State Consumer Disputes Redressal Commission
Hemant Kapoor vs Sandeep Kumar on 16 July, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 16-07-2007 Appeal No.A-14/2004 (Arising from the order dated 10-11-2003 passed by District Forum-III, Janakpuri, New Delhi in Complaint Case No.896/2002) Shri Hemant Kapoor, Appellant Proprietor of M/s Bharat Refrigeration through Manufacturing Co., Mr. V.K. Anand, 2151-E-4/Q-1, New Patel Nagar, Advocate. Shadipur Depot, New Delhi-110018. Versus Shri Sandeep Kumar, Respondent S/o Shri Brij Mohan, Through Prop. Of M/s chini Sweets Corner, Mr. Sajan K. Singh, Opp. Railway Mal Godown, Linepar, Advocate. Bahadurgarh-124507, Jhajjar, Haryana. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On account of having sold a defective refrigerator, the appellant has been vide impugned order dated10-11-2003 directed to refund Rs. 26,000/- and also Rs. 2,200/- towards charges for repairs.
2. Feeling aggrieved, the appellant has preferred this appeal.
3. Admittedly respondent runs a sweet shop and purchased a refrigerator form the appellant for the cost of Rs. 26,000/- on 22-04-2001. On 01-05-2001 the refrigerator stopped functioning which was repaired on payment of charges of Rs. 2,200/-.
Again after two-three months it started giving trouble. The mechanic of the appellant came and revealed that compressor of the said refrigerator was of low HP as per the capacity of the refrigerator and was therefore not capable of cooling the refrigerator. It again developed defect and was taken to the appellant on 17-08-2002 for repairs and was returned on 25-09-2002 by extending the warranty period till 31-12-2002. However, subsequently the refrigerator completely broke down.
4. The impugned order has been assailed by the learned Counsel for the appellant on the ground that the refrigerator was purchased for commercial purpose and secondly it was purchased in 2000 and not in 2001 and the warranty for the refrigerator was 18 months and there was no defect in the compressor and therefore the refund of the cost of the refrigerator was not called for.
5. As regards the objection that refrigerator was purchased for commercial purpose, it has no force. Commercial purpose is one where a person purchases articles for selling it further to earn profit and not for putting up it on his own use or to earn livelihood. Admittedly refrigerator was purchased by the respondent for the purpose of cooling of goods and not for the purpose of sale to other person as trader or dealer.
6. The appellant has not disputed having charged Rs. 2,200/- for repairs immediately after two days of sale of the refrigerator and after two or three months he again charged Rs. 1,500/- as service charges and lastly he retained the refrigerator for almost a month for carrying out repairs.
7. The quality of any goods or article has to be tested on the anvil of the word defect as defined by section 2(1)(g) of the Consumer Protection Act and it is not necessary that unless and until the goods suffered from manufacturing defect and has inherent defect it has to be held as defective good.
8. Whenever a brand new article like the refrigerator or vehicle is purchased by a consumer the minimum expectation of the consumer is that it will not give any trouble atleast for few months or so as a second hand article or goods gives trouble.
9. As regards the contention that there was warranty of 1 years for the compressor and therefore the refrigerator should not have been held as defective goods is without any substance. The concept of warranty if at all is that seller or the trader or the retailer can charge repairs if it is brought for repairs after warranty but it does not mean that if the goods are taken time and again for repairing defects continuously during or after warranty period, these do not fall within the definition of defective goods. If there is any kind of shortcoming or imperfection in quality or inadequacy in performance, the goods have to be branded as defective goods.
10. In the instant case within two months the refrigerator was taken on several occasions for repairs and expenses of repairs were charged. It is stated by the counsel for the respondent that the refregerator had been handed back to the appellant which is lying with him for several years.
11. Whenever defective goods are sold there are four options available to the Consumer Forum under section14 of the Consumer Protection Act. First is to remove the defect pointed out by the appropriate laboratory from the goods in question.
Second is to replace the goods with new goods of similar description which shall be free from any defect.
Third option is to return to the complainant the price or as the case may be the charges paid by the complainant and the fourth option is to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
12. In cases of identical nature we have taken the view that dispute between the consumer and the trader or retailer should be ended once for all and the safer solution is to direct the appellant to refund the cost of the goods instead of directing him to replace the goods with new goods as possibility of new goods also being not defect free and not upto the satisfaction of the consumer cannot be ruled out and this will again rise to second bout of litigation between the parties.
13. Taking over all view of the facts of the case particularly the circumstance of respondent having been deprived of the use of the refrigerator for 6-7 years which is lying with the appellant we do not find any reason to interfere with the impugned order.
14. In the result the appeal is dismissed being devoid of merit.
15. Impugned order shall be complied with within one month from the date of receipt of this order.
16. Appeal is disposed of in aforesaid terms.
17. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
18. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
19. Copy of the order be sent to President of all the District Fora.
20. Announced on the 16th July, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj