Dharia Infrastructure Development ... vs Mrf. Pandurang Kondiba Pawar on 12 January, 2016

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State Consumer Disputes Redressal Commission

Dharia Infrastructure Development ... vs Mrf. Pandurang Kondiba Pawar on 12 January, 2016

                                1                  F.A..No.:659/2014




                                Date of filing :30.09.2014
                                Date of order :12.01.2016
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. :659 OF 2014
IN COMPLAINT CASE NO.: 167 OF 2010
DISTRICT CONSUMER FORUM : LATUR.

1.   Manager,
     Dharia Infrastructure Development Pvt.Ltd.,
     "Indu Niwas", 43, Housing society,
     Off.Senapati Bapat Road,
     Shivaji Nagar, Pune-411 016.
     Through its Authorised Signatory,
     Shri.Shardul Vijay Pardeshi,
     R/o Aryan Foundation, Pune Road,
     Solapur - 413 001.

2.   Manager,
     Case New Holland Construction Equipment(India) Pvt.Ltd.,
     Erthswhile L & T Case Equipment Pvt.Ltd.,
     Gate No.1, 1st floor, North Block,
     2nd Saki Naka Road, Pawai(West),
     Mumbai-400072,
     Through its authorised Signatory,
     Shri.Ravish Kumar S/o Balwant Kumar Singh,
     R/o 905-906, Aieren Heights, Scheme-54,
     A-B Road, Indore-10.                     ...APPELLANTS


VERSUS


Mr.Pandurang Kondiba Pawar,
R/at Renapur, Tq.Renapur,
Dist.Latur.                                   ...RESPONDENTS.



          CORAM :     Mr.S.M.Shembole, Hon`ble Presiding Judicial
                      Member.

Smt.Uma S.Bora, Hon`ble Member.

Present : Adv.U.N.Shete for appellants, Adv.U.M.Deshpande for respondent.

1 F.A..No.:659/2014

Date of filing :30.09.2014 Date of order :12.01.2016 MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. :659 OF 2014 IN COMPLAINT CASE NO.: 167 OF 2010 DISTRICT CONSUMER FORUM : LATUR.

1. Manager, Dharia Infrastructure Development Pvt.Ltd., "Indu Niwas", 43, Housing society, Off.Senapati Bapat Road, Shivaji Nagar, Pune-411 016.

Through its Authorised Signatory, Shri.Shardul Vijay Pardeshi, R/o Aryan Foundation, Pune Road, Solapur - 413 001.

2. Manager, Case New Holland Construction Equipment(India) Pvt.Ltd., Erthswhile L & T Case Equipment Pvt.Ltd., Gate No.1, 1st floor, North Block, 2nd Saki Naka Road, Pawai(West), Mumbai-400072, Through its authorised Signatory, Shri.Ravish Kumar S/o Balwant Kumar Singh, R/o 905-906, Aieren Heights, Scheme-54, A-B Road, Indore-10. ...APPELLANTS VERSUS Mr.Pandurang Kondiba Pawar, R/at Renapur, Tq.Renapur, Dist.Latur. ...RESPONDENTS.

CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

Smt.Uma S.Bora, Hon`ble Member.

Present : Adv.U.N.Shete for appellants, Adv.U.M.Deshpande for respondent.

1 F.A..No.:659/2014

Date of filing :30.09.2014 Date of order :12.01.2016 MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. :659 OF 2014 IN COMPLAINT CASE NO.: 167 OF 2010 DISTRICT CONSUMER FORUM : LATUR.

1. Manager, Dharia Infrastructure Development Pvt.Ltd., "Indu Niwas", 43, Housing society, Off.Senapati Bapat Road, Shivaji Nagar, Pune-411 016.

Through its Authorised Signatory, Shri.Shardul Vijay Pardeshi, R/o Aryan Foundation, Pune Road, Solapur - 413 001.

CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

Smt.Uma S.Bora, Hon`ble Member.

Present : Adv.U.N.Shete for appellants, Adv.U.M.Deshpande for respondent.

