O r d e r

1. Present appeal has been filed on behalf of appellant/opposite party-Kirloskar Oil Engines Ltd. for setting aside the order dated 17.10.2015 passed by the learned District Consumer Disputes Redressal Forum, Patna in the complaint case no. 145 of 2010 whereby and whereunder the Ld. Forum has directed appellant to return the price of the generator set i.e Rs. 3,66,250/- to the complainant within two months with interest @ 9% per annum from the date of filing of the case at Ara i.e 12.11.2007 till its final payment failing which interest @12% per annum shall become payable and further directed opposite party no. 1,2 & 3 to pay Rs. 30,000/- towards compensation and litigation cost within two months.
2. Briefly stated the facts of the case is that complainant had purchased on 08.03.2006 Kirloskar Diesel generator set manufactured by opposite party no. 1 after paying price of Rs. 3,66,250/- to its authorized dealer namely Apex Power & Engineers- opposite party no. 2 to earn his livelihood from the loan provided by Punjab National Bank-Opposite party no. 4. Opposite party no. 1 issued a warranty card of 18 months warranty for generator set as well as alternator.
3. After purchase mechanic of opposite party no. 2 installed the generator set on 11.04.2006 in the premises of Punjab National Bank and generator set was commissioned and found to be working satisfactorily. The generator set was installed at the Punjab National Bank for supply of electricity during load shedding for which agreement was entered between Punjab National Bank (opposite party no. 4) and complainant for which Rs. 24,000/- per month was to be paid by the PNB (Opposite party no. 4) to the complainant.
4. The generator set stopped working on 04.07.2007 due to fault of alternator as a result of which no electricity could be supplied to the bank for which complaint was made by complainant to opposite party no. 2 who referred him to opposite party no. 3 the authorized service center of opposite party no. 1 and his complaint was registered.
5. Opposite party no. 3 send service mechanics Dhananjay Pandey and Guddu Pandey on 05.07.2007 to Ara to inspect the generator set who inspected and found that armature of alternator was burnt which could be repaired at Patna. On 18.07.2007 both mechanics came to Ara and took away alternator on pickup van and complainant also accompanied them and paid Rs. 2,000/- as cost of transportation from Ara to Patna. Both generator set and alternator were within warranty period. After repair of alternator opposite party no. 3 asked complainant to pay Rs. 24,000/- as cost of repair which was refused by the complainant as same was within warranty period.
6. Complainant was paid Rs. 24,000/- as monthly rent by opposite party no. 4-bank but due to non-supply of electricity payment was not made since 30.06.2007 causing pecuniary loss to the complainant and complainant is suffering said loss every month from 30.06.2007.
7. Complainant filed consumer case before the District Consumer Forum, Ara on 12.11.2007 but same was withdrawn on 28.03.2010 on ground of lack of territorial jurisdiction and thereafter, complainant filed consumer complaint case in the District Consumer Forum, Patna in whose jurisdiction generator set was purchased from opposite party no. 2 and after fault in alternator same is lying with opposite party no. 3 for repair.
8. Notices were issued to the opposite parties and opposite party no. 1 appeared and filed its written statement however, opposite party no. 2 and 3 did not appear inspite of valid service of notice.
9. Opposite party no. 1 in its written statement stated that complaint case was time barred. The complaint is with respect to defect in alternator and not against the generator set engine manufactured by opposite party no. 1. The relationship between opposite party no. 1 and opposite party no. 2 is on principal to principal basis and not on agency basis. There is no privity of contract between the complainant and the opposite party no. 1. DG set was purchased for commercial purpose as such complainant was not a consumer as such present complaint case is not maintainable.
10. The District Consumer Forum after hearing the parties and considering the materials available on records held that complainant is a consumer as he had purchased the DG set to earn his livelihood as such he comes within the definition of consumer. On 05.07.2007 the mechanic of opposite party no. 3 inspected the set and found that armature of the alternator is burnt and on 18.07.2007 took away generator set on pickup van to service center of opposite party no. 3 for which complainant paid Rs. 2,000/- as transportation cost. After repairing the alternator the manager of opposite party no. 3 demanded Rs. 24,000/- which was refused by the complainant on the ground that generator was under warranty period.
11. The District Consumer Forum further held that opposite party no. 2 is authorized agent of opposite party no. 1 as such both are liable to repair/replace the generator set /alternator set during period of warranty and warranty card has been issued by opposite party no. 1 as contained in annexure-6 according to which generator set /alternator set were under warranty for 18 months but inspite of alternator becoming defective Rs. 24,000/- was demanded as repair cost during period of warranty which amounts to deficiency in service and directed opposite party no. 1 to refund the price of generator set i.e Rs. 3,66,250/- within two months with interest @9% per annum from the date of filing of the case before the District Consumer Forum Ara i.e 12.11.2007 failing which interest @12% per annum shall become payable. Complainant was also directed to return the generator set to opposite party no. 1 at the time of receipt of aforesaid amount. The District Consumer Forum further directed  opposite party no. 1 to 3 to pay Rs. 30,000/- as compensation and cost of litigation within two months.
12. Aggrieved by order dated 21.08.2015 present appeal has been filed on behalf of opposite party no. 1- Kirloskar Oil Engines Ltd. Pune before this State Commission.
