VIDEOCON INTERNATIONAL LIMITED vs VIVEK K.ARORA

THESE are two appeals filed by the complainant and the O.Ps. against order dated 3.9.2001 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-I) in Complaint Case No. 552 of 1998. The District Forum-I decided the complaint case and issued direction to the O.Ps., namely, M/s. Videocon International Ltd., Aurangabad and Branch Office of Videocon International Ltd., Chandigarh and M/s. Surinder Vidconic Private Ltd., Chandigarh, to replace refrigerator purchased by the complainant by a new refrigerator without any further charges. The District Forum-I also issued a direction to the O.Ps. to pay a sum of Rs. 1,000/- to the complainant, who paid the said amount to an engineer for examining the refrigerator.

UNDISPUTEDLY, the complainant, Sh. Vivek K. Arora purchased refrigerator of 280 litres capacity, manufactured by O.P., M/s. Videocon International Ltd. for a sum of Rs. 16,000/- on 10.9.1996. The price of the refrigerator was Rs. 18,000/- but a rebate of Rs. 2,000/- was allowed to the complainant. The said refrigerator had defects and was not functioning properly. The complainant approached the O.Ps. with his grievance and the refrigerator was replaced by the O.P. Company, M/s. Videocon International Ltd. The replaced refrigerator also was a defective piece and the same was once again replaced by another refrigerator which also had defects in it and consequently in the third time, a new refrigerator of the same capacity was replaced. The complainant Shri Vivek Kumar Arora was, however, not satisfied with the performance of the refrigerator which was replaced for the third time and he approached the O.Ps. and told them about the refrigerator being defective. The O.Ps. gave another service refrigerator of capacity of 165 litres to the complainant, which was used by the complainant since 23rd August, 1997. The complainant was since dissatisfied with the refrigerator, which had been replaced for the one purchased by him of the capacity of 280 litres, filed the complaint case aforesaid and sought refund of the price i.e. Rs. 16,000/- paid by him along with interest @ 24% p.a. w.e.f. 10.9.1996 till its payment. He also claimed damages to the tune of Rs. 25,000/- for suffering mental agony and pain. The complainant also claimed a sum of Rs. 50,000/- on account of loss of professional work of not only himself but of his wife as well. A sum of Rs. 5,000/- was claimed on account of pursuing the complaint with the O.Ps. and towards costs of waste of material in the refrigerator. The costs of the complaint were also claimed by the complainant. O.P. Nos. 1 and 2 filed written statement and alleged that the complaint was baseless and a flagrant abuse of process of law to harass and blackmail the answering O.Ps. and as such it was liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 (for short to be referred as the C.P. Act). It was, however, admitted that the refrigerator manufactured by the O.P. Nos. 1 and 2 was purchased by the complainant and the same was reported to be defective and replaced thrice only with a view to save the goodwill of the Company though the refrigerators supplied to the complainant were not having any manufacturing defect. Regarding the supply of the service refrigerator, it was contended that the same was done in an effort to psychologically satisfy the complainant and also in an endeavour of maintaining harmonious relations, which was found to be in perfect working condition. The allegation of goods being defective was denied. It was, however, admitted that O.P. 3, M/s. Surinder Vidconic Pvt. Ltd. was the authorized dealer/distributor of O.P. Nos. 1 and 2.

In the rejoinder filed by the complainant to the replies filed by O.P. Nos. 1 and 2, the complainant denied that the complaint was filed with a view to harass and blackmail the O.P. Nos. 1 and 2. The averments made in the written statement contrary to his case set up in the complaint case were denied and the averments made in the complaint case were reiterated. O.P. No. 3 did not file any reply to the complaint case.