1 F.A..No.:659/2014

Date of filing :30.09.2014 Date of order :12.01.2016 MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. :659 OF 2014 IN COMPLAINT CASE NO.: 167 OF 2010 DISTRICT CONSUMER FORUM : LATUR.

1. Manager, Dharia Infrastructure Development Pvt.Ltd., "Indu Niwas", 43, Housing society, Off.Senapati Bapat Road, Shivaji Nagar, Pune-411 016.

Through its Authorised Signatory, Shri.Shardul Vijay Pardeshi, R/o Aryan Foundation, Pune Road, Solapur - 413 001.

CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

Smt.Uma S.Bora, Hon`ble Member.

Present : Adv.U.N.Shete for appellants, Adv.U.M.Deshpande for respondent.

2 F.A..No.:659/2014

O R A L JUDGMENT (Delivered on 12th January 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

1. Challenge in this appeal is the judgment and order dated 2.9.2014 passed by District Consumer Forum Latur partly allowing complainant's claim in consumer complaint No.167/2010 directing appellants/opponents 1 & 2 to pay to the respondent/complainant amount of Rs.18,65,000/- towards cost of the machine and further compensation Rs.5000/- and Rs.3000/- more towards cost of the proceedings.

(For the sake of brevity appellants are hereinafter referred as opponents and respondent Shri.Pandurang Pawar as the complainant)

2. Brief facts giving rise to this appeal are that:-

Opponent No.1 Dhariya Infrastructure Development Pvt.Ltd. is a dealer of opponent No.2 L & T Construction Equipment Pvt.Ltd. who manufactures equipments including L & T 770 loader backhoe HD excavator machine. Complainant Mr.Pandurang Pawar was an educated unemployed. Therefore in the year 2009 he had decided to start business for his livelihood. Therefore he approached opponent No.1 and purchased the loader excavator machine for a consideration of Rs.18,65,000/-. One year warranty was given by opponent No.1. However, no warranty card was issued. One Ashok Ram Patil, operator who was certified by opponent No.2 manufacturing company was engaged for operating the machine. However, when the machine was used for excavation work, within two days its wheel tyres were cracked. Thereafter within one month loader was started creating problems and was not working properly. Therefore complainant made complaint with opponent No.1 dealer. On receiving his complaint, the technician and representative of opponent No.1 visited and inspected the machine and gave service report. However, problems in 2 F.A..No.:659/2014 O R A L JUDGMENT (Delivered on 12th January 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

1. Challenge in this appeal is the judgment and order dated 2.9.2014 passed by District Consumer Forum Latur partly allowing complainant's claim in consumer complaint No.167/2010 directing appellants/opponents 1 & 2 to pay to the respondent/complainant amount of Rs.18,65,000/- towards cost of the machine and further compensation Rs.5000/- and Rs.3000/- more towards cost of the proceedings.

(For the sake of brevity appellants are hereinafter referred as opponents and respondent Shri.Pandurang Pawar as the complainant)

2. Brief facts giving rise to this appeal are that:-

Opponent No.1 Dhariya Infrastructure Development Pvt.Ltd. is a dealer of opponent No.2 L & T Construction Equipment Pvt.Ltd. who manufactures equipments including L & T 770 loader backhoe HD excavator machine. Complainant Mr.Pandurang Pawar was an educated unemployed. Therefore in the year 2009 he had decided to start business for his livelihood. Therefore he approached opponent No.1 and purchased the loader excavator machine for a consideration of Rs.18,65,000/-. One year warranty was given by opponent No.1. However, no warranty card was issued. One Ashok Ram Patil, operator who was certified by opponent No.2 manufacturing company was engaged for operating the machine. However, when the machine was used for excavation work, within two days its wheel tyres were cracked. Thereafter within one month loader was started creating problems and was not working properly. Therefore complainant made complaint with opponent No.1 dealer. On receiving his complaint, the technician and representative of opponent No.1 visited and inspected the machine and gave service report. However, problems in 2 F.A..No.:659/2014 O R A L JUDGMENT (Delivered on 12th January 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

1. Challenge in this appeal is the judgment and order dated 2.9.2014 passed by District Consumer Forum Latur partly allowing complainant's claim in consumer complaint No.167/2010 directing appellants/opponents 1 & 2 to pay to the respondent/complainant amount of Rs.18,65,000/- towards cost of the machine and further compensation Rs.5000/- and Rs.3000/- more towards cost of the proceedings.

