VOLTAS LTD. vs PUSHPA BATRA

THIS appeal has been filed against the order of District Forum, Gurgaon dated 6th March, 1995 by which the appellant has been directed to replace the refrigerator of the respondent. The learned Counsel for the appellant had not been coming present for the last three hearings. Therefore, on 22nd April, 1996 arguments of the learned Counsel for the respondent alone were heard. However, thereafter on 30th April, 1996 the learned Counsel for the appellant filed an application for submission of his written arguments, which was allowed and written arguments on his behalf were taken on record.

BRIEF facts of the case are that on a complaint filed by the respondent. District Forum, Gurgaon vide its order dated 20th May, 1994 had directed the present appellants to remove the defects in the refrigerator sold to the respondent within 10 days to the entire satisfaction of the complainant. However, the respondent filed another application before the District Forum on 25th January, 1995 alleging that the said order of the District Forum had remained uncomplied with and requested for action initiated against the present appellants under Section 27 of the Consumer Protection Act. On notice being received by the present appellants, they appeared before the District Forum and stated that the refrigerator had been repaired and rendered perfectly alright and subsequent check-ups were also carried on its performance through their Service Engineer on 28th May, 1994, 16th June, 1994 and 23rd June, 1994 and on all these occasions it was found in proper working order. Thereafter no complaint was received by them and when on receipt of the notice of this application they sent the Mechanic to check-up the refrigerator, it was found burnt due to electrical fault at the residence of the respondent. It was also pointed out that this fact was not mentioned in the application by the respondent. The District Forum after hearing the parties came to the conclusion that the present appellants had failed to put the refrigerator in order and therefore, directed the present appellant to replace the refrigerator. The main point raised in the appeal by the learned Counsel for the appellants is that the District Forum has no powers to modify the original order while proceeding under Section 27 of the Act. In this case, the original direction was only regarding the repair of the refrigerator and now the District Forum had directed the appellants to replace the refrigerator without any fresh complaint having been filed in this regard. The learned Counsel for the respondent had earlier pointed out that the District Forum had clearly stipulated that the repair should be carried out to the entire satisfaction of the respondent and inspite of the fact that their Mechanic had carried out some repairs the respondent was not satisfied and had also recorded this fact on both the occasions when repairs were carried out. Therefore, the District Forum has rightly come to the conclusion that the earlier order passed by it had not been complied with and had, therefore, rightly directed the appellant to replace the refrigerator.

As no legal provisions or precedent have been cited by any of the parties, this case has to be decided on examining the basic principle alone. It is well settled practice in our jurisdiction that any penal or confiscatory provisions of any legislation has to be construed very strictly and benefit of doubt, if any, has to be given to the accused. Even though it has been held that Consumer Protection Act is a beneficial legislation to watch the interest of the consumer it has to be observed that while acting under Section 27 the District Forum is not just watching the interest of the consumer but exercising statutory powers to ensure the compliance of its own order. In Section 27 stringent penal powers have been vested in the FORA set up under the Act to ensure compliance of their orders and to punish non-compliance by imposition of fine which may extend to 10,000 rupees or imprisonment for a term which may extend to 3 years or with both. It has therefore been held that proceedings under Section 27 being criminal in nature adequate opportunity to defend must be provided to the person against whom proceedings are initiated under this section. Therefore, while examining the matter for taking action under Section 27 the compliance of the earlier order alone is to be seen and nothing more. The powers of the District Forum in case of non-compliance extend only to imposition of fine or imprisonment as per the provisions of this Act and cannot give them the powers to modify the earlier orders to provide some different kind of relief to the consumer. It is true that even under Section 27 proceeding against persons not complying with the order of the District Forum etc. can be terminated on offer of compliance and an apology for not doing so earlier. We have even gone to the extent to hold that even if the compliance is made after the passing of a sentence under Section 27, the sentence of imprisonment may not be executed, if unconditional compliance is made by the party even after passing of the punishment order, in the case of M/s. Atma Ram, Amar Nath v. Santosh Kumar Aggarwal, reported as II (1993) CPJ 1000. It is thus manifest that purpose of this section is to ensure compliance of the orders of the District Forum under the Consumer Protection Act and nothing more than that. In the present case, whereas original order was passed to repair the five years old refrigerator, now the District Forum has ordered the appellant to replace the same. This certainly cannot be held to be in accordance with the provisions of Section 27 of the Act under which this order is purported to have been passed. If the consumer was not satisfied with the repairs carried out by the present appellant, it was open to the District Forum to examine the matter in detail to see whether the necessary repairs had been carried out as per its order or not. Basing its order on the observations made by the complainant alone was not sufficient. The observation of the District Forum that the appellant had failed to put the machinery in order and ultimately the cabinet was burnt are not based on any evidence before it. In fact, as pointed out by the appellant the fact that the cabinet had been burnt meanwhile, was not even mentioned in the application. Therefore, it appears that the cabinet got burnt for altogether different reasons and not while carrying out the repairs of the refrigerator. The observation recorded by the husband of the complainant also shows that the burning of the cabinet had nothing to do with the repairs carried out by the appellant. Therefore, the directions to the appellant to replace the old refrigerator are contrary to the evidence before the District Forum. Under these circumstances, the appeal of M/s. Voltas Limited is allowed and the case is remanded to the District Forum for fresh trial on the point of compliance of the orders of the District Forum dated 20th May, 1994 after allowing the parties to produce evidence in this behalf. If the appellants had carried out the repairs as directed by the Forum then no action would be necessary under Section 27 of the Act, but if the District Forum comes to the conclusion that the repairs were not carried out satisfactorily, it may pass an order strictly in accordance with the provisions of Section 27 for imprisonment and/or fine on the appellants. If the respondent feels that the cabinet of the refrigerator got burnt due to the negligence of the appellants in carrying out repairs, she would be at liberty to file a fresh complaint for proper adjudication of the matter. The order of the District Forum in the present form for the replacement of the refrigerator cannot be allowed to stand and is hereby set aside. The appeal stands disposed of accordingly. Appeal allowed. ______________