The burden of proof for proving manufacturing defects lies with the complainant, and the absence of expert evidence can weaken the claim.

ORDER

Mrs. Veena Sharma, Member - This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-complainant against the order dated 07.05.2008 passed by the District Forum, Nainital in consumer complaint No. 117 of 2006, whereby the District Forum has dismissed the consumer complaint.

2. Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant Sh. Mohan Singh Bisht has purchased LPT Model truck of Tata Company on 28.11.2005 from the showroom of the opposite party No. 2-M/s Commercial Motors, Haldwani, Nainital, bearing registration No. UA04-C-6337, Engine No. 697 T.C.55 KUJ 132618, Chassis No. 373344KUZ 132618, which was hypothecated from ICICI Bank. The said vehicle was driven/plied according the instructions and the services of the vehicle were done timely, even then the vehicle was suffering from many major defects. On 18.06.2006, the pump of the aforesaid truck became defected and due to this defect the truck was unable to run. The opposite party No. 2 has brought the vehicle to the workshop & rectified the problem. The problem was not fully rectified, so the complainant was facing difficulties to ply the vehicle. Again on 17.07.2006, the complainant faced the same problem and due to defective pump, the aforesaid truck was brought in the workshop of the opposite party No. 2 from 17.07.2006 to 22.07.2006. The defect of the pump was removed/rectified, but after covering a distance of 20KM., the aforesaid truck was again stopped. The said truck was again brought to the workshop, but the complainant was not satisfied by the service of the aforesaid truck, so he sent a notice to the opposite party No. 2 and also served a letter to the opposite party No. 1, wherein he made a list of defective parts of the truck. Opposite party No. 2 has removed the vital defects as, crown wheel, clutch plate, injector pipe, FPI Pipe of the truck. As the said truck was hypothecated from the ICICI Bank and the complainant could not deposited the EMI of the truck, as the truck was troubling from starting, so he is facing mental and physical agony and also financial crises. The opposite party No. 2 has sold him defective truck. The complainant prayed that the opposite parties be directed to replace the said truck or to pay Rs. 2,100/- per day till the vehicle is handover to the complainant in good and running condition and Rs. 50,000/- as mental agony.

3. The opposite party No. 1-Tata Motors Ltd. has filed the written statement before the District Forum and has pleaded that the vehicle in question being Model LPT 1613 truck and the nature of the vehicle being "commercial", it is evident that the vehicle was using for commercial purposes. The complainant has not even made a whisper that the vehicle in question was purchased for livelihood purposes. The answering opposite party further submitted that the opposite party No. 2 has replaced the F.I.P. of the vehicle with a new one under warranty on 06.12.2006. After replacement of the F.P.I., the vehicle is running in good condition and the complainant is completely satisfied with the performance of the said vehicle. It is submitted that the warranty offered on every vehicle, manufactured by the answering opposite party is subject to such terms and conditions as contained therein and the violation thereof would result in forfeiture of the warranty. As per Clause-3 of the terms and conditions of warranty, which is extracted below:-

"With regard to parts not manufactured by us but supplied by other parties, such as tyres, batteries, rubber parts, electrical equipment, measuring instruments, diesel injection pumps and accessories, the buyer shall be entitled to exercise, so far as permissible by law, such rights as we may have against those parties under warranties, if any, given by them."

The complainant is not a consumer within the meaning of the term 'Consumer' as defined under Section 2(1)(d) of the Consumer Protection Act,