(For the sake of brevity appellants are hereinafter referred as opponents and respondent Shri.Pandurang Pawar as the complainant)

2. Brief facts giving rise to this appeal are that:-

Opponent No.1 Dhariya Infrastructure Development Pvt.Ltd. is a dealer of opponent No.2 L & T Construction Equipment Pvt.Ltd. who manufactures equipments including L & T 770 loader backhoe HD excavator machine. Complainant Mr.Pandurang Pawar was an educated unemployed. Therefore in the year 2009 he had decided to start business for his livelihood. Therefore he approached opponent No.1 and purchased the loader excavator machine for a consideration of Rs.18,65,000/-. One year warranty was given by opponent No.1. However, no warranty card was issued. One Ashok Ram Patil, operator who was certified by opponent No.2 manufacturing company was engaged for operating the machine. However, when the machine was used for excavation work, within two days its wheel tyres were cracked. Thereafter within one month loader was started creating problems and was not working properly. Therefore complainant made complaint with opponent No.1 dealer. On receiving his complaint, the technician and representative of opponent No.1 visited and inspected the machine and gave service report. However, problems in 2 F.A..No.:659/2014 O R A L JUDGMENT (Delivered on 12th January 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.

1. Challenge in this appeal is the judgment and order dated 2.9.2014 passed by District Consumer Forum Latur partly allowing complainant's claim in consumer complaint No.167/2010 directing appellants/opponents 1 & 2 to pay to the respondent/complainant amount of Rs.18,65,000/- towards cost of the machine and further compensation Rs.5000/- and Rs.3000/- more towards cost of the proceedings.

(For the sake of brevity appellants are hereinafter referred as opponents and respondent Shri.Pandurang Pawar as the complainant)

2. Brief facts giving rise to this appeal are that:-

Opponent No.1 Dhariya Infrastructure Development Pvt.Ltd. is a dealer of opponent No.2 L & T Construction Equipment Pvt.Ltd. who manufactures equipments including L & T 770 loader backhoe HD excavator machine. Complainant Mr.Pandurang Pawar was an educated unemployed. Therefore in the year 2009 he had decided to start business for his livelihood. Therefore he approached opponent No.1 and purchased the loader excavator machine for a consideration of Rs.18,65,000/-. One year warranty was given by opponent No.1. However, no warranty card was issued. One Ashok Ram Patil, operator who was certified by opponent No.2 manufacturing company was engaged for operating the machine. However, when the machine was used for excavation work, within two days its wheel tyres were cracked. Thereafter within one month loader was started creating problems and was not working properly. Therefore complainant made complaint with opponent No.1 dealer. On receiving his complaint, the technician and representative of opponent No.1 visited and inspected the machine and gave service report. However, problems in 3 F.A..No.:659/2014 entire hydraulic parts are not solved due to manufacturing defects and therefore complainant could not carry out his business and thereby sustained loss. He was also required to pay amount of interest to the bank from whom he had borrowed the loan. Therefore lastly complainant consulted the expert of excavator and by inspecting machine expert informed him that there is manufacturing defect etc. Therefore alleging deficiency in service on the part of opponents he filed consumer complaint claiming refund of amount of purchase price, insurance amount with interest total Rs.96,466/- and compensation Rs.30,000/- towards mental agony and Rs.5000/- more towards cost of the proceeding. In the alternatively he claimed replacement of machine etc.

3. In response to the complaint notice, opponent Nos 1 & 2 appeared before the Forum and by their written version resisted the complaint on the following among other grounds:-

They did not dispute that opponent No.1 is a dealer of opponent No.2 manufacturing company and complainant purchased the machine from opponent No.1 dealer for a consideration of Rs.18,65,000/-. However, they have categorically denied that there is manufacturing defect in the machine. They have also challenged maintainability of the complaint contending that since complainant has purchased machine for commercial purpose, he is not their consumer as he does not fall under the definition of 'consumer' as defined U/s 2(1)(d) of Consumer Protection Act . They did not dispute that complainant made complaint from time to time. But they have submitted that whenever complainant made complaints, they were entertained and provided service by making repairs of machine through their technician etc. They have denied that warranty for one year was given etc. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.

