B JAYAKUMAR Vs. BHARATH EARTH MOVERS LIMITED

JUDGEMENT

(1.) This complaint under Sec.17 of the Consumer Protection Act, 1986 (for short 'the Act') is for a direction for payment of Rs.20 lakhs as compensation. The allegations in brief are; on 8.8.1995 the opposite party placed an invoice with the complainant offering the sale of a Backhoe Loader needed for the purpose of bulk movement of earth for total consideration of Rs.14,57,500/- inclusive of tax. The ex-factory price of the equipment is Rs.12,50,000/-, that was accepted by the complainant at Kalady in Ernakulam District. The opposite party thereupon sent the equipment on 31.10.1995 and the sale certificate was issued on 9.11.1995; and on 16.11.1995 the Shipping Officer of the opposite party at Bangalore prepared the invoice for the removal of the equipment to Kalady. Warranty Card for the same was also handed over to the complainant. On 22.11.1995 a representative of the opposite party deputed by the Kochi Office of the opposite party inspected the equipment at Kalady and issued the delivery inspection report. Thereafter on 1.12.1995 it was found that the Back Hoe of equipment was not working properly and hence the mobile control value assembly of the equipment had to be replaced. There was oil leaking on 4.12.1995 and it was inspected, the control value was found tilted; thereupon the Rotary Activator Assembly was replaced. Though repairs were attended, it was noticed that, the problem cannot be rectified at the site and therefore it had to be removed to Bangalore Head Office and accordingly it was sent to Bangalore on 12.1.1996. The opposite party replaced the engine and the transmission system of the equipment and it was delivered back at Kaladi on 3.2.1996. The equipment was found to be working effectively. On 9.2.1996 it showed Hydraulic oil leakage and that was rectified. On 26.2.1996 it was found that certain defects like swing did not stop and that too was rectified by the opposite party's Engineers. On 16.3.1996 though there was oil leakage the machine was working. On 27.3.1996 it was found the machine had developed leakage of oil. On 11.9.1996 repairs were attended and 14 items were replaced. But on 3.10.1996 the hydraulic oil leakage repeated and upon that the complainant wanted the warranty period of the equipment extended. Warranty period was extended for 1 year or 1500 hours of operation of the equipment whichever is earlier. On 24.12.1996 oil leakage was noticed. That was rectified. Later, though rectified the problem again repeated. On 7.9.1997 the operation of the machine became slow. On 12.12.1997 the condition of the equipment continued with the aforesaid problem. The complainant alleged that, he had invested Rs.5 lakhs for acquiring the equipment and raised the balance Rs.9,50,000/- by hire purchase. He expected the equipment to work for a minimum of 9 hours a day, but during the course of 2 years after supply of the machine it worked only for 2500 hours of which productive part was only 2000 hours. The equipment requires an operator, an assistant operator and also a helper, their wages also had to be paid. There was facility to work for 10 months in a year at the rate of 9 hours a day, but because of frequent failures of the machine the output was only 2500 hours as against the anticipated 5400 hours. Thus towards the earning, the complainant incurred a net loss of Rs.11,91,000/-. An amount of Rs.9,60,000/- is outstanding towards balance of hire purchase of the equipment. Thus the complainant has incurred a total loss of Rs.33,06,000/-. It is also alleged that, later in the afternoon of 18.12.1997 the Manaspuram General Finance and Leasing Limited, Naikanal, Thrussur, who had advanced finance for the purchase of the equipment seized the equipment from the complainant's custody and taken it into their possession. The aforesaid series of non-functioning would constitute "defect" under the Consumer Protection Act. Complainant therefore alleged that, there is irreparable defect and technical fault in the manufacture of the equipment and the equipment suffers from 'defect' as defined under the Consumer Protection Act of 1986 for which the opposite party is liable. Therefore, the complainant is entitled to realise the aforesaid amount of Rs.33,06,000/- but he limits the claim to Rs.20 lakhs.

