitted having sold one 2 HP compressor to the complainant and that the compressor was brought to him for repairs. On inspection it was found that the compressor was run without lubricant oil and, therefore, was damaged. It is also admitted that the second compressor was given in exchange on credit of Rs. 4,000/- the difference in price. It is also specifically stated that no warranty for the machine was given and prayed for dismissal of the complaint.

DISTRICT Forum has dismissed the complaint on the ground that no warranty was given and the contentions regarding deficiency are not sufficiently substantiated. Appellant has also filed an application under Order 41 Rule 27 seeking permission to file an affidavit by one Manoj Shah mechanical engineer in support of his contentions that it is necessary for disposal of the appeal. The respondent has opposed the said application and prayed that the permission be refused. The questions arising in the present appeal is : (1) Whether the second machine was defective and whether in the absence of a warranty and whether the complainant is entitled to any relief for defects developed?

IN the present complaint as averred in Para 8 it is averred that the O.P./respondent assured that the compressor will serve his purpose. The O.P. is in the business of trading of Compressors. Having earlier commercial transactions with the complainant it appears that it was known to the O.P. that the complainant is running a factory and was aware of the nature of his requirement. No warranty of any sort appears to have been provided to the complainant as regards the 2 HP compressor or the second 3 HP compressor given in exchange. IN the absence of any warranty, in our opinion Section 16(1) and (2) of the Sale of Goods Act, 1930 which reads as under is attracted. The section reads as under : 16. Implies conditions as to quality or fitness : Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows : (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller''s skill or judgment and the goods are of a description which it is in the course of the seller''s business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that, in the case of a contract for sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.

(2) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be merchantable quality : Provided that, if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.

(3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

(4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

In view of the above provisions the complainant is entitled to the benefits of an implied condition that the goods shall be reasonably fit for the purpose for which they were purchased. Admittedly the compressor in question was not a specified article under patent or trade name and as such is not covered by the exception to Sub-section (1) of Section 16. As regards the defects in the compressor the complainant has averred that several defects developed in the 3 HP compressor on 6.2.2001 and again 9.3.2001 and he had to spend considerable amount on repairs. Complainant has also sought permission to file a technical expert opinion under Order 41 Rule 27 in support of his contention. Since the expert opinion appears necessary to clarify the point whether the compressor machine was suffering from any defects it appears just and proper to allow the same.

AS per the technical opinion supported by affidavit of Manoj Shah, an experienced Mechanical Engineeer the compressor bears the brand name Commander but does disclose the place of production. He has pointed out several defects in design and quality such as the metal used for casting is inferior, and both the cylinders are not of identical dimensions.

IN view of the above report and the material on record in our opinion the compressor supplied to the complainant was defective and the O.P. has committed deficiency in not providing service regarding the repair or replacement of the same. The O.P. has admitted having provided the 3 HP compressor to the complainant in page 2 of the reply without any warranty. The defence that the compressor was damaged due to mishandling is difficult to believe since the complainant has nothing to gain by doing so and he himself suffered loss due to breakdown of the compressor.

In view of the above in our opinion the appeal deserves to be allowed and the impugned order cannot be maintained and is set aside. Respondent/O.P. is directed to pay Rs. 4,000/- as compensation for the inconvenience suffered and the loss sustained. The above amount shall be payable within 2 months from the date of order failing which it will attract simple interest at the rate of nine per cent per annum. Appeal allowed.