3 F.A..No.:659/2014

entire hydraulic parts are not solved due to manufacturing defects and therefore complainant could not carry out his business and thereby sustained loss. He was also required to pay amount of interest to the bank from whom he had borrowed the loan. Therefore lastly complainant consulted the expert of excavator and by inspecting machine expert informed him that there is manufacturing defect etc. Therefore alleging deficiency in service on the part of opponents he filed consumer complaint claiming refund of amount of purchase price, insurance amount with interest total Rs.96,466/- and compensation Rs.30,000/- towards mental agony and Rs.5000/- more towards cost of the proceeding. In the alternatively he claimed replacement of machine etc.

3. In response to the complaint notice, opponent Nos 1 & 2 appeared before the Forum and by their written version resisted the complaint on the following among other grounds:-

They did not dispute that opponent No.1 is a dealer of opponent No.2 manufacturing company and complainant purchased the machine from opponent No.1 dealer for a consideration of Rs.18,65,000/-. However, they have categorically denied that there is manufacturing defect in the machine. They have also challenged maintainability of the complaint contending that since complainant has purchased machine for commercial purpose, he is not their consumer as he does not fall under the definition of 'consumer' as defined U/s 2(1)(d) of Consumer Protection Act . They did not dispute that complainant made complaint from time to time. But they have submitted that whenever complainant made complaints, they were entertained and provided service by making repairs of machine through their technician etc. They have denied that warranty for one year was given etc. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.

3 F.A..No.:659/2014

entire hydraulic parts are not solved due to manufacturing defects and therefore complainant could not carry out his business and thereby sustained loss. He was also required to pay amount of interest to the bank from whom he had borrowed the loan. Therefore lastly complainant consulted the expert of excavator and by inspecting machine expert informed him that there is manufacturing defect etc. Therefore alleging deficiency in service on the part of opponents he filed consumer complaint claiming refund of amount of purchase price, insurance amount with interest total Rs.96,466/- and compensation Rs.30,000/- towards mental agony and Rs.5000/- more towards cost of the proceeding. In the alternatively he claimed replacement of machine etc.

3. In response to the complaint notice, opponent Nos 1 & 2 appeared before the Forum and by their written version resisted the complaint on the following among other grounds:-

They did not dispute that opponent No.1 is a dealer of opponent No.2 manufacturing company and complainant purchased the machine from opponent No.1 dealer for a consideration of Rs.18,65,000/-. However, they have categorically denied that there is manufacturing defect in the machine. They have also challenged maintainability of the complaint contending that since complainant has purchased machine for commercial purpose, he is not their consumer as he does not fall under the definition of 'consumer' as defined U/s 2(1)(d) of Consumer Protection Act . They did not dispute that complainant made complaint from time to time. But they have submitted that whenever complainant made complaints, they were entertained and provided service by making repairs of machine through their technician etc. They have denied that warranty for one year was given etc. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.

3 F.A..No.:659/2014

entire hydraulic parts are not solved due to manufacturing defects and therefore complainant could not carry out his business and thereby sustained loss. He was also required to pay amount of interest to the bank from whom he had borrowed the loan. Therefore lastly complainant consulted the expert of excavator and by inspecting machine expert informed him that there is manufacturing defect etc. Therefore alleging deficiency in service on the part of opponents he filed consumer complaint claiming refund of amount of purchase price, insurance amount with interest total Rs.96,466/- and compensation Rs.30,000/- towards mental agony and Rs.5000/- more towards cost of the proceeding. In the alternatively he claimed replacement of machine etc.