(2.) The opposite party entered appearance and filed their version. They contended that the complaint is not maintainable. Since the purchase was for commercial purpose the complainant is not a consumer. This Commission has no jurisdiction to entertain the complaint. The equipment was supplied in the name of the financier of whom reference is made in the complaint. The alleged mal-functioning of the equipment was due to the failure of the complainant to operate the machine as is required by engaging persons who are qualified to operate the same. Further, the complainant did not appoint any mechanic to look after the satisfactory functioning of the equipment. Whenever mal- functioning was reported the opposite party attended the same and whenever any part was needed to be replaced, that was done. The alleged 'defects' were only minor and were cured as and when intimated. Yet as a gesture of good-will and good customer relationship, the opposite party extended the warranty period. Assessment of the compensation also is not correct. The allegation as to the expected hours of working also is not correct. It is the duty of the owner of the equipment to keep the equipment in proper condition by attending the needed maintenance. The service reports produced by the complainant themselves would show that, the non-functioning of the equipment was due to failure to manage the equipment in the proper way. Therefore, they maintained that the complaint is liable to be dismissed.3. The complainant as well as the opposite party have filed affidavits. On the side of the complainant Exts. PI to P49 were produced. Complainant was examined as PW 1 and the District Manager of the opposite party was examined as RW 1. After closing the evidence the opposite party filed LA. No.586/98 praying to admit two documents, for which the complainant has filed detailed objection. The said petition is allowed by separate order and they are marked as Exts. B1 and B2.4. The points that would arise for consideration are : (1) Has this Commission jurisdiction to entertain the complaint (2) Whether the equipment was purchased for commercial purpose And, whether the complainant is a consumer (3) Whether the equipment was bought and used by the complainant exclusively for earning his livelihood by means of self-employment (4) Whether the equipment suffers from manufacturing defect (5) Whether the complainant is entitled to compensation claimed (6) Reliefs and costs 5. Point No.1 : The jurisdiction to entertain the complaint is challenged on the ground that this Commission has no territorial jurisdiction as the office of the opposite party is situated at Bangalore and the transaction according to them also has taken place at Bangalore only. On the other hand, the learned Counsel for the complainant would point out that, she said stand of the opposite party is unsustainable for the reason that, the opposite party has an office at Cochin from where their Technicians used to visit the complainant to attend the equipment. Therefore, according to the learned Counsel since they have a branch office at Cochin, as per Sec.11 (2) (a) of the Consumer Protection Act this Commission would get jurisdiction to entertain the complaint. Since it is not disputed that the opposite party has a branch office at Cochin, it has to be found that, this Commission has also got jurisdiction to entertain this complaint. Point found in favour of the complainant.6. Point Nos.2, 3 and 4 : It was contended on behalf of the opposite party that since the equipment was purchased for commercial purpose the complainant is not a consumer. As per Sec.2, Sub-section (1) (d) of the Act, a person who purchases goods for commercial purpose is not a consumer. On the other hand, the complainant would claim that, the purchase was not for commercial purpose but was exclusively for the purpose of earning his livelihood by means of self-employment. The decision of the Supreme Court in Laxmi Engineering Works V/s. P. S. G. Industrial Institute, 1995 2 CPJ 1, considers this aspect. In that decision the Supreme Court has laid down the scope of Sec.2 (1) (d) of the Act. In the said decision the Supreme Court points out, the Act provides for "business to-consumers" disputes and not "business to-business" disputes. The object and purpose of the Act has crucial relevance in interpreting the provisions of the Act for that will throw light on the intention of the legislature. In clarifying the scope of Sec.2 (1) (d) and the explanation thereof the Supreme Court gives illustrations to show the difference between "commercial purpose' and earning livelihood by self-employment; in para 10 at page 9 of the decision it is observed : "as against this a person who purchases an auto-rickshaw, a car or lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self- employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words. " The precise attack of the opposite party is that the complainant is a person who is engaged in large scale commercial activities and this equipment was acquired by him only as an accessory for advancing his commercial activities. In Cheema Engineering Services V/s. Rajan Singh, 1997 1 SCC 131, the Supreme Court said,-"exclusively for the purpose of earning his livelihood by means of "self-employment" has to be determined on the basis of evidence in the case and the word "he" used therein would include members of his family. That means if he employs from members of his family and the other conditions are satisfied. That will be taken as a purchase as for the purpose of self employment for earning his livelihood. But an important aspect to be noted is, when there is dispute as to the question whether the goods was bought and used exclusively for the purpose of earning his livelihood by means of self employment, the burden of proof is on the person who claims so. The further observation of the Supreme Court is also relevant with due regard to