R.S. Sharma, J. (President) - (1.) This appeal is directed against the order dated 7.11.2013, passed by the District Consumer Disputes Redressal Forum, Surguja -Ambikapur (C.G.) (henceforth "District Forum") in Complaint Case No. 140/2012. By the impugned order, complaint has been dismissed by the District Forum. Briefly stated the facts of the complaint are that : for operation of his business, the appellant (complainant) purchased Mini Truck Tata 407 bearing registration No. CG.15 -AC - 0790 from the respondent No. 2 which is manufactured by the respondent No. 1 at the cost of Rs. 6,28,554 with the financial help of Cholamandalam Investment and Finance Company Limited. Warranty and Guarantee of 36 months was provided in respect of the said vehicle. After 2 -3 months of the date of purchase of the said vehicle, gear box No. 2852531YY 846470 was having some problem, which was neither replaced nor got repaired by the respondents. The appellant (complainant) spent a sum of Rs. 2,00,000 in repairing of the said gear box and thereafter also the gear box was giving problem. In the gear box, there was manufacturing defect, which was not cured in spite of getting repaired the same due to which other parts of the vehicle were damaged. The mechanic informed that a new gear box would be installed. Due to damage of the gear box, the appellant (complainant) could not operate his business. The vehicle was parked in stationary condition and he was required to pay a sum of Rs. 20,000 as instalment to the finance company and to pay salary to the driver. Due to nonpayment of the instalment the amount of interest has also been increased. Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
(2.) The respondent No. 1 (O.P. No. 1) has filed its written statement before the District Forum and averred that before purchasing the vehicle in question, the appellant (complainant) had taken test drive and he also understood regarding the service to be provided after purchase of vehicle and terms and condition and after his full satisfaction he purchased the vehicle in question and at that time the appellant (complainant) had not pointed out any deficiency. As per Clause 9 of the warranty the appellant (complainant) has only those rights which have been mentioned in the warranty document. The appellant (complainant) purchased the vehicle in question for commercial purpose and not for earning his livelihood by self -employment. The appellant (complainant) has not averred in the complaint to the effect that he purchased the vehicle for self -employment and due to which he does not come within purview of consumer as defined under Sec. 2(1)(d) of the Consumer Protection Act, 1986. The respondent No. 1 (O.P. No. 1) has appointed dealer on "principal to principal" basis and for the act committed by the dealer, the respondent No. 1 (O.P. No. 1) is not responsible. The manufacturing defect in the vehicle are different from the simple defect and the burden lies on the appellant (complainant) to prove that the vehicle in question is having manufacturing defect. The appellant (complainant) purchased the vehicle in question after obtaining financial help, therefore, the appellant (complainant) is only bailee of the financier and complaint in respect of such vehicle can only be filed after obtaining permission of the financier. The appellant (complainant) has not mentioned anywhere in the complaint that he obtained permission of the financier and therefore, the complaint is not maintainable. It has also been pleaded that the appellant (complainant) has not done any free service, therefore, the warranty in respect of the vehicle in question was lapsed, but even then the respondent No. 1 (O.P. No. 1) during the warranty period has removed the problem in the gear and installed, and also replaced necessary parts, free of cost and after satisfying the appellant (complainant) gave delivery of the vehicle in question. Thus, there was no manufacturing defect in the gear box of the vehicle in question and to prove the manufacturing defect in the vehicle in question, the appellant (complainant) has not produce opinion or report of any expert. From the date of purchase of the vehicle i.e. 1.2.2011 to 16.7.2012 the appellant (complainant) run the vehicle in question 53358 kms. If there was any manufacturing defect in the vehicle then the vehicle could not run 53358 kms. The vehicle of the appellant (complainant) was not parked in stationary condition, but it is in running and roadworthy condition. The appellant (complainant) has not suffered loss to the tune of Rs. 5,000,000. The District Forum, Surguja, Ambikapur has no jurisdiction to hear the complaint. The appellant (complainant) has filed the complaint without any cause of action. The appellant (complainant) is not entitled to get a sum of Rs. 5,00,000 and cost of litigation from the respondent No. 1 (O.P. No. 1). The appellant (complainant) has filed the complaint to harass the respondent No. 1 (O.P. No. 1), therefore, the complaint be dismissed with compensatory cost.
(3.) Before learned District Forum, the respondent No. 2 (O.P. No. 1) has not appeared and has not filed any written statement.;