(Delivered on 20/01/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The instant appeal is filed against the order of the District Forum, Amravati, passed in Consumer complaint No. 166/2013 dated 12/05/2014 granting partly the complaint and directing the OP No. 2 to return the cost of the purchased TV (Television Set) of Rs. 44,989/- and to provide the compensation for physical and mental harassment of Rs. 25,000/- to complainant. Further the OP No. 2 to comply with the  order in the span of 30 days from the receipt of the order or aforesaid amount  would be payable with interest at the rate of 12 percent per annum.  Further directed OP No. 2 to provide cost of Rs. 2,000/- to the complainant OPs to bear their own cost. The complaint against OP No. 1 is dismissed.
2. The complainant Nos. 1 and 2 filed a complaint in short that the complainant No. 1 has livelihood business of grow and glow Cyber Park and is a member of OP No. 1 ‘Best Price’ shop of Amravati. He purchased a Panasonic Plasma TV from OP No. 1 for Rs. 44,989/- on 7/7/2013 and was given a guarantee of 12 months. However the TV developed snag after few days. Hence he gave a complaint to OP No. 2 (short for Opposite party), Manager Panasonic India Private Ltd. Chennai. After eight days a representative of OP No. 2 inspected and tried to repair the TV and assured to replace it. The complainant then again contacted the Manager of OP No. 2 and he was given a replacement of the TV in November 2013. However the replaced TV was also not working. Hence the representative of OP No. 2 took away the TV but neither removed  the defect nor returned the TV. Thus, committed deficiency in service.
3. Hence the complainant Nos. 1 and 2 filed complaint with a prayer to provide them  from OP Nos. 1 and 2, the cost of TV of Rs. 44989/- with interest at the rate of 18 percent per annum and direct them to provide a compensation  at the rate of Rs. 1,000/- per day   from 8 October 2013 for harassment inconvenience and mental agony  till final payment.
4. On notice OP No. 1 filed written version. However OP No. 2 remained absent in spite of notice. Hence was declared exparte.
5. The OP No. 1 submitted that the bill provided by OP No. 1 states that “Goods purchased from “Best Price modern wholesale” shop are to be used for business/resale and not for personal consumption. Hence the complaint is not tenable against OP No. 1 and the complainant  is not a Consumer. The  OP No. 1 had not given any guarantee of the TV and complainant also did not make  any correspondence with it. The OP No. 1 further submitted that  the complainant No. 2 had previously filed a separate complaint in respect of the present TV vide CC No. 15/2012 which fact is suppressed  in the present complaint. Hence requested to dismiss the complaint.
6. The learned Forum heard both the parties and holding that complainant is a consumer held that the OP No. 1 had specifically indicated on the bill that the sold TV was for business. However the business of the complainant No. 1 is for livelihood. The OP No. 1 had not given any guarantee of 12 months.  Hence no deficiency in service  on the part of OP No. 1. However OP No. 2 remained absent and did not file any denial version. Hence it is necessary to presume that it admitted the allegations in the complaint. However the OP No.2 had indicated in the email that it can replace the TV or pay the cost of the TV, provided the complainant provides a letter of satisfaction with withdrawal of complaint. This  condition denotes deficiency in service. Hence passed the order supra with a compensation of Rs. 25000/- for physical and mental harassment.
7. Aggrieved against the order, the  original OP No. 2 filed  this  appeal. Hence is referred as appellant. Advocate Mr. Ahemad appeared  on behalf of appellant. The original complainant Nos. 1 and 2 are referred as respondent Nos. 1 and 2 and original OP No. 3 is referred as respondent No. 3. Respondent No. 1 appeared for respondent Nos. 1 and 2 and advocate Mr. Parag Wagh appeared for respondent No. 3. The  parties filed written notes of arguments.  