the facts of this case; the further observation of the Supreme Court in 1997 (1) Supreme Court Cases 131, in para 6 at page 133 is : "manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business" does not mean that it is not for commercial purpose. " So the burden of proof is on the complainant to show that, he has acquired and is using this equipment exclusively for the purpose of earning his livelihood by means of self-employment. In the decision reported in , Ashoke Khan V/s. Tulsi Pramanik, 1998 1 CPJ 1, of the West Bengal State Commission, it is Held : "the burden of proving that the purchase of the goods was not for commercial purpose lies on the person who states that he purchased the same not for commercial purpose. " Similar view has been taken by this Commission in the decision reported in Thressiamma Paul V/s. Kilco Perfect Machines and Anr.,1997 3 CPJ 195 (Kerala), In that decision this Commission held that if the person who purchased the car does not drive the car himself, he will not fall within the explanation to Sec.2 (d) (1 ). PW 1, the complainant, in the cross-examination admitted that, he has no licence or badge for plying this equipment. He further admitted that, he has another equipment of the same type manufactured by Escorts. Thus he is in possession of 2 such equipments. In paragraph 30 of the complaint it is stated that-"the equipment requires an operator, an assistant operator and also a helper for whom daily wages had to be paid at the rate of Rs.150/-, Rs.125/- and Rs.100/- respectively". That means physically this equipment is operated not by the complainant but by his employees. An attempt was made by the learned Counsel for the complainant to claim ' that, though his personnel operates the equipment he is supervising the same. Wherever the equipment for the moment was being operated, the complainant too was present at the site. He brought to our notice Exts. P5, P7, P16, P18, P19, P22, P25 and P40 service reports which are signed by the complainant as customer and these service reports were prepared at different places where the equipment was for the time being operated. Simply because when the technicians of the opposite party examined the machine the proprietor of the same was also present is certainly not enough to hold that the same was being used exclusively for the purpose of earning his livelihood by means of self-employment. The object and intention of the legislature has to be kept in view in interpreting the provisions of the Act. The words employed in a provision would capture meaning from the context in which they are used. In this regard the observation of the Supreme Court in the decision reported in Chema Engineering Services V/s. Rajan Singh, 1997 1 SCC 131, referred to early has got crucial bearing. Therefore, earning livelihood in commercial enterprises will not make it other than commercial. In para 32 of the complaint it is stated that, if the equipment could have worked without failure, the complainant could have charged at the rate of Rs.500/- per hour and that because of the mal-functioning of the equipment he could earn only at the rate of Rs.350/- per hour. The learned Counsel for the opposite party relied on the decision reported in Dr. Pratimaben Kundan Sinh Parmar and Anr. V/s. Indchem ATL Limited, Madras, 1997 2 CPJ 241, of the Gujarat State Commission to contend that, such earning will not come within the category of earning livelihood by means of self-employment as is understood in the explanation to Sec.2 (1) (d) of the Act. In the said decision it is held that carrying on activity on large scale for the purpose of earning profits, cannot be earning livelihood by self-employment and that earning Rs.500/- per day or Rs.15,000/- per month is carrying on activity on large scale for the purpose of earning profits. And therefore that cannot be termed as earning livelihood by self-employment. It was urged by the learned Counsel for the opposite party, whereas earning of Rs.500/- per day was treated as earning profit in commercial activity in that decision, here the very case of the complainant is, the potential of the equipment is to earn Rs.500/- per hour and because of the alleged mal-functioning it was reduced to Rs.350/- per hour. In this regard the learned Counsel for the complainant relied on a decision reported in, Rampion Pharmaceuticals V/s. Dr Preetham Shah, 1997 1 CPJ 23 wherein the National Commission dealt with the question where a doctor who purchased an equipment for the purpose of pursuing his profession would be a consumer in the context of the contention by the opposite party that the purchase was for commercial purpose. It was held that, the purchase was not for commercial purpose, but in paragraph 3 of the said decision it is observed that - it was not true that the doctor is running a huge hospital and his business is on a scale which can be put in the category of commercial nature and then observed the observation of the State Commission that the machine was purchased not for commercial purpose but to pursue the professional activities of the complainant/respondent and therefore it is in the nature of the self-employment, was acceptable. What is to be noted in the case reported in Dr. Pratimaben Kundan Sink Parmar and Anr. V/s. Indchemat Limited, Madras, of the Gujarat State Commission, turns on the fact that the daily earning from the equipment was at least Rs.500/- per day or about Rs.15,000/- per month. Therefore, the State Commission held that he is not consumer. The decision of the National Commission is distinguishable inasmuch as where there was no evidence as to the profit earned by the doctor acquiring an equipment for pursuing one's profession need not be for commercial purpose. The learned Counsel for the complainant also brought to our notice the decision reported in M/s. Jaykay Puri Engineers and Anr. V/s. M/s. Mohan Breweries and Distilleries Limited,1997 2 CPJ 