COOL INDIA vs RAMA LUTHRA

THIS appeal has been filed by the OP against the order of the District Forum -II (D.F.) dated 22.2.94.

BRIEFLY the facts are that OP-1 is carrying on business of repairing air-conditioners and it is alleged that Mr. O.P. Batra and. Mr. Ranjeev Batra, O.P.-2 & O.P.-3 are its proprietors. The complainant had installed at her residence one two-ton air-conditioner of the General Electric make. On or about 13-5-92 the complainant noticed that her air-conditioner was not cooling properly. She contacted OP-1 Mr. Ranjeev Batra, O.P-3 deputed an engineer to examine the air-conditioner. He, it is alleged, informed the complainant, that the air-conditioner would have to be taken to the workshop for service. Accordingly, it was removed to OP-l''s workshop on 14.5.92 for repairs. On 15.5.92, a fire broke out in the workshop and a part of the air-conditioner alongwith other goods in the workshop was burnt. The complainant asked the OPs to replace the air-conditioner with a similar foreign made air-conditioner or pay her the amount to enable her to purchase a new air-conditioner but they expressed their inability to do so. Consequently she filed a complaint before the District Forum.

The OPs contested the claim of the complainant and inter-alia pleaded that OP-3 was the sole proprietor of Cool India, OP-1 and OP2 had nothing to do with OP-1. It is further pleaded by them that the contract of repair/ servicing of the air-conditioner became impossible to be performed as in the fire which broker out in the workshop, the air-conditioner had been partly burnt. OP-1 had agreed to reassemble the air-conditioner with the old compressor and thus a new contract had come into existence. Therefore, the complainant is not entitled to recover the price of the airconditioner or ask the OPs to replace the airconditioner.

IT is next pleaded that there was no negligence on the part of OPs and consequently no deficiency in service can be assigned to them. They also averred that they were ready to assemble the air-conditioner with the old compressor as a gesture of good will and to maintain business relations at the cost of the complainant but no guarantee or warranty can be given regarding its functioning. The District Forum came to the conclusion that due to the fire the contract was frustrated within the meaning of Section 56 of the Contract Act. However, that does not absolve the OPs of their responsibilities. The A.C. had been taken by them to their workshop and therefore, u/Sec. 151 of the Contract Act they were bound to take as much care of the goods as a man of ordinary prudence would under the similar circumstances had taken of his own goods. They could be absolved of their liability, if they could show that they had taken the amount of care as described in Section 151 but there was no evidence on the record to show that they had taken any steps to prevent breaking out of the fire. They also did not get the goods in the workshop insured which was expected from them. It was further held that it could not be held that OP-2 had no connection with the business carried on in the name of OP-1. Therefore, he is also liable to compensate the complainant alongwith OP-1 and OP-3. Consequently they directed the OPs to pay Rs. 60,000/- to the complainant as the price of the air-conditioner with interest @18% p.a. from 1.6.92, Rs. 2,000/- as compensation for mental harassment and Rs. 1,000/- as costs of the proceedings, within a period of two months. The OPs have come up in appeal against the said order to the Commission.

THE learned Counsel for the appellant has vehemently argued that in view of the findings of the District Forum that the contract stood frustrated and had become void, it was not justified in granting a decree of Rs. 60,000/- in favour of the complainant/respondent. On the other hand the learned Counsel for the respondent has argued that Section 56 of the Contract Act is not applicable to the case of this type. In order to decide the matter it is necessary to read Section 56 which is as follows:- "56 Agreement to do impossible Act-An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful-Where one person has promised to do something which he knew, or with reasonable diligence, might have known, and which the promise did not know, to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promise sustains through the non-performance of the promise."

THE Section consists of there parts. THE first part deals with the agreement to do an impossible act, the second part with contract to do an act which afterwards becomes impossible or unlawful and the third part with compensation for loss through non-performance of an act known to be impossible or unlawful, to a promiser. The proprietor of appellant No.1, (hereinafter referred to as the proprietor) had taken the A.C. for repair and therefore, he was liable firstly to repair the A.C. and secondly to return the same after repair. After the A.C. had been burnt the contract of repairing became void as it was not possible to repair that on account of having been burnt. However, the second part of the contract i.e. of returning the A.C. does not become viod as Section 56 does not govern that part of the contract. Consequently other provisions of the Contract. Act have to be seen. For that purpose we may read Sections 151,152, and 161 of the Contract Act, which are as follows:- "251. Care to be taken by bailee-In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.

Bailee when not liable for loss, etc. of thing bailed-The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed, if he has taken the amount of care described in Sec. 151.

Bailee''s responsibility when goods are not duly returned-If by the default of the bailee, the goods are not returned, deliver, or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time."

It is evident from a reading of Section 151 that the standard of care required to be taken by the bailee is, that of a reasonable or prudent man which he should use to avoid foreseeable danger. The degree of care required varies with the degree of risk involved in the trade, which the bailee is carrying on. The more dangerous the act is, the greater degree of care is required, to be taken in performing it. If the work requires skill, the standard of care is raised. The person who undertakes the work, must possess the skill and the work should be done in a skilled manner. The premises should be suitable for doing the job and the owner should have requisite appliances in workable condition. Now we have to see what was the cause of fire and whether, the owner took reasonable precautions as a prudent man should have taken to avoid it. The proprietor is carrying on the business of repairing and installing air-conditioners. It is, therefore, incumbent upon him that the electric wiring in the workshop is of good quality and of strength to take the load. It should be replaced after regular intervals, so that there is no possibility of short circuiting. As a general rule it is for the plaintiff to prove that there is negligence on the part of the defendant and if he is unable to prove the defendant''s negligence, the defendant cannot be held liable. However, the plaintiff in certain cases need not prove the negligence of the defendant. These are, where the circumstances in which the damage is caused are under the control of the defendant and the happening is of such a nature, which should not have occurred if he has not been negligent. In that case the burden of proof shifts from the plaintiff to the defendant to show that he was not negligent.

