1. A Notice of Enquiry (NOE) was issued to the respondents under Section 36B(a) of the Monopolies & Restrictive Trade Practices Act, 1969 (for brief the Act) on the basis of a complaint received from Shri Sanjay Tripathi levelling charges against the respondents that they indulged in unfair trade practice attracting provisions of Section 36A(1)(i) of the Act.
2. THE facts of the case is contained in the complaint may be very briefly summarised as below.
Mr. Sanjay Tripathi, the complainant purchased a refrigerator of 165 ltrs. capacity on 24.12.1990 from respondent No. 2 which was manufactured by respondent No. 1 for Rs. 6,900/-. The refrigerator was sold with a guarantee for one year. On the very date of installation of the refrigerator, the bulb inside the refrigerator was not working and within 15 days of installation the refrigerator stopped cooling completely. A complaint was lodged with the Voltas Service Centre, Lajpat Nagar on 7.1.1991. The complainant soon discovered that there was a crack in the bottom of the refrigerator and this was also brought to the notice of Voltas Service Centre. The mechanic of the respondents applied some chemical solution on the crack. The complainant found in the last week of March, 1991 that the refrigerator was not cooling again and lodged a complaint on 29.3.1991. The mechanic who visited the complainant, after inspection stated that the refrigerator had to be taken to the service centre for refilling of gas. On 1.4.1991 the complainant sought replacement of the refrigerator. On 3.4.1991 the complainant was informed that it was not possible to replace the refrigerator despite the fact that it was within the guarantee period. On 10.4.1991 a representative of Voltas Refrigerator Business group visited the house of the complainant and inspected the refrigerator. On 15.4.1991 the complainant served the legal notice on the respondent demanding Rs. 20,934/- by way of damages. On 26.4.1991 the respondent No. 1 informed the complainant that they were willing to replace the refrigerator as a very special case and no damages can be paid. In the complaint Shri Sanjay Tripathi has stated that he is a patient of diabetes and because of the mal-functioning of the refrigerator he had been put to considerable loss and damage.
The respondent filed a reply to the NOE in which the following main points were made :
1. The defective bulb was replaced on 27.12.1990. Immediately on receipt of the complaint on 7.1.1991 regarding ''not cooling'' of the refrigerator the defect was attended to promptly. The thermostat was found to be mal-functioning and it was immediately replaced. 2. The crack in the refrigerator had occurred due to mishandling of the refrigerator. Nevertheless the crack, which was a hairline one, was minor and was repaired to the satisfaction of the customer. 3. When the complaint about ''not cooling'' was made on 29.3.1991 the mechanic who checked the refrigerator said it should be sent to the workshop but the complainant refused to allow the refrigerator to be taken away. The respondent No. 1 agreed to replace the refrigerator even though the facts and circumstances of the case did not warrant the case as a special case and in the interest of customer satisfaction. After the pleadings were complete, the following issues were framed : 1. Whether the Notice of Enquiry is not maintainable for the reasons stated in the written reply filed by the respondent ? 2. Whether the respondent has indulged in the unfair trade practice as made out in the Notice of Enquiry ? 3. If answer to Issue No. 2 is in the affirmative, whether the said unfair trade, practice is prejudicial to the public interest, interest of the consumer or consumers generally ? 4. Relief.
3. THE complainant gave evidence and he was cross-examined by the Advocate for the respondent. On behalf of the respondent Shri Anil Sharma, Service Executive was produced as a witness and he was cross-examined by the Advocate for the complainant. During the course of enquiry the respondent without prejudice to his defence provided a substitute serviced refrigerator for the convenience of the complainant. THE refrigerator complained against was taken over by the respondent for rectification, if found necessary. THE complainant Shri Sanjay Tripathi passed away in November, 1997 and his widow Smt. Tara Tripathi was substituted formally as the complainant in this case.
During the cross-examination Shri Sanjay Tripathi the complainant stated that before purchasing the refrigerator he did not inform the respondent No. 1 that he was suffering from diabetes and that he wanted to buy a refrigerator for a special purpose. He also admitted that he declined to send the refrigerator to the service centre when the mechanic visited him in response to the complaint made on 20.3.1991. He admitted that he did not agree to send the refrigerator to the service centre for repairs as the respondent could have destroyed the evidence. According to the complainant the offer of the respondent No. 1 to replace the refrigerator was only after a legal notice was served to it on 15.4.1991. He also accepted that he declined the replacement because he had already taken the recourse to legal action.
