Thiru Justice E.J. Bellie, President — The complainant purchased a Tata Estate car from the 2nd opposite party dealer for a sum of Rs. 4,34,024/-. The 1st opposite party is the Manufacturer and the 3rd opposite party is the Service Centre of the 1st opposite party. He had taken delivery of the vehicle on 30.1.1994.

2. According to the complainant right from the beginning the performance of the vehicle was not proper. The complainant perforce had to send the vehicle frequently and periodically for repairs to the 2nd and 3rd opposite parties. The opposite party have changed the battery, clutch plate, tyre, air conditioner etc. These changes have been made within short span of time and it was not due to normal wear and tear. Further the vehicle has been constantly giving problems in terms of its suspension, engine overheating, steering wobbling, engine oil leakage, break engine, oil problem etc. In spite of several visits to the opposite parties for repairs no lasting solution was found. The recurring problems were due to the material manufacturing defect. During the period when the vehicle was in the 3rd opposite party Service Station the complainant had been forced to hire taxies or private cars for his use. In spite of several reminders to the opposite parties they failed to rectify the defects. It is the bounden duty of the opposite party to ensure that the vehicle is in proper running condition and otherwise they have to supply a new car in lieu of the defective car. In spite of legal notice to the opposite parties to rectify the defects or to make good the loss the opposite parties have not done anything. On these grounds the complaint has been filed for directing to the opposite parties to replace the vehicle in question with a new one or in the alternative to pay a sum of Rs. 5,02,000/- being the cost of a new vehicle. Besides the complainant has claimed other sums under different heads.

3. The 1st opposite party in its written version would contend that having used the vehicle for over two and a half years after purchase it will be futile on the part of the complainant to seek relief for replacement of the vehicle with a brand new one or of the value thereof. The vehicle having been purchased by the complainant which is a partnership firm for its commercial activities, the complaint cannot be maintained in view of Section 2(l)(d)(l) of the Consumer Protection Act. The complainant failed to take the car to the authorised Service Centre for the 2nd and 5th free services noted in the warranty given by the opposite party so as to enable the Service Centre to check and correct any disorder that might have arisen and the cause for the same. The complainant having thus acted contrary to the express terms of the warranty and the complainant cannot claim any right under the warranty, but however the opposite parties continued to extend the warranty throughout the warranty period of 18 months at free of charge basis as a gesture and goodwill. All the defects pointed out by the complainant on various occasions were properly carried out and the repairs were mainly minor ones. The vehicle had been under the constant use of the complainant without any major problem. The allegation that the vehicle had manufacturing defect is not true. There is no truth in the allegation that the complainant was forced to engage private cars during the period the vehicle in question was with the 2nd and 3rd opposite parties for repairs. The opposite parties are not guilty of any deficiency in service and therefore the complaint is liable to be dismissed.

4. The 2nd opposite party also in its written version contended that the vehicle was purchased for commercial purpose of the complainant's firm and therefore the complainant is not a consumer as per the definition in the Act. It further contended that the warranty had already expired and the claim is barred by limitation. The vehicle was brought to this opposite party for repair only twice on 29.11.1