26, to support his contention that the purchase of a Central Air conditioner for the Guest House of a commercial concern was held to be not for commercial purpose as the air-conditioner system had no nexus with the commercial activity of the Company. This decision evidently cannot have any application to the facts of this case because here this equipment was purchased for hiring it out, and earning profit, not only the complainant admittedly had another equipment of the same nature, fetching income per hour from this equipment at the rate alleged by him itself could demonstrate that, the equipment was bought and used for the commercial activity of the complainant. In the face of the evidence of PW 1, the complainant, and also with due regard to the nature of the allegations in the complaint, it is not possible to agree with the learned Counsel for the complainant when he urged that, the purchase was not for commercial purpose but was only for being used by the complainant exclusively for the purpose of earning his livelihood by means of self-employment.7. Alternatively it was urged by the learned Counsel for the complainant that since the defects arose during the warranty period, even if the purchase was for commercial purpose the complainant would, under law, be a consumer. Reliance was made by the learned Counsel for the said proposition on the decision of the National Commission reported in Amtrex Ambience Limited V/s. M/s. Alpha Radios and Anr., 1996 1 CPJ 324, In that decision the National Commission observed in para 4 : "this Commission has in several cases already taken the view where the allegations of the complainant was that there was mal-functioning of the machinery/equipment during the period of warranty when the manufacturer had undertaken to keep the machinery in good working condition, even if sold for commercial purpose, the purchaser will certainly be a consumer under Sec.2 (1) (d) (ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery/equipment, system during the period of warranty. " The learned Counsel for the opposite party on the other hand sought to maintain that this decision runs counter to what the Supreme Court has held in the decision in Lakshmy Engineering Works V/s. P. S. G. Industrial Institute, referred to early. The point urged by the learned Counsel is, various, illustrations are mentioned in the decision by the Supreme Court to demonstrate in what situation the complainant could be treated as a consumer; and it is not held therein when the defect or mal-functioning is during the warranty period the complainant could be treated as a consumer for the purpose of Sec.2 (d) (ii) even though the acquisition of the equipment was for commercial purpose. . Therefore, according to the learned Counsel, since the Supreme Court has extensively dealt with the situations in classifying as to how one would be a consumer, the National Commission could not have grafted in another category in the array of consumer. The ratio of the decision is binding and in certain cases even the obitor may also be binding by virtue of Article 141 of the Constitution; but what the Court did not say cannot be treated as ratio. We cannot agree with such an approach because the Supreme Court cannot be held to have considered the position of a person who claims benefit of the Act as Consumer because the defect arose during the period of warranty so long as it is not considered by the Supreme Court and pronounced against such proposition. The decision of the National Commission holds the field. Therefore, following the principles laid down in the decision of the National Commission reported in Amtrex Ambience Limited V/s. M/s. Alpha Radios and Anr., referred to early, if the 'defect' arose during the warranty period the complainant could be treated as a consumer for the purpose of Sub-clause (2) of Sec.2 (1) (d ). Reliance was also placed by the Counsel for the complainant on a decision of the National Commission reported in M/s. Jaykey Puri Engineers and Anr. V/s. M/s. Mohan Breweries and Distilleries Limited, which among other things held that, even when the goods are purchased for commercial purpose, so far as service during warranty period is concerned the purchaser would be a consumer. In the light of the law as is held by the National Commission, now the question to be considered is whether 'defect' occurred during the warranty period, if so, whether the opposite party failed to attend it.8. It is an admitted case that, the warranty was originally for 6 months or 1000 hours whichever is earlier. The warranty is marked as Ext. P43. Though the period is left blank, it is not disputed that, the period of warranty initially was for 6 months or 1000 hours whichever happens early. Later this period was extended by Ext. P34 for 1 year or 1500 hours of operation of the equipment whichever happens earlier. Computing the said period from 3.2.1996 period of the warranty would expire by 2.2.1997. There is no acceptable evidence as to when the equipment completed 1500 hours. Therefore concerning the service as per Ext. P34 till 2.2.1997, the complainant is a consumer.9. Now the question is whether the complainant has proved there was manufacturing defect/defect as defined under Sec.2 (f) of the Act. The whole endeavour of the learned Counsel for the complainant was to establish the said aspect by relying on the service reports produced by him. It is necessary to note in this connection the nature of the defect alleged by the complainant in paragraph 29 of the complaint. It is alleged ". . . All these have led the complainant to conclude that there is irreparable mechanical and technical fault in the manufacture of the equipment and that the equipment suffers from "defect" as defined in the Consumer Protection Act, 1986 for which the opposite party is liable under law as its manufacturer and seller". Therefore, the allegation is there is irreparable mechanical and