IN the present case the proprietor has not proved what precautions he had taken regarding wiring, i.e. of what make and quality the wire was and when it was done. It is stated by Opposite Parties that the fire broke out on account of short circuiting. If the proprietor had taken sufficient precaution, in our view, the short circuiting could be avoided. The work which is done in the workshop is of such a nature, that the goods of the customers worth lakhs of rupees are stored there. IN the present case the proprietor even did not care to get the workshop insured. After taking into consideration the above circumstances, we are of the view that the proprietor failed to take the same care in regard to the goods of the customers as a man of ordinary prudence should have taken. IN the above view we are fortified by a decision of Supreme Court in N.R. Srinivasa Iyer v. New INdia Assurance Company, AIR 1983 SC 899. IN that case a car was sent to workshop for repair and it burnt in the fire that broke out in the workshop. It was observed by the Supreme Court as follows :- "The sub-bailee, was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was exected of the bailee. Now no evidence has been led by the defendants to explain what amount of care the bailee or the subbailee took in respect of the car. When the custody is of the bailee or the sub-bailee, the burden is on them to show how they handled the car. This is well established and need no authority. IN Morris''s case (1965-2 All ER725) the question of burden of proof was examined by the Court of Appeal and the law was stated as under: "Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care, to keep them safe; and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show-and the burden is on him to show - that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty".

....The burden was on them to establish to the satisfaction of the Court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been discharged, the learned Trial Judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff the bailor." The above observations are fully applicable to the present case.

THE Counsel for the appellant has further argued that there is no deficiency in the service provided by the proprietor. It has already been discussed above that did not take care of the electric wiring as an ordinary man of prudence should have taken. This amounts to deficiency in service. Consequently we reject his submission. The next question that arises for determination is, what amount the complainant is entitled to recover from the proprietor. The District Forum (D.F.) granted her an amount of Rs. 60,000/- on account of price of the A.C. The Counsel for the appellant has argued that the price of the air-conditioner as assessed by it, is very high and there is no evidence to support that finding. We have considered the argument of the learned Counsel and gone through the quotations placed on record. M/s. Kelvin Systems (P) Ltd. has quoted the price of a two-ton air-conditioner manufactured by carrier, a well known manufacturer, as Rs. 36,160/-. It includes sales tax and installation charges. The price of the A.Cs after the order of the D.F. have been reduced on account of ''Cut'' in Excise Duty. It is well-settled that the changed circumstances at the time of appeal can be taken into consideration. The air-conditioner in dispute had been used by the complainant for sometime. No cash memo of the price of the airconditioner has been produced. Even no other authentic evidence regarding its price has been produced. The air-conditioners manufactured by the reputed companies in India are of good quality. Carrier is a reputed company and the air-conditioners manufactured by it are considered of high quality. However, no heating system has been provided in the above said airconditioner We have been informed that by spending a few thousand rupees the heating system can be provided. We think that if an amount of Rs. 40,000/- is awarded to the complainant, she can provide heating system and rotating blades in the air-conditioner. Consequently, we modify the order of the District Forum and grant Rs. 40,000/- to the complainant as price of the air-conditioner.

Rs. 2,000/- have been granted as damages to the complainant for mental pain and suffering by the D.F. We find no reason to interfere with that amount. The D.F. has also given interest to the complainant/respondent on the price of A.C. @ 18%p.a. from 1.6.92. We are also not inclined to reduce the rate of interest.

THE last question of the learned Counsel for the appellant is that Mr. O.P. Batra, OP No. 2 is not the proprietor of the OP No. 1, and therefore, he is not liable to pay any amount to the complainant. We have duly considered the argument and find force therein. THE OP has produced various documents from Sales Tax and Income Tax Authorities wherein OP-1 has been shown to be owned by OP-3. No documentary evidence has been placed on the record by the complainant/respondent, where Op-2 is shown as a partner of OP-1. THE D.F. relied upon a letter written by the complainant to OP-1. It is mentioned there at the top ''Kind Attention : Mr. O.P. Batra''. It was acknowledged by Mr. Ranjeev Batra, OP-3. OP-2 is the father of OP-3. It is natural that the father in order to help his son might have been negotiating on his behalf at that time. It cannot be held on the basis of the letter of the complainant that OP-2 was a partner in OP-1. THErefore, we are of the view that the OP-2 cannot be held liable to pay the decretal amount. Consequently we partly accept the appeal and direct the appellant Nos. 1 & 3 to pay Rs. 40,000/- with interest @18% p.a. from 1.6.92 till the date of payment, Rs. 2,000/- as damages and Rs. 1,000/- as costs of the D.F. within a period of three months, failing which action shall be taken against them u/Sec. 27 of the Consumer Protection Act. In view of the partial success of the appeal, we make no order as to costs in the appeal. Appeal partly allowed.