DURING the pendency of the complaint case, O.P. Nos. 1 and 2 deputed Mr. Chandra Kant Thakur, Senior Officer (Service) on behalf of M/s. Videocon International Ltd. for inspection of refrigerator set for the case. Mr. Chandra Kant Thakur, as per certificate dated 12.12.2000 issued by the O.P. Nos. 1 and 2 was a diploma holder in air-conditioning and refrigeration and was an employee of M/s. Videocon International Ltd. There is a report of joint inspection dated 30.3.2001 placed on record showing that Videocon refrigerator of the complainant, Sh. Vivek Kumar Arora, which was lying at Videocon Service Centre was checked at Videocon Workshop vide Job No. H 139/30.8.1997 in the presence of Sh. Vivek Kumar Arora on 29.3.2001. At the time of conducting joint inspection, it was observed that the cooling temperature was satisfactory as per normal condition, the freezer compartment temperature showed minus 12 0C. within 30 minutes of switching on the refrigerator, partial freezer temperature showed plus 3 0C., whereas vegetable apartment temperature showed plus 4 0C. It was mentioned that during checking of the refrigerator (the left side of compressor) the charging line got damaged created by customer himself, which is still in reparable condition. It was also informed that a service unit had already been provided to the customer from day one when O.P. Nos. 1 and 2 received the refrigerator at the workshop and asked the complainant to take his refrigerator but they got no response. Photo copy of the Job Sheet was attached with the report and it showed the description of model as C-30 Sr. No. 16184. DURING the joint checking, the compressor bulb, gas chamber, service filter were replaced. It appears that the complainant got the refrigerator examined from Mr. Rahul Nagpal, who is qualified from ITI and refrigeration and air-conditioning and having past experience of four years in the field. He inspected the Videocon refrigerator Model No. C-30 CH on 29.3.2001, under the instructions of the District Forum-I and reported that he was shown a refrigerator bearing Model No. VNR-C30-CH with grey colour two doors and a basket (triple doors) 280 litres capacity bearing Sr. No. 0016184. He further mentioned that the complainant had bought refrigerator with Sr. No. 0012745 vide Bill No. 6568 dated 10.9.1996 and that was replaced with another refrigerator bearing Sr. No. 18254 vide Delivery Challan No. 137 dated 19.12.1996 and subsequently with another refrigerator bearing Sr. No. 27808 vide Delivery Challan No. 005 dated 14.8.1997. Having noticed these details, Mr. Nagpal reported that the Sr. No. did not match with the Sr. No. of the refrigerator produced before him for verification. He, however, checked the refrigerator, which was produced before him and observed that the cooling would further decrease if the refrigerator was loaded and kept in normal use and opened and closed as done in a normal household. The day''s temperature was 17 0C. The atmosphere was cool, cloudy and rainy. The efficiency would be effective negatively if the atmospheric temperature of acute summer days is considered and the refrigerator is put to use in the summer conditions. He also mentioned about perusing the Job Card No. 896 dated 24.11.2000 issued by M/s. Videocon International Ltd. and found that the refrigerator was repaired on 24.11.2000 involving repair of compressor, replacement of bulb, repair of filter charging of gas etc. In the end Mr. Nagpal opined that during peak summer season, the cooling should be reverified to confirm that the cooling is deteriorated drastically than that is required under normal weather conditions, resulting into non-preservation of food stuff and would also lead to little, or no ice formation in freezer portion. A perusal of the impugned order show that the District Forum-I in order to patch-up the matter asked O.Ps. as to whether they were willing to give new refrigerator to the complainant and they replied that the old model was not available and there is another model of 290 litres priced at Rs. 18,990/- and they asked the payment of the difference in price of the previous refrigerator and that of the new one having model of 290 litres. The said offer of the O.Ps. was, however, not accepted by the District Forum-I and the District Forum-I directed the O.Ps. to replace the previous frieze by a new one without any further charges. Besides this, a sum of Rs. 1,000/- was directed to be paid to the complainant as charges of the engineer.

THE complainant as well as the O.P. Nos. 1 and 2, both felt aggrieved against the order of the District Forum-I. THE complainant, Sh. Vivek Kumar Arora has filed Appeal No. 341 of 2001 against the impugned order while M/s. Videocon International Ltd. filed Appeal No. 352 of 2001. Both the appeals are directed against impugned order of the District Forum-I passed in the complaint case and are consequently decided by this common order. Notice of both the appeals were accepted by the contesting parties. THE record of the complaint case was summoned from the District Forum-I. We have heard the learned Counsel Mr. Sanjay Judge, Advocate appearing for the appellants, M/s. Videocon International Ltd. as well as Mr. Ramnik Gupta, Advocate for the respondent/complainant. None appeared on behalf of O.P. No. 3, M/s. Surinder Vidconic Pvt. Ltd. Mr. Sanjay Judge, Advocate appearing for the appellants/O.P. Nos. 1 and 2 contended that the District Forum-I committed error in directing the O.Ps./appellants to replace a new refrigerator of larger capacity of 290 litres and value of Rs. 18,990/- which is more than the price of the refrigerator purchased by the complainant, without going into the merits of the case and without determining any fault or deficiency on the part of O.P. Nos. 1 and 2. The complainant had managed, it was contended to get his refrigerator replaced thrice but still he was dissatisfied and he persisted with his grievance of replacement or refund of the amount. It was contended that the complainant had not come to the District Forum-I with clean hands and has tried to take undue advantage by concocting baseless, false and exaggerated story.

MR. Ramnik Gupta, Advocate appearing for the complainant, on the other hand contended that the District Forum-I had gravely erred in directing the O.P. Nos. 1 and 2 to replace the refrigerator by another refrigerator of 290 litres capacity without considering the fact that the offer of the O.P. Nos. 1 and 2, if any, had not even been put to the complainant and the complainant at no stage accepted the offer and agreed to have the replacement by the new model of the refrigerator manufactured by M/s. Videocon International Ltd. even of higher capacity of 290 litres. MR. Ramnik Gupta, Advocate urged that the District Forum-I grievously erred in not taking into consideration that within a short span of six months, the refrigerator purchased by the complainant was replaced thrice by the same model and capacity and still the refrigerator did not provide satisfactory service to the complainant and the same was found to be defective and taken back by the O.P. Nos. 1 and 2, who supplied a service refrigerator of 175 litres capacity to the complainant. It was further contended that the O.P. Nos. 1 and 2, the manufacturing Company, as a matter of fact, has withdrawn the refrigerators of the said model and capacity of 280 litres from the market as the same was not rendering due service and was not acceptable to the consumers.

