ORAL ORDER

PER JUSTICE MR. V.R. KINGAONKAR

We have heard learned counsel for the petitioner.

2.      The revision petition is directed against concurrent findings of the District Consumer Forum and the State Commission, Jodhpur.  By impugned order rendered in Appeal No. 395/2007, the State Commission, Jodhpur Circuit Bench confirmed the finding that the petitioner provided defective Auto Analyzer machine to the respondents.  The complaint of the respondents was that the machine was purchased for Rs.1,45,000/- on 28-01-2005.  The machine was put into operation.  The respondents alleged that they were experienced in the relevant field.  The petitioner had given warranty for the repairs and removal of the defects, if any, within the warranty period.  The complaints of deficiency were not duly considered and the defects were not removed by the petitioner.  The Analyzer machine was checked by the Area Service Manager of the petitioner.  It was found that the reading of the Analyzer was fluctuating and incorrect.  The District Consumer Forum awarded compensation to the respondents on the condition that the defective machine shall be returned to the petitioner.

3.          Learned counsel would submit that the Auto Analyzer machine was purchased by the respondents for “commercial purpose” and therefore, the respondents could not be branded as “Consumers” qua the petitioner.  It is argued that findings of both the Foras are incorrect and improper.  Learned counsel referred to the judgment in First Appeal No. 242/2010 rendered by this Commission.  We have gone through the said judgment.  It is manifest that the fact situation in the case of Dr. D. Srihari Rao Vs. Wipro GE Medical Systems (FA No. 242/2010) was on different footing.  The complainant in that case i.e. Dr. D. Srihari Rao had purchased 4D colour Doppler machine for the commercial purpose, which was used in the hospital for earning profits.  It is to be noted that in the present case, the petitioner never raised the plea before the District Consumer Forum that the Auto Analyzer machine was purchased by the respondents for any “Commercial purpose” and therefore, they cannot be treated as consumers.  The absence of any such plea before the District Consumer Forum goes to show that, for the first time, such contention was raised before the State Commission, while arguing the Appeal No. 395/2007.  The question about the locus of the respondents as consumers is a mixed question of facts and law.  It is not a pure question of law, which can be raised for the first time in the appeal or the revision, unless such objection had been raised before the District Consumer Forum and some material was made available to examine the issue.  It was not permissible for the petitioner to agitate such issue for the first time in the course of appeal without there being any factual substratum in the context of such issue.  The defect was noticed during the warranty period.  The District Consumer Forum and the State Commission rendered concurrent findings of fact that the Auto Analyzer machine was purchased by the respondents to earn their livelihood.  It was found that there was variation in the readings and therefore, the Analyzer Machine was defective.  We do not find any perversity committed by the Foras below while giving findings on the facts.   Nor the legal issue projected by the learned counsel for the petitioner can be considered for the first time without there being any plea in the original complaint before the District Consumer Forum.  Under these circumstances, the revision petition is dismissed.