Mr. Justice P. Ramakrishnam Raju, President—The complainant, a registered Company engaged in share broking and consultancy services purchased on 28.3.1997 a Think Pad Computer of IBM brand under bill dated 29.3.1997 for Rs. 3,90,000/- from the first opposite party manufactured by opposite parties 2 and 3. However from April, 1997 onwards it was not serving properly and the very purpose of purchasing the Thinkpad has been defeated because the external floppy disk drive FDD was not functioning. Though the first opposite party collected the instrument part for repairing and servicing as is evident from call report dated 18.12.1997 was lying with it upto 8.9.1998. However on 8.9.1998 the first opposite party came back with a new Thinkpad part to instal it. Even the substitute part could not be made to work. In the customer call report dated 8.9.1998 the same was mentioned. Even the registered notice sent by the complainant did not evoke any response. As such, the complainant suffered business loss of Rs. 10,40,400/- and hence filed the complaint for the said amount together with costs of Rs. 10,000/-.

The first opposite party did not file its written version.

2. In the written version filed by the opposite parties 2 and 3 it is stated that the second opposite party appoints distributors who purchase the stock and distribute/sell the P.Cs. through their own net-work of dealers/retailers who in turn resell the goods to customers. There is no privity of contract between the second opposite party and the complainant. But the sale is an exclusive transaction between the complainant and the first opposite party and the second opposite party does not come in the way. Further, the complainant is not a consumer, inasmuch as the purchase of Thinkpad was for commercial purpose.

3. The complainant filed Exs. A-1 to A-12 besides the affidavit of its Executive Director. The opposite parties 2 and 3 also filed Exs. B-1 to B-3 besides the affidavit of their Sales Manager.

4. The point for consideration, therefore, is whether there is any deficiency on the part of the opposite parties 1 to 3, if so, to what extent ?

5. Before we consider the question of deficiency in service, it is necessary to examine the objection raised by the opposite parties that the complainant is not a consumer.

6. No doubt, the complainant is a commercial organization and the purchase of Thinkpad is for commercial purpose. But it is admitted that three years warranty was given and as such even if the goods were purchased for commercial purpose, the purchaser becomes a consumer in respect of the services to be rendered during the said period vide judgment of the National Commission in F.A. No. 312/2001, dated 8.7.2002. Hence this objection cannot be countenanced.

7. The learned Counsel for the complainant urged that inasmuch as the opposite parties 2 and 3 are manufacturers they are anwerable for the defect in the goods sold through their dealer/retailer, the first opposite party.

8. It is true, when there is manufacturing defect, the manufacturer is certainly liable. Hence the question that falls for consideration is whether there is any manufacturing defect in the piece sold.

9. There is no dispute about the purchase of Thinkpad manufactured by opposite parties 2 and 3 from the first opposite party on 28.3.1997. The User’s Guide of IBM at page 297 shows that warranty period for IBM Thinkpad 760EB is three years, one year on battery. Therefore, it is clear that the warranty period is three years. Even under Ex. A-1 order this warranty of three years is specifically mentioned. As seen from Ex. A-3 Customer Call Report dated 18.12.1997 it is seen that “1.44 FDD not working. FDD brought back for servicing”. Ex. A-7 Customer Call Report dated 8.9.1998 shows that “Installation of External 1 FDD (1.44 MB) not successful. FDD taking back for servicing”. From this, the learned Counsel for the complainant submits that the first opposite party could not rectify the defect. In fact he ad