(Per: Mr. D.K. Tyagi, Member):

This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-opposite party No. 3 against the order dated 10.10.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 85 of 2009. By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties to pay the claim amount of tyre in question, Rs. 2,000/- as cost of tube, Rs. 1,500/- for litigation charges and Rs. 2,500/- towards damages to the complainants, within 15 days from the date of order.

2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainants are the partners and proprietors of M/s Virk International Trading Company and are real brothers. The complainants are the joint owners of JCB bearing registration No. UA06-E-9984. The complainants purchased two Apollo tyres size 16x28 @ Rs. 22,500/- per tyre and one tube size 16x28 for Rs. 2,000/- for their JCB from opposite party No. 1-M/s Anand Automobiles, Rudrapur, Udhamsingh Nagar on 20.11.2008 on the basis of attractive advertisement regarding quality and durability. They used the said JCB conveniently, uninterrupted and without any mechanical defect. But on 06.04.2009 one of the tyres, purchased from the opposite party No. 1, became defective due to breakage of wire, which was placed inside the tyre, resulting burst of tube for which the complainants informed the opposite party No. 1. The opposite party No. 1 took defective tyre and tube under claim and assured the complainants that he will replace the tyre and tube, but after so many reminders the opposite party No. 1 did not change the defective tyre and tube. Therefore, the complainants sent a legal notice to the opposite parties on 21.04.2009. Prima-facie there was a manufacturing defect in the tyre. On the basis of advertisement of Apollo tyres and assurance of the opposite party No. 1 that the life of tyres are 10 years or more and in case of any defect tyres will be replaced by the opposite parties, the complainants had purchased the tyres and tube for their JCB. The opposite parties even after finding the manufacturing defect at the spot neither replaced the defective tyre and tube nor returned the same, resulting loss of Rs. 3,000/- per day to the complainants. Therefore, there is deficiency in service on the part of opposite parties. The complainants are entitled to get Rs. 3,000/- per day since 06.04.2009 and cost of defective tyre Rs. 22,500/-, cost of tube Rs. 2,000/- and Rs. 5,000/- as litigation expenses from the opposite parties.

3. The opposite party Nos. 2 & 3-M/s Apollo Tyres Limited filed its written statement/objections before the District Forum, Udhamsingh Nagar and pleaded that as per the knowledge of the answering respondent alleged vehicle is being run for commercial purpose, with the help of a paid driver and helper. It is well settled law that a person using his vehicle for commercial purpose is not a “consumer” within the definition under the Consumer Protection Act, 1986. The consumer complaint is not maintainable as the complainants have not produced any evidence/report of any expert on record to prove that the tyres in question were suffering from any manufacturing defect. Technical service in-charge of the answering respondent did not find any defect in the alleged tyre. The complainants are filing the present consumer complaint with ulterior motive to extract undue benefit from the respondents devoid of any cause of action against the answering respondent. Answering respondent is not aware of the transaction between the complainants and opposite party No. 1. It is incorrect that the alleged tyre got damaged all of a sudden because of any manufacturing defect only after 5 months of fitment. It is denied that alleged tyre was used without any mechanical defect. The alleged tyre was accepted for technical inspection. It is incorrect that any manufacturin