(Delivered on 27/04/2016)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed  by the original complainant against the order dated 21/04/2003, passed in consumer complaint No. 171/2001, by the District Forum, Yavatmal, by which complaint has been dismissed on the ground that  the generator  purchased by the complainant  from O.P. (for short O.P. ) No. 3-Delear  has been used for commercial  purpose by the complainant  and therefore, he does not fall within the  definition of the Consumer as given n the Consumer Protection Act, 1986.

2.         The facts in brief giving rise to the present appeal  are as under,

            The O.P. No. 3 is the dealer of the generator. The O.P.Nos. 1&2 are respectively Manager and Regional Manager of the manufacturer of generator. The complainant is a agriculturist  and  he  also does supporting business of  vegetables for maintaining  his livelihood. He therefore, purchased  generator  from the O.P. No.3 as manufactured by Gen-Set  Honda C.L. Power Products Ltd.  of which  O.P. Nos. 1&2 are respectively the Manager, and Regional Manager. He paid in  installments  Rs. 25,950/- as per scheme to the O.P.No.3 as specified in the complaint in detail.  He also alleged that  he paid by cheque Rs. 1640/- and also extra Rs. 7500/-. He also  alleged that  the said generator  was giving various problems  in its operation  as there was manufacturing  defect and  said defect was not  removed by the O.P. Nos. 1 to 3.  He thus served  notice dated 03/04/2001 to the O.P. Nos. 1 to 3 by Registered Post A.D.  Despite service of notice they did not remove the defect. The O.P. No.3 replied  to the notice.   Therefore, the complaint was filed  before the Forum by the Complainant  praying that direction be given  to the O.Ps. to replace that generator by new generator of the same model and to pay him compensation of Rs. 5000/- for expenses incurred by him and further compensation of Rs. 50,000/- for physical and mental  harassment  and further compensation  of Rs. 1000/- per day with effect from 14/01/2001 till the generator  is replaced  by new generator. He also prayed that  the O.P.No. 3 may be directed to refund  it  the entire amount with interest by taking back the defective  generator  and to pay him cost of complaint.

3.         The O.P. Nos. 1,2&3  filed  their  written version before the Forum and  resisted the complaint  and raised  objection that  the generator  was used for commercial purpose  by the complainant and hence,  is not a consumer. They denied  that the generator  is defective. According to them the generator was   installed  by mechanics  after due verification and testing of its . They therefore requested that  the complaint may be dismissed with cost.

4.         The District  Forum  after hearing  both the parties  and considering evidence brought on record   accepted the defence of the O.Ps that  the generator  was purchased by the complainant  for  commercial purpose and hence,  he is not a consumer  as defined under the  Consumer Protection Act. Hence,  the Forum dismissed the complaint by passing  impugned order and  gave  liberty  to the complainant to  approach  Civil Court for  redressal  of  his grievance. 

5.         As observed above, the original complainant   has filed this appeal against the O.Ps.  Advocates of both the parties filed  their written notes of argument  which we have considered.  The respondent’s advocate is not present for hearing  today. We have heard appellant’s Advocate. We have perused  the papers placed before us in this appeal. The learned advocate of the appellant has argued  that the Forum  did not consider the report of expert who on examination  of the generator, reported that there is manufacturing  defect in the generator. He  further submitted that  there  was no evidence before the Forum that   the generator  was used  for commercial purpose and Forum has erred in dismissing the complaint.  He therefore, requested that impugned order may be set aside and complaint may be allowed.

6.         On the other hand, the learned advocate of the respondent  in his Written Notes of Argument supported the impugned  order and  submitted that  though the scheme floated for  the generator  was of only 600  watts, the complainant purchased  generator  of 1200 watts  and   this shows   that  he wanted to do the business by supplying the electricity  to  other person  with help of generator.  He therefore, requested  that appeal may be dismissed.

7.         We find that there was no oral  or documentary evidence to show that  the complainant /appellant purchased  the generator  for commercial purpose. Hence, no  inference can be drawn from the simple fact that  though the scheme  was relating to the generator of 600 watts, the complainant  purchased  the generator of 1200 watts. The generator was  being used at small place namely Ghatanji. The requirement of the complainant had made him to purchase the generator of 1200 watts. There is no  evidence   to prove that  the complainant  supplied the electric energy by  means of that generator  to other persons  on commercial  basis. In the absence of any such evidence,  the Forum erred in holding that the generator  was used for  commercial  purpose. Hence  on this sole ground the impugned order deserve to be set aside.

8.         We find that  on examination  of generator  an  expert had given  report that there  is  manufacturing  defect in that generator  and said defect can be removed only  by replacing  its parts  of which cost is  equivalent  to cost of new generator. The said  report  is not disputed  by the O.Ps /respondents. Thus accepting  that  report and opinion  we hold that  the generator  purchased by the complainant from the O.P. No. 3/respondent No. 3 is having  manufacturing  defects. Therefore, the complainant /appellant is entitled  to refund  of   entire amount of cost of the generator  from the O.P.No. 3/respondent No.3. However, we find that  the O.P.Nos. 1,2&3 are jointly and severally liable to  refund  the cost of the generator  paid  by the appellant /complainant. O.Ps.  they are  entitled  to get  back the defective  generator. The impugned order shows that  the complainant had produced  the receipts of payment  to the  O.P.No.3 for purchasing  the generator. Those receipts is relating  to the payment of Rs. 25,950/- and Rs. 7,500/- i.e. total Rs. 33,450/-. Hence, the appeal deserves to be allowed.

ORDER

i.          The appeal is partly allowed.

ii.          The impugned order  dated 21/04/2003 passed in complaint No. 171/2001 is hereby  set aside and complaint is partly allowed.

iii.         The O.P. Nos. 1,2&3 /respondent Nos. 1,2&3 herein jointly and severally shall pay to the complainant/appellant  Rs. 33,450/- with interest  at the rate of 9% p.a. from the date of the complaint i.e. 20/06/2001 till its realization by the complainant/ appellant and  they shall also to pay him compensation of            Rs. 5,000/- for physical and mental harassment  and cost of Rs. 5,000/-.

iv.        The O.P. Nos. 1,2&3 shall take  back the said defective generator  from the complainant  before paying  the aforesaid  amount to him and complainant shall make available  the said generator  to them for taking back.

v.         Copy of order be furnished to both the parties, free of cost.