3. In response to the complaint notice, opponent Nos 1 & 2 appeared before the Forum and by their written version resisted the complaint on the following among other grounds:-

They did not dispute that opponent No.1 is a dealer of opponent No.2 manufacturing company and complainant purchased the machine from opponent No.1 dealer for a consideration of Rs.18,65,000/-. However, they have categorically denied that there is manufacturing defect in the machine. They have also challenged maintainability of the complaint contending that since complainant has purchased machine for commercial purpose, he is not their consumer as he does not fall under the definition of 'consumer' as defined U/s 2(1)(d) of Consumer Protection Act . They did not dispute that complainant made complaint from time to time. But they have submitted that whenever complainant made complaints, they were entertained and provided service by making repairs of machine through their technician etc. They have denied that warranty for one year was given etc. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.

4 F.A..No.:659/2014

4. On hearing both side and considering evidence on record District Consumer Forum held that complainant falls under the definition of consumer and therefore complaint is maintainable. Further it is held that opponent committed deficiency in service by selling machine having manufacturing defect etc. In keeping with these findings Dist.Consumer Forum partly allowed the complainant's claim as noted above.

5. Feeling aggrieved by that judgment and order, opponent came to this Commission in appeal.

6. We heard learned counsel for both side and perused the written notes of argument submitted by them. We have also perused the copy of impugned judgment and order, copies of complaint, written version, evidence affidavit of parties and also their witnesses. We have also perused the photographs of the machine which were obtained by the complainant. We have perused the copies of job cards and other copies.

7. Opponents have assailed the impugned judgment and order mainly on three grounds viz. (i) territorial jurisdiction of the District Consumer Forum (ii) maintainability of the complaint and (iii) alleged manufacturing defect in the machine. Therefore let us consider the above points.

5. Feeling aggrieved by that judgment and order, opponent came to this Commission in appeal.

8. As far as jurisdiction of the District Consumer Forum is concerned, Mr.U.N.Shete learned counsel for the opponent/appellant submitted that since undisputedly complainant has purchased machine from opponent No.1 who carries on his business of dealership at Solapur, District Consumer Forum Latur has no jurisdiction to entertain the complaint. It is further submitted that there is no branch office of opponent at Latur. Complainant also got repaired the machine at Solapur service centre of opponent No.1 and 5 F.A..No.:659/2014 therefore no cause of action arose within territorial jurisdiction of District Consumer Forum Latur. To which it is denied by Mr.U.M.Deshpande learned counsel for the complainant and submitted that since complainant is carrying on his business in Latur district and the problems i.e. defects in machine noticed in Latur district, cause of action arose within the territorial jurisdiction of Latur only and therefore consumer complaint is maintainable.

9. Considering the undisputed fact that complainant is carrying on his business within the territorial jurisdiction of District Consumer Forum Latur, we find much force in the submission of Mr.Deshpande learned counsel for the complainant. When the complainant noticed alleged manufacturing defect in the machine while operating machine in Latur District it cannot be disputed that cause of action arose within the territorial jurisdiction of Latur District Consumer Forum. Moreover on perusal of copy of written version it reveals that this point was not raised by opponents in their written version. It is well settled law that any preliminary objection about maintainability of the complaint specifically territorial and pecuniary jurisdiction it required to be raised at initial stage of the proceeding. But since this objection is being not raised by opponent before District Consumer Forum, the same cannot be considered in appeal. Therefore on any count objection pertained to the jurisdiction of the Forum is being not sustainable, cannot be considered.

10. As far as contention of opponent that complainant has purchased machine for commercial purpose and therefore consumer complaint is not maintainable is concerned, it is submitted by Mr.U.N.Shete learned counsel for the opponent that though the complainant was educated unemployed and purchased the machine in question for running business, the same cannot be considered for his livelihood as according to complainant himself he is operating machine by engaging driver/operator Mr.Ashok Patil. But District 5 F.A..No.:659/2014 therefore no cause of action arose within territorial jurisdiction of District Consumer Forum Latur. To which it is denied by Mr.U.M.Deshpande learned counsel for the complainant and submitted that since complainant is carrying on his business in Latur district and the problems i.e. defects in machine noticed in Latur district, cause of action arose within the territorial jurisdiction of Latur only and therefore consumer complaint is maintainable.

