KELVINATOR OF INDIA LTD Vs. SURINDER PAL GARG

JUDGEMENT

(1.) Short question but of great significance in consumer jurisdiction arises in this appeal filed by well known Company dealing in manufacture of refrigerators of make 'kelvinator', as to whether manufacturer of goods can be absolved of the obligations by unilateral act of selling the entire goods to sole selling agent who further markets such goods through dealers providing warranty for defects in the goods.

(2.) The appellant, M/s. Kelvinator India Ltd. with registered office at New Delhi is a Company incorporated under the Companies Act. It manufactures refrigerators of 'kelvinator' make in its factory. One such refrigerator was purchased by the complainant S. P. Garg of Village Munak, District Sangrur from M/s. Jai Durga Electronics Company, Munak for a sum of Rs.5,500/-in March, 1989. A sum of Rs.450/- was also paid as service charges. The refrigerator after working for two months abruptly stopped. A report was made to the dealer M/s. Jai Durga Electronics Company. Some repairs were done to the refrigerator and it started working. In April, 1990, it again stopped working. The old defects continued. The complaint made to the dealer did not bring any fruit. The fridge was not replaced or repaired. The complainant S. P. Garg thus, moved the District Forum, Sangrur for replacement of the refrigerator or refund of the amount paid with interest @ 18% p. a. He also claimed Rs.2,000/-compensation on account of mental tension and agony, apart from litigation charges. He impleaded the manufacturer, the appellant and the dealer M/s; Jai Durga Electronics Company as the opposite parties. Both the opposite parties filed separate written statements. Opposite party No.1 the appellant took up the plea that the refrigerators manufactured by them were being sold to whole sale buyers on principle to principle basis. The appellant had not appointed any dealer. Jai Durga Electronics Company was not their dealer. Whole sale buyer was responsible to provide after sale service to the consumers, who had given warranty to the consumers. On receipt of the complaint, the appellant used to forward the same to the whole sale buyer, who was attending to the same. The whole sale buyer's name and address was also given in para 5 of the reply as Expo Machinery Ltd. , New Delhi. The notice received from the District Forum was forwarded to Expo Machinery, Ltd. with the request to attend the complaint to the entire satisfaction of the complainant. There was no privity of contract between the complainant and the appellant. Thus, the complainant was not entitled to any relief from the appellant. The other opposite party M/s. Jai Durga Electronics Company in their written statement admitted the fact of sale of refrigerator to the complainant and further pleaded that their Company was a dealer of Expo Machinery Ltd. for sale of Kelvinator refrigerator at Munak. One year warranty was given from the date of purchase for repair and service and six years for the sealed components. The contract of service was with Expo Machinery Ltd. The warranty period expired on March 10, 1990. The complaint was liable to be dismissed as Expo Machinery Ltd. was not joined as a party. It was denied that the refrigerator stopped functioning after two months. It was pleaded that due to mishandling on the part of the complainant, the gas leaked which was refilled without any charges. No other complaint was made. It was denied that the refrigerator was not functioning. In August, 1992, the complainant orally asserted that the refrigerator be replaced. It is about 3 years from its purchase. The request was not acceded to. On visit to the house of the complainant in August, 1992, the refrigerator could not be inspected as he was not allowed to do so. He undertook to remove the defect if any in the functioning of the refrigerator. On receiving the evidence on affidavits and documents, the impugned order was passed by the District Forum on May 27, 1996 giving directions to the appellant to pay a sum of Rs.5.300/-with 15% p. a. interest on or before August 21,1996 and the complainant was bound to hand over the fridge to opposite party No.2, the dealer. The grant of interest referred to above covered the amount of compensation for mental agony etc. A sum of Rs.550/-was ordered to be paid as litigation expenses.

(3.) Learned Counsel for the appellant has argued that since the name of the Company, Expo Machinery Ltd. was disclosed at the initial stage of the proceedings, said Company should have been made a party as it was the said Company who had given warranty against sealed unit of the refrigerator and had entered into service contract. This contention cannot be accepted for the simple reason that the complainant wants relief against opposite parties impleaded and no third party can be impleaded as opposite party against the wishes of the complainant. The complaint as drafted is to be disposed of following the procedure prescribed under Sections 13 and 14 of the Consumer Protection Act.