8. The advocate for the appellant denied all the allegations in the complaint and submitted that the TV was purchased by respondent Nos. 1 and 2 from respondent No. 3 for business. The appellant failed to file written version and had made a request to set aside the exparte order. However the application was not considered. Without giving an opportunity of defence to the appellant, the learned Forum has passed the order as referred. The advocate of the appellant further submitted that the respondent No. 2 had previously filed the complaint which was suppressed in the present complaint. However the respondent No. 2 was later on joined in the complaint who is a doctor and had purchased the TV. He had withdrawn the complaint. Then the present fresh complaint is filed. The respondent No. 3 had agreed that the article purchased from respondent No. 3 is to be used for business or resale. The  respondent No. 1 is running a business of cyber café and has not explained  how the TV is used for earning livelihood. There is no report of any expert to show that the TV was having manufacturing defect. No warranty card is placed on record incorporating warranty to purchaser of 12 months. The learned Forum relied on the email which is a good gesture of the appellant to exchange the TV, but it cannot be considered to be a admission by the appellant. The learned Forum gave exorbitant compensation and without considering the evidence and passed erroneous order.
9. The respondent Nos. 1 and 2 resubmitted the allegation and submitted that the appellant has a habit of remaining absent before various consumer Fora and submitted that the ground raised in the appeal are false and frivolous. Therefore  the appeal deserves dismissal.
10. The advocate for the respondent No. 3 reclaimed that the respondent Nos. 1 and 2 are not consumers. It  had stipulated on the bill that the respondent No. 3 is wholesale stores and the goods purchased are not for personal consumption but is for resale and commercial purpose.  The respondent No. 3 submitted that it is “Best price wallmart India” Private Ltd. in the business of wholesale trade with a chain of stores. It sells goods  the customers exclusively for commercial purpose. It is neither a manufacturer nor a packer and hence is not concerned with any defect relating to the sale. The condition  of sale for business is printed on the best price invoice. It is therefore not responsible for any deficiency in service to the customers.
11. We find that the complainant No. 2 now respondent No. 2 had previously filed an independent complaint. The respondent No. 2 had sent a letter to appellant which is in record which shows that the respondent No. 2 had claimed to have purchased the TV from best price Badnera, Amravati  as in the present complaint the respondent No. 1 in the complaint has submitted that he is a member of respondent No. 3 and had purchased the TV from respondent No. 3. It clearly shows that both respondent Nos. 1 and 2 have taken chances in claiming that they have purchased the TV from respondent No. 3.
12. There is no regular sale receipt of respondent No. 3 to respondent Nos.1 and 2 with a warranty card given  for the sale of TV on record as submitted by respondent Nos. 1 and 2. The sale receipt dated 7/7/2013 produced on record as given by respondent No. 3 has a clear stipulation that  the goods purchased from ‘Best price modern wholesale” are to be used for business and resale and not for personal consumption. In spite  of such a condition the respondent Nos. 1 and 2 purchased the TV which shows that they have accepted the condition and cannot now claim that it was for personal use for  the self business for earning for livelihood. Hence the complainants do not fall within the definition of consumer given under Section 2(1) (d) of Consumer Protection Act.
13. The respondent Nos. 1 and 2 have reported about the various representatives of appellant to have visited them but have not given any evidence about their visit or the assurances given by them. There is no guarantee card given by appellant to respondent Nos. 1 and 2 and no evidence to show as to what exactly was the defect in the TV. It shows that the complaint filed by the respondent Nos. 1 and 2 itself is not tenable and believable. The respondent Nos. 1 and 2 have communicated to the service centre  of the appellant. There is no email on record alleged to have been sent by the appellant. It shows that the learned Forum wrongly presumed that the TV was purchased in the self business by respondent Nos. 1 and 2 and presumed them to be the consumer of appellant without any guarantee card or warrantee given by it. The learned Forum  passed the order without ascertaining the nature of the defect in the TV.
14.  We find that though the appellant remained absent in spite of notice before the learned Forum, still it would not be justifiable to pass the order only on that ground without evaluation of the aforesaid evidence brought on record by the complainant. We thus find that the order of the learned Forum being erroneous as  is not based on cogent evidence. It therefore  deserves to be set aside.  We therefore decide to allow the appeal and dismiss the complaint. We find no reason to provide any compensation. Hence the order below.

ORDER

1. Appeal is allowed.
2. The order of the learned Forum stands set aside. In the event the complaint is dismissed.
3. Stay order if any stands vacated.
4. No order against respondent No. 3
5. Parties to bear their own cost.
6. Copy of the order be sent to both the parties, free of cost.