M.THANIKACHALAM, J. - (1.) This is a petition, filed under Sec.12 r/w17 of the Consumer Protection Act 1986, (herein after called the Act).
(2.) Brief facts, leading to this case: The complainants, reputed Civil Engineering Contractors and Earth Movers, having entered into an agreement with Afcon Infrastructure Ltd., to assist them for laying the road availing loan from the Centurion Bank Ltd., had purchased an Hydrolic HD Excavator with HD bucket and kit, from the 2nd opposite party on 16.8.2002, for a sum of Rs.38 lakhs. The hydrolic HD Excavator had several problems, including manufacturing defect, which was reported to the opposite parties, though they have attempted to repair, failed, thereby they have caused negligent act, as well as deficiency in service, and by their act, the reputation of the complainant was lost, causing mental agony, and the excavator is also not useable. Hence they are entitled to a new one, free from manufacturing defect, or in the alternative they are entitled to the return of the sale price, alongwith compensation of Rs.5 lakhs, in addition to another sum of Rs.10 lakhs, for loss of business, and another sum of Rs.5 lakhs for mental agony, including cost of Rs.25000/- in all Rs.20,25,000/-. Hence the complaint.
(3.) The opposite parties 1 and 2, admitting the purchase of the Hydrolic Excavator from the 2nd opposite party, resisted the case mainly contending, that the purpose of purchasing the excavator, as well as the contract entered by the complainant, was for commercial purpose viz. commercial contract, and as such the complaint is not maintainable before the Consumer Forum, that there was no manufacturing defect, and because of the improper use of the excavator, if at all it should have failed, when reported repaired, and as such they are not liable to pay any compensation, and not liable to pay the sale price, thereby praying for the dismissal of the complaint.;