AFTER carefully going through the impugned order, we find that the District Forum-I has not considered at all the merits of the respective contentions of the respective cases set up by the complainant and the O.P. Nos. 1 and 2. The District Forum-I without entering into the merits of the case and with a view to patch-up the matter, as a matter of fact, passed an order, which was not acceptable to either the complainant or the O.P. Nos. 1 and 2. The complainant came to the District Forum-I with a specific case of the refrigerator purchased by him being defective and not rendering due service as promised and he wanted refund of the price paid by him together with interest and damages for mental harassment and agony, etc. In the complaint, the complainant never prayed for replacement of the refrigerator manufactured and supplied by the O.P. Nos. 1 and 2. Likewise, the O.P. Nos. 1 and 2 never took a stand in the written statement that they would supply refrigerator of another model and of different capacity to the complainant. There is nothing on record to show that O.P. Nos. 1 and 2 were willing to accept the offer, which was as a matter of fact proposed by the District Forum-I to the O.P. Nos. 1 and 2 with a view to patch-up the matter. In our considered view, the District Forum-I is not required under the provisions of the C.P. Act to patch-up the matter and instead the District Forum-I is required to consider and decide the case of the complainant as brought by him and in case he succeeds in proving his averments made in the complaint, appropriate relief is to be granted to him and in case he fails to prove his allegations, the complaint is to be dismissed. The District Forum-I cannot coin a third case for the parties which was never set up either by the complainant in the complaint case or by the O.P. Nos. 1 and 2 in their written statement. Since the complaint case is now before this Commission in appeal, we deem it appropriate, to adjudicate the complaint case ourselves rather than remanding the complaint case to the District Forum-I for decision on merit of the case. The evidence led by the complainant, which is in the shape of his own affidavit as well as the affidavit of his wife and copies of the bill purchasing the refrigerator and copies of the documents showing subsequent replacement leave no room for doubt that the refrigerator manufactured by O.P. Nos. 1 and 2 and bought by the complainant was defective and replaced more than once and still the lastly replaced refrigerator was not found functioning properly. It is also not disputed that the refrigerator, which was supplied for the third time was taken back on 23rd August, 1997 vide Annexure-E bearing Challan No. 015, which is in the name of the complainant. It has been specifically mentioned that the refrigerator be given to the bearer of this challan for replacement purpose only. The complainant was, thus, fed up with the refrigerator manufactured by O.P. Nos. 1 and 2 and all the model for capacity referred to above and he asked for the refund of the price paid for the refrigerator. The O.Ps. have not disputed the fact that the refrigerator bought by the complainant was replaced trice and eventually a service refrigerator of the capacity of 175 litres was given to the complainant for the period during which the O.Ps. took decision regarding the replacement of a refrigerator of the same model, make and capacity. It is also clear from the evidence on record that the refrigerator which was got examined by the own employee of O.P. Nos. 1 and 2, namely, Mr. Chandra Kant Thakur was a different one than the one about which the complainant had made his grievance and this fact is amply disclosed in the report of Mr. Rahul Nagpal.

We are of the considered opinion that the complainant has rightly contended that he had been supplied with a defective goods and the same has not been replaced by the O.P. Nos. 1 and 2. It may be pointed out that the model and capacity of refrigerator purchased by the complainant has since been withdrawn from the market and is not being manufactured and hence the question of replacement of such a refrigerator cannot be directed. We are also of the considered opinion that the District Forum-I committed error in directing the replacement by the refrigerator of a higher capacity and manufactured by O.P. Nos. 1 and 2 may be for the same price i.e. Rs. 16,000/- paid by the complainant. The complainant has, thus, proved that he was supplied with a defective goods and he cannot be compelled to accept a refrigerator of a different make and capacity. Under these circumstances, the only option left is one which has been prayed by the complainant i.e. the refund of the price of the refrigerator purchased by the complainant.

RESULTANTLY, the complaint case is allowed and the O.Ps./appellants as well as O.P. No. 3, M/s. Surinder Vidconic Pvt. Ltd. are directed to refund a sum of Rs. 16,000/- to the complainant together with interest @ 10% p.a. from the date of purchase till its payment. Apart from this, the complainant shall get a sum of Rs. 1,000/- as directed by the District Forum-I as charges paid by him to the engineer. So far as compensation is concerned, the complainant has not provided any criteria for determining the amount of compensation of a sum of Rs. 25,000/- and Rs. 50,000/- as claimed in the complaint case and led no cogent evidence in this context. Even regarding the amount of Rs. 5,000/- which has been claimed for pursuing the complaint, there is no evidence led by the complainant. The interest has been awarded to the complainant by way of damages. In this view of the matter, no separate order for compensation as prayed by the complainant need be passed. The appeal filed by the complainant, i.e. Appeal No. 341 of 2001 is allowed accordingly to the extent indicated above. The appeal filed by the O.P. Nos. 1 and 2, i.e. Appeal No. 352 of 2001 lacks merit and dismissed accordingly. Copy of this judgment be supplied to the parties free of charges. Ordered accordingly.