VASUNDHRA, M/S. BLUE STAR LTD. vs SHRI BAL KISHAN GOYAL

THIS appeal under Sec. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) ("the Act" herein) is directed against the order dated 11.9.89 passed by the District Forum, Jaipur in complaint case No. 69 of 1989.

THE complainant-respondent filed a complaint under Sec. 12 of the Act regarding supply of defective water cooler 36-P 100 Model Blue Star, which was purchased vide Bill No. 497 dated 25.2.88 from opposite-party No. 1 appellant. THE price mentioned in the bill is Rs. 23,900 for the water cooler and Rs. 1,950/- for the voltage stabilizer. THE water cooler is said to have been installed at Platform No. 2. Sindhi Camp Bus Stand by the mechanics of the Company. It stopped working on 6.4.1988. A report of its poor performance was lodged with the Company on 9.4.88. No action was taken and so a reminder was sent on 26.4.88. Again, a complaint was lodged on 4.7.88 stating that the exhaust fan of the cooler was not working. It was repeated on 12.7.88 and 21.7.88. THE Company replaced the motor of the fan of the water cooler on 7.8.88. THE water cooler was, however, closed in September, 1988. It was restarted on 3.3.89, but its performance was not satisfactory. A complaint was lodged on 10.3.89. THE Company replaced the voltage stabilizer attached to it on 14.3.89. THEre was leakage of gas and exhaust fan was not working properly. A demand for replacement of the water cooler was made vide letter dated 11.3.89. THE Company declined to replace it and assured that some repairs under the guarantee obligations will be made. This was communicated vide letter dated 20.3.89. THE complaint was filed on 4.4.89 praying that legal action against the company for the replacement of the water cooler be taken so that the very object behind its installation, i.e. public service at large may be fulfilled. Photostat copies of the bill and letters were filed with the complaint The version of the case was filed on 5.7.89 resisting the complaint. It was submitted that the water cooler has no manufacturing defect and it was working properly. It was submitted that it is not used in accordance with the instructions. Reasons connected with the installation were mentioned to show as to why it was not working properly. It was submitted that whenever deficiencies were pointed out, they were removed. It was recorded in the order-sheet dated 17.7.89, as under: "The non-petitioner had sent a letter to the petitioner asking them to make some repairs in the room in which the water cooler is housed. On the last date of hearing we had agreed that the petitioners will have to pay an amount up to Rs. 2000/- and the repairs will be carried out by the non-petitioner. It has been agreed by both the sides today that an amount of Rs. 2000/- be taken from the petitioners and be kept by the learned counsel for the petitioner and the key of the room in which the water cooler is fixed may be given to the learned counsel for the non-petitioner for the repair of the water cooler within one week. If there is an expense of an amount more than Rs. 2000/-, then the same shall be borne by the non-petitioner. After repair of the water cooler it shall be the duty of the non-petitioner to run it in a proper order up to 2 months and then only the amount of Rs. 2000/- will be paid to them by the learned counsel for the petitioner to the non-petitioner and if the water cooler does not work properly it shall be the duty of the non-petitioner to replace the compressor and keep the water cooler in working order. Put up for further action on 18.7.89."

On the next day, i.e. 18.7.89. the District Forum passed the following order: "Lawyers of both the sides are present. The key of the room has been handed over to Shri Prem Surana. Advocate for non-petitioners. The amount of Rs. 2000/- is with the Advocate for the petitioners. The cooler is to be repaired in one week failing which the Forum will order for the repair of the cooler at the cost of the non-petitioners. Put up for further steps on 26.7.89."

On the hearing of 26.7.89, the District Forum again passed an interim order which reads as under: "Counsels for the petitioner and non-petitioners present. In this matter order was passed on the last date of hearing that the non-petitioners will get the room repaired in which houses the water cooler and will also repair the cooler at their own cost and that was to be completed by today. The learned counsel for the petitioner says that nothing has been done till today and the public is put in difficulty and inconvenience as the water is not being cooled. We have heard both the sides. Looking the attitude of the non-petitioner, we hereby order that the non-petitioner will change the water cooler with new cooler within next 3 days and compliance should be reported to this Forum on 31.7.89, failing which we shall pass further necessary orders in this matter."

An application was submitted by the opposite-parties on 31.7.89 praying that a direction be issued to the complainant that it may permit the opposite-parties to fit a compressor and also to effect necessary repairs so that persons may get cool water. A reply was filed by the complainant to the application opposing the application and praying that the opposite parties should be punished for their behaviour. The District Forum passed the order on 11.9.89. The material part of it is as under:- "Since the cooler is not working properly and although there is no affidavit of any party before us still it is fully established from the letter of the Depot Manager. Roadways, Jaipur that the cooler is not functioning properly as such we direct the non- petitioners either to change or repair the cooler within a fortnight and if the same is not done then the money of the petitioners which includes the price of the cooler as also money spent on construction of the room should be refunded and the plant should be removed immediately. The petitioners will also be entitled for 12% interest on the investment made by them in respect of the cooler as also the construction of room which shall be payable by the non-petitioner. In case the cooler cannot be repaired and/or the refund is not made within one month, then, the petitioners shall be entitled to execute this decree. The petition is allowed and is disposed of accordingly."