10. As far as contention of opponent that complainant has purchased machine for commercial purpose and therefore consumer complaint is not maintainable is concerned, it is submitted by Mr.U.N.Shete learned counsel for the opponent that though the complainant was educated unemployed and purchased the machine in question for running business, the same cannot be considered for his livelihood as according to complainant himself he is operating machine by engaging driver/operator Mr.Ashok Patil. But District 6 F.A..No.:659/2014 Consumer Forum committed serious error in holding that complainant has purchased machine for running his business for livelihood and not for earning income etc.

11. Per contra, Mr.U.M.Deshpande learned counsel appearing for the complainant submitted that though operator Mr.Ashok Patil was engaged by complainant for operating machine he was engaged temporarily for a limited period as complainant was not knowing operation of the machine or he was not expert. According to Mr.Deshpande learned counsel for the complainant, as complainant was educated unemployed and he was required to start his business for his livelihood, transaction of purchasing the machine cannot be considered as commercial transaction. He has also tried to support his submission by relying on the decision dated 20th July 2012 of Hon'ble National Commission in case of Action Construction Equipment Ltd. -Vs- Sri Bablu Mridha in which it is held by Hon'ble National Commission that "if buyer takes the assistance of one or two persons to assist/ help him in operating the vehicle or machinery he does not cease to be a consumer". It is further observed that " since respondent is having only two machines and same are being used by the respondent for earning his livelihood, by no stretch it can be said that respondent is engaged in commercial activities". To which it is denied by Mr.U.N.Shete learned counsel appearing for the opponent and submitted that since undisputedly the complainant has engaged the operator Mr.Ashok Ram Patil and said operator himself is being operating the machine, contention of complainant that he himself running business for the purpose of earning his livelihood, cannot be sustained. He has also supported his contention by relying on the decision of Hon'ble Supreme Court in case of Laxmi Engineering Works -Vs- P.S.G.Industrial Institute, II(1995) CPJ 1(SC), in which Hon'ble Apex Court held that person who purchased vehicle or machine and operate it by engaging operator or driver would not be a consumer. This point is also clarified by Hon'ble Apex Court by giving 6 F.A..No.:659/2014 Consumer Forum committed serious error in holding that complainant has purchased machine for running his business for livelihood and not for earning income etc.

11. Per contra, Mr.U.M.Deshpande learned counsel appearing for the complainant submitted that though operator Mr.Ashok Patil was engaged by complainant for operating machine he was engaged temporarily for a limited period as complainant was not knowing operation of the machine or he was not expert. According to Mr.Deshpande learned counsel for the complainant, as complainant was educated unemployed and he was required to start his business for his livelihood, transaction of purchasing the machine cannot be considered as commercial transaction. He has also tried to support his submission by relying on the decision dated 20th July 2012 of Hon'ble National Commission in case of Action Construction Equipment Ltd. -Vs- Sri Bablu Mridha in which it is held by Hon'ble National Commission that "if buyer takes the assistance of one or two persons to assist/ help him in operating the vehicle or machinery he does not cease to be a consumer". It is further observed that " since respondent is having only two machines and same are being used by the respondent for earning his livelihood, by no stretch it can be said that respondent is engaged in commercial activities". To which it is denied by Mr.U.N.Shete learned counsel appearing for the opponent and submitted that since undisputedly the complainant has engaged the operator Mr.Ashok Ram Patil and said operator himself is being operating the machine, contention of complainant that he himself running business for the purpose of earning his livelihood, cannot be sustained. He has also supported his contention by relying on the decision of Hon'ble Supreme Court in case of Laxmi Engineering Works -Vs- P.S.G.Industrial Institute, II(1995) CPJ 1(SC), in which Hon'ble Apex Court held that person who purchased vehicle or machine and operate it by engaging operator or driver would not be a consumer. This point is also clarified by Hon'ble Apex Court by giving 7 F.A..No.:659/2014 many illustrations. Therefore considering undisputed fact that complainant who purchased heavy machine worth more than Rs.18 lakhs and operating the same through operator Ashok Patil continuously since the date of receipt of delivery of machine and carrying on his business, it cannot be disputed that complainant has purchased the machine for commercial purpose and not for earning his livelihood. In view of the authority of Hon'ble Apex Court in the case of Laxmi Engineering Works (supra), the decision of National Commission in case of Action Construction Equipment Ltd.(Supra) cannot be relied on. Therefore arguments advanced by Mr.U.M.Deshpande learned counsel for the complainant are being not sustainable, cannot be accepted.

