A consumer is entitled to have a defective product replaced if the defects are such that they cannot be cured by repair, even if a previous order directed the seller to repair any defects in the replaced product.

Mr. Justice L. Manoharan, President— The first opposite party in O.F. 164/1997 of the Consumer Disputes Redressal Forum, Kollam is the appellant. The complainant in the aforesaid O.P. approached the District Forum, Kollam with a grievance that, the TV which was replaced while O.P. 481/1996 was pending, is not functioning properly. According to him the replaced TV is an old one and the defects are such that, the TV has to be replaced. The opposite parties filed version controverting the allegations. The District Forum after going into questions came to the conclusion that the complainant is entitled to have the TV replaced, and accordingly the District Forum directed the opposite party to replaced the TV with a new TV set with warranty or in the alternative to return the price of the TV with 18% interest from the date of purchaser. The District Forum also awarded Rs. 1,500/- as compensation and Rs. 500/- as costs. Aggrieved by the same, as indicated, now the first opposite party has come up in appeal. The learned Counsel for appellant maintained that the complainant had originally filed O.P. 481/1996, during its pendency the TV that the complainant purchased was replaced with a new TV with a fresh warranty. In view of the same, the District Forum disposed of the said O.P. ordering the opposite party that if any defect is noticed in the replaced set, the opposite party will rectify the defect without charging for the same, etc. Therefore the complaint was not maintainable. This complaint has been launched after rendering of the said order alleging that the said TV has defects and also that what was replaced, was an old model less in value than the one, the complainant had purchased. Since defects cannot be cured by repair, the complainant sought for replacement of the TV.

2. The first point urged by the learned Counsel for the appellant is in view of the order by the District Forum dated 17th January, 1997 the second complaint itself is not maintainable. The point urged by the learned Counsel is, inasmuch as direction was made by the District Forum to intimate the opposite party if the replaced TV develops any defect and the opposite party should repair the same, a fresh application for replacement should not have been entertained. The other point urged by the learned Counsel is, the conclusion reached by the District Forum that replaced TV is such that the opposite parties are bound to replace the same, is not sustainable even as per Ext. CI report which was relied on by the District Forum to reach the aforesaid conclusion. Learned Counsel for the respondent on the other hand argued that there is no bar for the second complaint as is urged by the learned Counsel for the appellant as according to the learned Counsel, the said order cannot take away the right of the complainant to approach the Forum. Since the defects are such that the same cannot be cured by repair, replacement is the only remedy. According to the learned Counsel, since the conclusion that replacement of the TV is necessary was on the basis of Ext. CI report filed by an expert who was the Professor and Head of the Department of Electronics and Communications Engineering, in the TKM Engineering College, at the instance of the appellant, the said finding cannot be called in question. The learned Counsel also argued that the second opposite party, the dealer had filed an appeal from the identical order as Appeal No. 219/1998 which at the admission stage was dismissed by this Commission. In the context of the said order of this Commission it is not possible for the appellant to urge that, the appellant is entitled to an order inconsistent with the order rendered by the Commission on Appeal 209/ 1998.

3. The order of the District Forum O.P. 481 / 1996 has only a restricted operation, if the defect of the TV is such that the same is curable by repair then the complainant cannot file a fresh complaint, for replacement. Therefore the crucial question is whether the d