S.K.AGGARWAL vs GODREJ GE APPLIANCE

BRIEF facts of the case giving rise to this appeal are that Mr. S.K. Aggarwal, complainant for short, purchased a frost free refrigerator from the opp. party on 26.6.94 for Rs. 16,625/-. the fridge carried warranty for one year and a service agreement for four years from the date of purchase. The complainant found that the food articles kept in the fridge got frozen. The complainant got legal notice dated 4.4.95 served both on the manufacturer as well as dealer who were ultimately arrayed as Opp. parties 1 & 2 respectively. The manufacturer advised the local dealer to do the needful by its letter dated 11.4.95 with copy to the complainant. A mechanic deputed by the Opp, parties visited the complainant on 25.4.95 and noted in the job card that the thermostat was defective and required replacement. He was, however, not allowed to replace the same. The Opp. party, through its Senior Service Executive, is stated to have written to the complainant vide his letter dated 19.5.95 bringing it on record that the Opp. parties mechanic offered to replace the thermostat but he was not allowed to do so and requesting the complainant to let him know when the mechanic could come for replacement of the thermostat. The complainant, however, insisted on either refund of the total .price paid by him alongwith 24% interest or replacement of the fridge by a new one. He filed a complaint before District Forum, which was contested.

THE plea of the Opp. parties was that there was no manufacturing defect, that the thermostat was a small part and the same could be easily replaced and the Opp. parties, in fact, offered to replace the same but the mechanic was prevented from doing so by the members of the family of the complainant. On a consideration of the material before it, the District Forum held that no deficiency in service had been established and, accordingly, dismissed the complaint. Aggrieved by the order, the complainant has preferred this appeal. We have heard Mr. S.S. Sindhi, Advocate for the appellant and Mr. S.S. Kumar, Advocate for the respondent and have perused the records.

The contention of Mr. Sindhi, learned Counsel for the appellant is that letter dated 19.5.95 filed in reply by the respondent, had not been received by the complainant and the same appeared to be fabricated one. Mr. Sindhi pointed out that whereas the complainant had taken pains to send a notice through Mr. S.K. Aggarwal, Advocate, dated 4.4.95 by registered post both to the manufacturer as well as the dealer, it was difficult to accept that the letter dated 19.5.95 had been sent by ordinary post. It was contended that the complainant was not interested in not allowing change of the thermostat and the plea put forward by the Opp. party was, therefore untenable.

ACCORDING to the learned Counsel, failure of the opposite party to remove the defects within a reasonable time, constituted deficiency in service. He relied on Amtrex Ambience Ltd. v. M/s. Alpha Radios & Anr. I (1996) CPJ 324 (NC). Mr. S.S. Kumar, on the other hand, contended that the sale of the fridge was accompanied by a warranty for a period of 12 months from the date of delivery for repair or replacement free of charge of any of the defective part/parts excluding light bulbs and glassware and four year service contract thereafter for the maintenance, repair or replacement of parts of components of the sealed system. He further submitted that the replacement of the fridge, as distinguished from replacement of any defective part or parts, was not covered by the warranty. If the whole machine was required to be replaced on account of defect of a small part, which can be easily repaired or replaced, it will be very hard for the manufacturer besides being unfair and unwarranted in terms of the agreement of warranty. Mr. Kumar invited our attention to two decisions of the National Commission in this point. In Mahindra & Mahindra Ltd. v. B.G. Thakur Desai & Anr. I (1993) CPJ 72 NC, it was laid down by the National Commission as under : "....If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the whole machinery without sufficient cause......"

AGAIN in Tata Engineering & Locomotive Co. Ltd. & Anr. v. M. Moosa, 1994 (2) CTJ 1046 (NC), the National Commission made the following observations : ".....If the defects occurring in any goods purchased. Section 14(1) of the Consumer Protection Act authorises the Forum to have the defects removed, even if there are numerous defects which can be rectified. It will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced."

Mr. Kumar further submitted that the complainant appears to have decided to press his claim for refund of the total price alongwith interest or for the replacement of the fridge by a new one and with that objective in view he did not allow the thermostat to be changed. He further submitted that the respondent took prompt steps to have the fridge inspected, find out the defect and offered to remove the defective thermostat without any appreciable delay and this could not possibly constitute deficiency in service. We find force in the contention of Mr. Kumar. The only defect brought on record was that of defective thermostat. This could be easily removed by replacing the thermostat and, there fore, no case was made out for replacement of the refrigerator as a whole. The complainant did not allege or establish that the fridge, as a whole, suffered from any manufacturing defect. In terms of the warranty, the defective part could be replaced and the same was offered to be replaced The complainant did not permit the defective thermostat to be changed. In these facts we are unable to hold that there was any deficiency in service. We, accordingly, find no merit in the appeal, which is dismissed. Not with standing the dismissal of the appeal, the respondent would remain bound by their obligations for the service contract for the relevant period. A copy of this order be conveyed to both the parties as well as District Forum-I. Appeal dismissed.