12. Thus it is obvious that since complainant has purchased the machine for commercial purpose to earn profit and not for earning his livelihood only, he does not fall under the definition of 'consumer' as defined U/s 2(1)(d) of Consumer Protection Act. Therefore consumer complaint is being not maintainable, would not have entertained by District Consumer Forum. But it appears from the copy of impugned judgment and order that District Consumer Forum without appreciating the undisputed facts and evidence on record properly wrongly held that complainant has purchased the machine for earning his livelihood and therefore consumer complaint is maintainable. Such finding of District Consumer Forum are being erroneous, cannot be sustained.

13. In view of the above findings holding that consumer complaint is not maintainable, other points including deficiency in service on the part of opponent providing machine having manufacturing defect do not survive. Even otherwise there is no cogent evidence to show that machine is having manufacturing defect. However, on perusal of copy of impugned judgment and order it reflects that District Consumer Forum has relying on the evidence of mechanic named Mr.Sayyad 7 F.A..No.:659/2014 many illustrations. Therefore considering undisputed fact that complainant who purchased heavy machine worth more than Rs.18 lakhs and operating the same through operator Ashok Patil continuously since the date of receipt of delivery of machine and carrying on his business, it cannot be disputed that complainant has purchased the machine for commercial purpose and not for earning his livelihood. In view of the authority of Hon'ble Apex Court in the case of Laxmi Engineering Works (supra), the decision of National Commission in case of Action Construction Equipment Ltd.(Supra) cannot be relied on. Therefore arguments advanced by Mr.U.M.Deshpande learned counsel for the complainant are being not sustainable, cannot be accepted.

13. In view of the above findings holding that consumer complaint is not maintainable, other points including deficiency in service on the part of opponent providing machine having manufacturing defect do not survive. Even otherwise there is no cogent evidence to show that machine is having manufacturing defect. However, on perusal of copy of impugned judgment and order it reflects that District Consumer Forum has relying on the evidence of mechanic named Mr.Sayyad 8 F.A..No.:659/2014 Salim from Nawab Mechanical Works, Latur held that said mechanic is expert and by his evidence complainant has proved that machine in question is having manufacturing defect etc. when undisputedly the said mechanic is not qualified though having 30-40 years experience in doing mechanic job, repairing machines including L & T loader as stated by himself in his affidavit, he cannot be considered as expert. Therefore no weightage can be given to the evidence of said mechanic.

14. Apart from above facts undisputedly opponents have provided free services for repairing of the machine by attending the complaints of complainant through service centre. The copies of job card also fortify these facts. It reflects that whenener the complainant made complaint with opponent No.1, machine was repaired and by repairing machine it was operated and used for carrying on the business of complainant for a period of more than 8 months. Copies of job cards further reflect that machine was operated for 1485 hours. If really there was manufacturing defect in the machine in our view it could not be possible for complainant to operate it through his operator for 1485 hours. Therefore on any count, it is difficult to accept the contention of complainant that there is manufacturing defect in the machine. But it appears from the copy of impugned judgment and order that District Consumer Forum merely relying on the evidence of mechanic Mr.Sayyad Salim and photographs wrongly held that complainant has proved that there is mechanical defects in the machine and opponents have committed deficiency in service by selling defective machine to the complainant. Mr.Deshpande learned counsel for the complainant also relying on the Xerox copies of photographs of the machine which are obtained by complainant from time to him made feeble attempt to show that there is manufacturing defect in the machine. But we find no merit in the submission of Mr.Deshpande advocate appearing for the complainant. Because as already stated above mechanic Sayyad Salim is being not expert, no weighate can be given to his evidence to prove manufacturing defect in 8 F.A..No.:659/2014 Salim from Nawab Mechanical Works, Latur held that said mechanic is expert and by his evidence complainant has proved that machine in question is having manufacturing defect etc. when undisputedly the said mechanic is not qualified though having 30-40 years experience in doing mechanic job, repairing machines including L & T loader as stated by himself in his affidavit, he cannot be considered as expert. Therefore no weightage can be given to the evidence of said mechanic.

