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WEST BENGAL STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CALCUTTA
Hon’ble Mr. Justice A.K. Bhattacharjee, President;
Prof. Sunil Kanti Kar & Smt. Sikharini Dutta, Members
EXPO MACHINERY LTD.—Appellants
versus
G.S. PAL & ANR.—Respondents
S.C. Case No. 346/A of 1995—Decided on 15.1.1996
Held: It appears from the record that after having purchased the refrigerator on 21.10.93 it went out of order since January, 1994 and it again appears from the complaint letters dated 1.3.94, 17.3.94 and 21.3.94 addressed to the appellant and/or to the proforma respondent No.2, the complainant made requests to the appellant and/or proforma respondent No.2 to set the refrigerator in order. It further appears from the said letters that prior to making those written complaints, the representative of the complainant/respondent No.1 made several personal representations to the proforma respondent No.2 alleging the defects or non-functioning of the refrigerator since January, 1994. Surprisingly neither of them attended the refrigerator to set it in order nor replied anything in writing against those written representations. It was the obligation in the part of the appellant as well as proforma respondent No.2 who was opposite party No.1 before the learned District Forum, Calcutta in C.D.F. Case No. 1390/94 to attend immediately on receipt of the complaint about the defect and non-functioning of the refrigerator instantly, specially in view that the refrigerator became out of order and/or remained non-functioning during guarantee period of one year from the date of supply. It is disbelieved by us that the appellant sent its mechanics to the residence of the complainant respondent No.1 to attend the refrigerator but none was found in his residence. It is unbelievable that in a residential house none of family members of the complainant was there.
The allegation of the appellant about non-production of any experts evidence or report is of no value because the complainant/respondent No. 1 during its guarantee period lodged the complaint of the defect and/or non-functioning of the refrigerator. Even, it is an unqualified complaint, it was the duty of the appellant and or proforma respondent No.2 to send expert for ascertain the nature of the defect just on receipt of the complaint during guarantee period or even after initiation of the complaint proceeding before the District Forum, Calcutta and appeal preferred by the appellant before us. Therefore, the approach of the appellant and/or proforma respondent No.2 cannot bent called bonafide or approach in clean hand before the Consumer Disputes Redressal Forum. However, by the action and/ or non-action of the appellant and/or proforma respondent No.2 the complainant/respondent No. 1 has been deprived of to enjoy the refrigerator since January, 1994 till now.
(Para 9)
Following the aforesaid decision of the Honble National Commission and as agreed by the appellant to replace the refrigerator by new one, we direct the appellant to replace the same with fresh guarantee for one year within 15 days from the date of this order and also to pay Rs. 2,000/- as compensation for deprivation of enjoyment of the refrigerator for such a long time and also for mental torture and harassment caused to the complainant/respondent No.1 for such a long period. The order of the District Forum is modified accordingly.
(Para 13)
Result: Appeal disposed of
Dr. Sunil Kanti Kar, Member—The appeal has been preferred against the order dated 12.6.95 in C.D.F. Case No. 1390/94 by M/s. Expo Machinery Ltd. who was opposite party No. 2 before the learned District Forum, Calcutta.
2. In the said impugned order dated 12.6.95, the learned District Forum, Calcutta directed the appellant to refund the price of the Freeze amounting to Rs. 8,550/- together with 15% interest and also awarded Rs. 5,000/- as compensation to the complainant/respondent No. 1 within one month.
3. The complainant case is this that he purchased a Kelvinator Refrigerator at Rs. 8,550/- on 21.10.93 from the appellant for which there was a guarantee period for one year and that the refrigerator disclosed inherent defects from the very beginning and anyhow running for two months, the operation of the refrigerator was totally suspended during the guarantee period and the complainant by his letters dated 1.3.94, 17.3.94 and 21.3.94 and also by several personal representation informed the appellant who is manufacturer of the Refrigerator and also to the Proforma respondent No. 2 who is the dealer and agent of the appellant to take immediate steps to set the refrigerator in order but all were in vain. Nobody turned up either from the manufacturer/appellant nor from the Dealer/ Proforma respondent No. 2 to attend the disordered refrigerator during the said guarantee period. Ultimately the complainant / respondent No. 1 lodged a complaint on 10.5.94 before the Calcutta District Forum, Calcutta seeking reliefs as granted by the District Forum, Calcutta.
4. Inspite of receipt of the notice, the Proforma respondent No. 2 who was opposite party No. 1 in the complaint/petition being a dealer under the appellant and the appellant did not appear to contest the said complaint/petition. So, the allegations made against them remained uncontroversial.
5. The complaint was decided ex-parte and when the execution of the ex-parte order was initiated, the appellant came forward before the learned Calcutta District Forum alleging non- service of notice on it and prayed for setting aside the ex-parte order, although it is the contention of the complainant/respondent No. 1 that he served the notice of the complaint case upon the appellant but it did not turn up on receipt of the same and that on this issue much water was mudled and the complainant/respondent No. 1 attempted to prove showing the remnant of A/D card and postal receipt taken out by tearing off from the case record that service of notice of the complaint case was duly made. However, it is submitted by him that the ex-parte order was set aside and the matter was heard contested while the appellant alone filed written objection and the Proforma respondent still did not appear.
6. In the written objection and in the grounds of appeal, the main contention of the appellant are that the complainant/respondent No. 1 did not produce any authentic ex-part opinion to show that the refrigerator is defective and further contended that the appellant sent its mechanic but none was found in the house of the complainant/respondent No. 1 as suchhe could not rectify the defect of the refrigerator if there was at all and that the complainant/respondent No. 1 is more eager to get refund of the value of the refrigerator than to get it repaired. The appellant strongly relied on the decisions reported in 1993 (1) CPR 170 decided by the National Commission. In addition to that the appellant referred to other decisions reported in 1993 (3) CPR page 91 decided by the State Commission, Andhra Pradesh and 1993 (3) CPR 512 decided by State Commission, Kerala.
7. The complainant/respondent No. 1 denied that there was none of the family members in his residence where the refrigerator is lying and asserted that his family members constantly remain in his residence. He argued that during guarantee period it is the duty of the appellant as well as proforma respondent No. 2 to attend any defect alleged of by consumer.
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