13. It is submitted on behalf of counsel for the appellant that complainant had alleged defect in alternator and not against the generator set manufactured by the appellant. The transaction between complainant and opposite party no. 2 is independent transaction and does not involve opposite party no. 1 /appellant. The relation between appellant/opposite party no. 1 and opposite party no. 2 is on principal to principal basis and not on agency basis. There is no privity of contract between the opposite party no. 1 and the complainant. Complainant had purchased the generator set for commercial purpose as such complainant is not a consumer within the meaning of Consumer Act.
14. On the other hand, counsel for the respondent have supported the impugned order and submitted that same has been passed after due consideration and proper appreciation of evidence on record and needs no interference in appeal.
15. Heard, the parties.
16. Complainant had purchased the generator set to earn his livelihood as such he comes within the definition of Consumer. The District Consumer Forum has rightly held the complaint case to be maintainable.
17. Appellant/opposite party no. 1 has nowhere denied that opposite party no. 2 is not his authorized agent or opposite party no. 3 is not his authorized service station as such opposite party no. 1 is equally liable for any deficiency in service of opposite party no. 2 & 3 being agent of opposite party no. 1
18. Warranty certificate issued by opposite party no. 1 which grants warranty of generator set and alternator set for 18 months has not been refuted by opposite party no. 1 either in its written statement or in memo of appeal, as such there was warranty for 18 months on generator set and alternator set provided by opposite party no. 1 and during warranty period opposite party no. 1, 2 & 3 were liable to repair /replace any defect in generator set which they failed to do and no explanation has been provided for demanding Rs. 24,000/- for repairing alternator/armature during period of warranty.
19. The relation between appellant/opposite party no. 1 and opposite party no. 2 is in the nature of principal and agent and not on principal to principal basis.  Copy of agreement between O.P. no. 1 and O.P. no. 2 has not been placed on record indicating any clause which states that agreement is on principal to principal basis and not on principal and agent basis as such the contention of opposite party no. 1 /appellant that nature of agreement between opposite party no. 1 and opposite party no. 2  is on principal to principal basis is not acceptable.
20. The dispute between the parties is only with respect to payment of cost of repair of armature for Rs. 24,000/- during warranty period which complainant refused to pay as defect was within warranty period and opposite party no. 1, 2 & 3 were liable to replace /repair it free of cost in terms of warranty.
21. The generator set was commissioned on 11.04.2006 by the mechanic of opposite party no. 2 and it was working satisfactorily and there was no complain which is apparent from service report dated 11.04.2006. The complaint was made on 04.07.2007 i.e after more than one year from the date of its commissioning as such there can not be any manufacturing defect. The complaint was immediately attended by opposite party no. 3 and two mechanics were sent from Patna to Ara to inspect the generator set who after inspection found that armature of alternator was burnt and thereafter, brought the alternator from Ara to Patna for its repair. The cost of repair was Rs. 24,000/- which opposite party no. 3 demanded and was refused to be paid by complainant as such dispute is with respect to payment of Rs. 24,000/- only.
22. From the facts it is apparent that there was no complaint with respect to functioning of generator set as such there was no manufacturing defect in generator set and there was no occasion for the District Consumer Forum to direct appellant /opposite party no. 1 who is the manufacturer of generator set to replace the generator set by another generator set or to pay the price of new generator set as such direction of District Consumer Forum to said extent is not sustainable.
23. Dispute was with respect to the payment of repair cost of armature in alternator set for Rs. 24,000/- which was demanded by opposite party no. 3 /authorized service center from complainant which was refused to be paid by the complainant as defect was within warranty period. During warranty period opposite party no. 1, 2 & 3 are jointly and severally liable to replace /repair the defective part of the alternator set free of cost and demand of Rs. 24,000/- by opposite party no. 3 as repair cost during warranty period amounts to deficiency in service and unfair trade practice.
24. Complainant ought to have paid the repair cost of Rs. 24,000/- and get his generator set working as he was getting Rs. 24,000/- per month from the bank as rent for electric supply and thereafter filed Consumer complaint case alleging deficiency in service and unfair trade practice adopted by opposite parties for which he could have been adequately compensated. Leaving back alternator at the service center for non payment of Rs. 24,000/- and suffering loss of Rs. 24,000/- per month can not be said to be a prudent and wise decision.
25. The generator set was commissioned on 11.04.2006 and it worked smoothly till 30.06.2007 i.e 14 months as such complainant earned from generator 24,000x14= 3 lacs 36 thousand as such there was no occasion for District Consumer Commission to direct payment of Rs. 3,66,250/- with interest. Complainant in his complaint petition had prayed for repair of alternator set within specified period and/or replace the generator set with new generator set as such there was no occasion for the District Consumer Forum to direct payment of price of generator set.
26. For the reasons as stated above, the judgment and order dated 17.10.2015 passed by learned District Consumer Forum, Patna in Complaint case no. 145 of 2010 is modified as follows:

i). as there is no manufacturing defect in the generator set as such opposite party no. 1 /manufacturer of the generator set is not liable either to replace the generator set or to pay the price of the generator set and direction to said effect by District Consumer Commission is set aside.

ii). Opposite party no. 1 is the manufacturer of generator and alternator set for which warranty certificate was issued by opposite party no. 1 as such opposite party no. 1 is liable to replace /repair any defective part free of cost during warranty period for which opposite party no. 1 did not take any steps to get the defective part of the alternator repaired without any cost which amounts to deficiency in service causing mental and physical harassment to the complainant as such opposite party no. 1 /appellant shall pay compensation of Rs. 50,000/- to the complainant for the suffering and loss suffered by complainant.

iii). Opposite party no. 2 is the authorized dealer of the opposite party no. 1 who sold the generator set to the complainant and there is no specific allegation of any deficiency in service as such he is absolved from paying any compensation to complainant.

iv). Opposite party no. 3 is the authorized service center of opposite party no. 1 and he was supposed to repair the armature of alternator without any repair cost as alternator was within warranty period but he demanded Rs. 24,000/- as cost of repair which amounts to deficiency in service and unfair trade practice as such opposite party no. 3 is directed to repair the alternator without any repair cost and hand over the repaired alternator to the complainant within 15 days from the date of receipt/production of a copy of order passed by this Commission. Opposite party no. 3 is further directed to pay compensation of Rs. 50,000/- for harassment and loss caused to complainant.

27.  With aforesaid modification and direction the appeal is disposed of.

(Md. Shamim Akhtar)                                                                                                        (Sanjay Kumar,J)

      Member                                                                                                                            President

Md. Fariduzzama