HENCE this appeal as aforesaid. We have heard Mr. Prem Surana, Advocate for the appellants and Mr. Kailash Chand Pareek, Advocate for the respondent and carefully considered the record. Before examining the appeal on merits, it may be mentioned that a letter dated 29.8.89 was sent by the Depot Manager, Central Bus Stand, Jaipur to the Convener, Water Cooler Committee, Jaipur Hardware Merchant Association, Jaipur that the cooler may be got repaired and at least 4 bibcocks may be fitted so that there may be adequate supply of water from the cooler.

AFTER the order, it appears that affidavits of Surjeet Singh (Senior Technician, M/s. Blue Star Limited, Jaipur), Narendra Kumar (Resident Executive), Govind, R.P. Singh Mahesh, Mancharan and K.K. Purohit were filed on 12.9.89. The affidavit of Surjit Singh shows that the compressor of the water cooler was replaced, it was inspected by him during the last 40 days and he found that it was functioning properly and was given "cold water". It was also inspected by him on 11th August afternoon and was found giving "cold water". The affidavit of Narendra Kumar, President Executive shows the reason as to why the water cooler was not functioning properly. The other affidavits reveal that the deponents have drunk water from the cooler which was "cold". Mr. Prem Surana, learned counsel for the appellants argued that the order of the District Forum is without jurisdiction inasmuch as it had no jurisdiction to entertain, hear and decide the complaint under the Act, for, the complainant is not a ''consumer'' as defined in Section 2(1)(d)(i) of the Act. In this connection, it was submitted that the water cooler was purchased for earning "good Will" and it was installed at Sindhi Camp Bus Stand for the use of the public which according to Mr. Surana is a ''commercial purpose''. This plea was not taken before the District Forum and by no stretch of imagination it can be said that it was installed after purchase for earning profits. The complainant installed it for the use of the public free of charge. The complainant has not obtained the water cooler for commercial purpose and so he is a consumer under Sec. 2(1)(d)(i) of the Act. The argument is devoid of force and it is rejected. Next, it was contended by the learned counsel for the appellants that the interim orders dated 17.7.89,18.7.89 and 26.7.89 and the impugned order are arbitrary and against Sec. 14(1) of the Act. He further submitted that the order dated 17.7.89 is in the nature of final order and so subsequent orders including the order under appeal are illegal and null and void. Learned counsel for the respondent has supported the order under appeal and urged that a direction for replacement of the water cooler, amongst others, has rightly been given by the District Forum. We have bestowed our most anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties.

THE water cooler was purchased on 25.2.88 and it was installed on 3.4.88. It started giving trouble from 6.4.88. THEre was a warranty for one year. As regards service, it is mentioned that the expert and prompt after-sale service is free during the warranty period at locations where Blue Star has its service centres. THEreafter, a nominally priced All-Risk service contract offers total protection from repairs and maintenance costs in the rare event of a break down. As regards nominal cooling capacity its capacity listed for a drop of 16.5C conforms to IS 1475. All this information is contained in a leaflet issued by Aquarius, Blue Star supplied by the learned counsel for the respondent and this has been placed on record.

SEC. 12 of the Sale of Goods Act, 1930 deals with Condition and Warranty. It is as under: - "12(1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition of a warranty. (2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. (3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. (4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract."

SEC. 13 of the aforesaid Act says when condition to be treated as warranty. It reads as under:- "13(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract repudiated. (2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, or where the contract is for specific goods the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect. (3) Nothing in this section shall affect the case of any condition or warranty fulfillment of which is excused by law by reason of impossibility or otherwise."

The complainant by his actions did not repudiate the contract. Sec. 16 deals with implied conditions as to quality or fitness. Sec 59 of the aforesaid Act provides remedy for breach of contract.

We are not happy with the directions which were made by the District Forum during the pendency of the complaint on 17.7.89,18.7.89 and 26.7.89. However, we do not want to pursue the matter further. The case of the complainant is that the water cooler has some manufacturing defects and so despite replacement of motor of fan and compressor (in pursuance of the Forum''s order) it has not been working satisfactorily. The District Forum has ordered for the change or repair of the water cooler within a fortnight and if the same is not done, then the price as also money spent on construction of the room should be refunded and the plant should be removed. Interest at the rate of 12% p.a. has also been ordered on the amounts. Warranty period expired on 2.4.89 (one year from the date of installation which is 3.4.88). Its repair was done and defective fan of the motor and compressor have also been replaced. The complainant is also required to follow the instructions for the use of the water cooler which according to the opposite parties are not observed by him. The appellants are directed to repair the cooler and replace the defective parts, if any, so that it may work properly for one year from the date of the compressor has been replaced. Its working will be checked every fortnight till the expiry of the period mentioned in this order so that it may be free from any defect and conform to the specifications. The complainant will extend co- operation to the opposite-parties in this regard. The complainant will ensure that the instructions for its use are observed so that causes enumerated by the opposite-parties for its not working properly do not recur. We direct that within a month from the date of the receipt of this order the opposite-parties will submit a report of some technical person to the State Commission stating that it is working properly after delivering a copy to the complainant. The other directions given by the District Forum are set aside.

THE appeal is allowed to the limited extent indicated above. The parties shall bear their respective costs. Appeal allowed.