Per Shri Dhanraj Khamatkar, Hon’ble Member

These two appeals Nos.163 & 238/2010 take an exception to the order dated 27/10/2009 passed in consumer complaint No.694/2003 by District Consumer Forum, Central Mumbai.  Appeal No.163/2010 is filed by org. O.P.No.1/ Manufacturer and the appeal No.238/2010 is filed by org. O.P.No.2 in the original complaint.  The order challenged in both these appeals being the same, both these appeals are clubbed together and common order is passed. 

          Both these appellants have challenged the order on the ground of territorial jurisdiction and on the ground that the respondent is not a consumer and there is no manufacturing defect in the vehicle.

The facts in brief leading to these appeals can be summarised as under :-

            Respondent No.1/org. complainant in both these appeals is a partnership firm and one Mrs.Neeru Mittal and Mr.Vikram Mittal are the partners.  Appellant in Appeal No.163/2010 is manufacturer and appellant in Appeal No.238/2010 is the dealer.  The complainants had purchased Ambassador Car from the dealer i.e. National Garage for personal use on 30/06/1998 for consideration of `3,08,468/-.  The vehicle is registered with the RTO and registration number is DD-03B-0529.  The complainant took possession of the vehicle in July 1998.  It is the allegation of complainant that from the day number one, there were defects in the vehicle and the defects were communicated to the dealer and the dealer repaired the vehicle and sent back.  The complainant alleged that defects in the vehicle are of manufacturing and fundamental nature.  He sent communication to both the appellants from time to time.  As the appellants have neither repaired the vehicle to the satisfaction of the complainant nor replaced the vehicle, the complainant has filed a consumer complaint in the District Consumer Forum, Central Mumbai.  Forum below after hearing both the parties, partially allowed the complaint holding appellant Nos.1&2 jointly and severally responsible and directed the appellants to pay Rs.3,08,468/- with interest @ 6% p.a. from 30/06/1998 and also awarded cost of Rs.3,000/- which is to be paid jointly by the appellants vide order dated 27/10/2009.  It is against this order dated 27/10/2009, the present appeals are filed.

Admittedly, respondent/complainant has purchased the vehicle from the appellant in Appeal No.238/2010 and the appellant in Appeal No.163/2010 is the manufacturer.  It is the contention of the org. complainant that from the day one, he could not use the vehicle as there were problems in the vehicle.  The org. complainant had sent the vehicle to the appellants for repairs and the appellants have carried out the repairs.  The org. complainant has sent communication to the appellants from time to time.

          As regards jurisdiction, we are unable to accept the contention of the appellants as the office of both the O.Ps. is in Mumbai and hence, we hold that the org. complainant has rightly filed complaint in the Forum below.

          The Learned Counsel of the appellants have vehemently argued that the org. complainant has purchased the vehicle for M/s.Sophisticated Marble and Granite Industries and the org. complainant is one of the partners.  As the vehicle is purchased for M/s.Sophisticated Marble and Granite Industries, it is the contention of the Learned Counsel for the appellants that the org. complainant is not a consumer.  Section 2(1)(d)(i) of Consumer Protection Act,1986 gives definition of the word ‘Consumer’.  A consumer is “a person who buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of defer payment and includes any user of such goods other than the person, who buys such goods for consideration paid or promised or partly paid and partly promised or any system of defer payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose”.

          In the present case, vehicle is purchased by the Industrial Partnership Firm and sole object of said firm is commercial.  The org. complainant does not cover under the explanation given to the Consumer Protection Act, 1986 for commercial purpose.

          The Learned Counsels for the appellants have further drawn our attention to the fact that the org. complainant had not adduced any evidence to support that the vehicle has manufacturing defects.  They have drawn our attention to a report from Shroff & Company, Surveyors, Assessors & Valuers, Motor, Marine, Miscellaneous & Engineering, which unequivocally says that the performance of the subject vehicle is satisfactory and it is in roadworthy condition.  The org. complainant has not filed any evidence to rebut the evidence filed by the appellants.  The Learned Counsel for the complainant/respondent No.1 has drawn our attention to the letter written by the dealer i.e. National Garage to the manufacturer i.e. Hindustan Motors saying that the dealer had admitted that the vehicle is having manufacturing defect.  On the basis of this communication, we are unable to draw a conclusion that it anywhere admits that the vehicle has manufacturing defects. 

          The Forum below has overlooked the important factor especially the technical report filed by the appellants and arrived at an erroneous conclusion and hence, we are unable to accept the same.  In view of the aforesaid facts, we pass the following order :-

                                -: ORDER :-

1.       Appeal No.163/2010 and Appeal No.238/2010 are allowed.  The impugned order dated 27/10/2009 is hereby quashed and set aside.  In the result, consumer complaint stands dismissed.

2.       No order as to costs.

3.       Copies of the order be furnished to the parties.