4. SHRI Anil Sharma, witness of the respondent in his affidavit had reiterated the essential points made earlier in the reply to the NOE and no dent on his evidence was made during the cross-examination. The witness only admitted that the complainant did not give any certificate of satisfaction either at the time of the installation or subsequently.
We gave a hearing to Mr. T. Haque, Advocate for the complainant and Mr. D.S. Chauhan, Advocate for the respondent. We have carefully examined the records of the case/ evaluated the evidences adduced and considered the arguments put forward by the Advocate for the complainant and the Advocate for the respondent.
The Advocate for the respondent argued that it was not established during the enquiry that the refrigerator in question was defective or sub-standard in order to prove the charge of indulgence in unfair trade practice falling within the definition of Section 36A(1)(i) of the Act. The warranty provided by the respondent in respect of the refrigerator related to the defects due to faulty material or workmanship. Whenever the complainant brought to the notice of the respondents'' problems of the refrigerator they were promptly attended to. When the complaint of ''no cooling'' was received on 7.1.1991 it was attended to on the same day and the thermostat was replaced. On subsequent occasion on 29.3.1991 when similar complaint was received, as leakage of the gas from the compressor was suspected, the respondent wanted that the refrigerator to be taken to the service centre which was refused by the complainant. As regards the complaint relating to crack in the cabinet, the Advocate for the respondent argued that it could result due to mishandling on the part of the customer but nevertheless on receipt of the complaint, it was attended to. He emphasized the fact that the complainant had not intimated the respondent regarding his health condition or the performance for which the refrigerator was being purchased and this was admitted by the complainant during the cross- examination. The warrantee in any case did not cover consequential liability, damage or loss.
5. FROM the facts of the case as well as the evidence produced, we are satisfied that there has been no acts on the part of the respondents which could be termed as deficiency in service. If an individual unit manufactured by the respondent No. 1 mal-functioned due to any defect that alone cannot be a ground to establish that the respondent is guilty of indulgence in unfair trade practice falling within the definition of Section 36A(1)(i) of the Act. The promptness and the sincerity with which the defects pointed out by the customers is attended to will establish the bona fides of the respondent with regard to the representations made by it. In this case it has also been established that the respondent No. 1 had offered to replace the refrigerator itself and the complainant was asked to choose a new one. The complainant admitted that he did not avail of the offer as he had filed a complaint with the Commission and he was interested in refund of the amount paid by him as well as compensation and damages. Having regard to the facts of this case we are of the view that no unfair trade practice has been indulging in by the respondent the question of considering any compensation to the complainant does not arise.
6. DURING the course of the enquiry, the original complainant unfortunately expired and the name of his widow has substituted as the complainant. The respondent No. 1 had provided a service refrigerator at the residence of the complainant for use by the complainant after taking the refrigerator complained again for checking and repairs. On the conclusion of the arguments in this case, the Advocate for the respondent on instruction from his client has offered without prejudice to the contention of the respondents on the merits of the case that the respondent No. 1 would deliver to the complainant her original refrigerator 165 LT. regular model which has been checked and in working condition. Noting that the complainant has since shifted to Gorakhpur (U.P.), respondent No. 1 would also be willing to deliver the refrigerator there through its dealer M/s. Climate Control, Bank Road, Gorakhpur (U.P.). Respondent No. 1 has also stated that the complainant may continue to retain the service refrigerator of 165 Itrs. provided by it at the instance of the Commission thus allowing the complainant to retain both the refrigerators. This offer has been made before the Commission passed this order. An application to this effect has been filed and a copy of that has been sent to the Advocate for the complainant. We would like to appreciate the gesture on the part of the respondent No. 1. We direct that respondent No. 1 is bound by this offer and the complainant can take delivery of the refrigerators from the dealer in Gorakhpur as offered by it. For the reasons discussed above, we hold that the respondents had not indulged in any unfair trade practice, we direct that a NOE issued against them be discharged subject to compliance with the above direction. No order as to costs. Enquiry discharged.