14. Apart from above facts undisputedly opponents have provided free services for repairing of the machine by attending the complaints of complainant through service centre. The copies of job card also fortify these facts. It reflects that whenener the complainant made complaint with opponent No.1, machine was repaired and by repairing machine it was operated and used for carrying on the business of complainant for a period of more than 8 months. Copies of job cards further reflect that machine was operated for 1485 hours. If really there was manufacturing defect in the machine in our view it could not be possible for complainant to operate it through his operator for 1485 hours. Therefore on any count, it is difficult to accept the contention of complainant that there is manufacturing defect in the machine. But it appears from the copy of impugned judgment and order that District Consumer Forum merely relying on the evidence of mechanic Mr.Sayyad Salim and photographs wrongly held that complainant has proved that there is mechanical defects in the machine and opponents have committed deficiency in service by selling defective machine to the complainant. Mr.Deshpande learned counsel for the complainant also relying on the Xerox copies of photographs of the machine which are obtained by complainant from time to him made feeble attempt to show that there is manufacturing defect in the machine. But we find no merit in the submission of Mr.Deshpande advocate appearing for the complainant. Because as already stated above mechanic Sayyad Salim is being not expert, no weighate can be given to his evidence to prove manufacturing defect in 9 F.A..No.:659/2014 the machine if any. Further from the photographs nobody can point out the manufacturing defect in the machine. Even in the absence of negative of photograph, Xerox copies of the photographs are being not admissible cannot be considered.

15. For the foregoing reasons it is obvious that complainant failed to prove that he has purchased the machine for running his business to earn for his livelihood and further he failed to prove that there is manufacturing defect in the machine and opponents have committed deficiency in service. But District Consumer Forum has committed error in answering both these question in favour of complainant which cannot be sustained. Therefore appeal deserves to be allowed by setting aside the impugned judgment and order.

16. In the result, appellant succeeds. Hence the following order.

                                O   R     D   E    R


   1. Appeal is allowed and impugned          judgment and order is set
       aside.

2. Consumer complaint No.167/2010 stands dismissed.

3. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.

4. Copies of the judgment be supplied to both the parties.

   Sd/-                                                Sd/-
Uma S.Bora,                                    S.M.Shembole,
 Member                                 Presiding Judicial Member


Mane
                                     9                         F.A..No.:659/2014

the machine if any. Further from the photographs nobody can point out the manufacturing defect in the machine. Even in the absence of negative of photograph, Xerox copies of the photographs are being not admissible cannot be considered.

16. In the result, appellant succeeds. Hence the following order.

                                O   R     D   E    R


   1. Appeal is allowed and impugned          judgment and order is set
       aside.

2. Consumer complaint No.167/2010 stands dismissed.

3. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.

4. Copies of the judgment be supplied to both the parties.

   Sd/-                                                Sd/-
Uma S.Bora,                                    S.M.Shembole,
 Member                                 Presiding Judicial Member


Mane
                                     9                         F.A..No.:659/2014

16. In the result, appellant succeeds. Hence the following order.

                                O   R     D   E    R


   1. Appeal is allowed and impugned          judgment and order is set
       aside.

2. Consumer complaint No.167/2010 stands dismissed.

3. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.

4. Copies of the judgment be supplied to both the parties.

   Sd/-                                                Sd/-
Uma S.Bora,                                    S.M.Shembole,
 Member                                 Presiding Judicial Member


Mane
                                     9                         F.A..No.:659/2014

16. In the result, appellant succeeds. Hence the following order.

                                O   R     D   E    R


   1. Appeal is allowed and impugned          judgment and order is set
       aside.

2. Consumer complaint No.167/2010 stands dismissed.

3. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.

4. Copies of the judgment be supplied to both the parties.

   Sd/-                                                Sd/-
Uma S.Bora,                                    S.M.Shembole,
 Member                                 Presiding Judicial Member


Mane

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