technical fault in the manufacture of the equipment. In fact the said allegations postulate a case that the machine in question suffers from manufacturing defect. But though it is further stated that the equipment suffers from defect' two questions would arise in this connection; whether the inference sought to be made by the complainant is capable and possible from the service reports produced by him, and the other is, whether, under the law, such an inference can be made. This necessarily require us to examine the service reports; that may also be relevant in evaluating the service rendered by the opposite party on being intimated of the mal-functioning. In the decision reported in I (1996) CPJ 324 (NC) referred to early, what is held is where the mal-functioning of the equipment is during the warranty period even if the goods were sold for commercial purpose he would be consumer under Sec.2 (1) (d) (ii), that is with respect to the service as enjoined in the warranty.10. Ext. P7 service report is dated 1.12.1995. It notes that there was mal-functioning of the control value and states, the said control valve was replaced and the Backhoe which was not working "perfectly" was cured of the said cause. Ext. P8 is dated 4.12.1995. There was again a mal-functioning of the control valve as detailed. It mentions that, when the polythene paper found within was extracted it worked normally. It also notes that Rotary Activator Assembly has to be replaced/repaired. On 9.1.1996 the opposite party wrote Ext. P10 letter stating that the equipment developed some hydraulic problem during operation and since the machine could not repaired at the site, the equipment had to be taken to the factory at Bangalore. Admittedly, the equipment was taken to Bangalore where it was attended to by the opposite party. In the meanwhile on 22.1.1996 the complainant wrote Ext. P13 letter in which among other things he required the opposite party to replace the equipment. The equipment was sent back after duly attending the mal-functioning and it reached the opposite party on 3.2.1996 after curing the defect. Yet again reliance was placed by the learned Counsel that Exts. P20, P21, P23, P24, P25, P26, P28, P30, P35, P37, P38 and P39 to maintain that, there was similar problem in the equipment and the aforesaid service reports would show that, in spite of taking the machine to Bangalore and returned it after attending the repairs on 3.2.1996 oil leakage and such other mal-functioning continued. Therefore, on the basis of the service reports learned Counsel for the complainant maintained that the same would compel an inference that the equipment suffered from manufacturing defect, at least "defects'" within the meaning of Sec.2 (1) (f) of the Act.11. On the other hand the learned Counsel for the opposite party maintained that, the opposite party has a definite case to the effect that the equipment was not maintained properly and was not handled with proper care and attention as is required. In para 6 of the version of the opposite party, it is contended that, it was noticed by the technicians of the opposite party that the complainant was not maintaining the equipment properly which was the reason for various complaints he had made, in support of the said argument the learned Counsel for the opposite party drew our attention to Ext. P8. It mentions that spool stuck due to polythene paper gone inside and stucking 'o' ring and wiper ring found damaged. And they were repaired. In Ext. P31 complainant alleged that the machine has various mal-functioning and he requested the opposite party to extend the warranty for 2 years or 2000 hours and also despatch spare parts for repair. Thereafter, he wrote Ext. P32 and made a request for extending the warranty and to this the opposite party replied by Ext. P33. In the reply they asserted that, the failure of the Hose was not due to bursting, and it was clearly noticed that, the end fitting broke away due to external force due to which the remaining end fitting metallic tube portion was bent abnormally and that the broken away piece (nut portion) was not available for inspection. The rubber Hose portion was found intact without any damage even now and that the same was not due to manufacturing defect. They said in the said circumstances the same could not be considered under the warranty. It is also urged by the learned Counsel for the opposite party that, there are consumable parts like rubber parts which by wear and tear would require to be replaced. In Ext. P20 though the problem was oil leaking it says that when the 'o' ring was arranged the leakage was arrested. Ext. P25 the oil leakage was arrested by replaying 'o' ring. Likewise in Ext. P25 it is noted that, the engine oil sticky. That is an indication to show that when the engine oil had to be changed it was not attended. These service reports demonstrate one fact, there was prompt attention by the opposite party whenever defects or mal-functioning was reported, they attended and cured the defects by replacing the parts which were found to be worn out or suffered from any defect.12. The service reports also indicate that the mal-functioning could be on account of absence of proper management by persons who are qualified for handling such instruments. In such circumstance, it will be hazardous to conclude that the equipment suffers from manufacturing defect or defect as is defined under Sec.2 (1) (f) of the Act merely looking at the such service report alone. In the decision reported in I (1997) CPJ 107 (NC), the National Commission adverted to the relevancy and probative value of a certificate issued by the Technical Service Engineer in the service of the Revision Petitioner Company, the contention was tyre was suffering from manufacturing defect. It was observed that, the said certificate cannot be accepted as an expert opinion which could be relied upon for deciding the issue as per Sec.13 of the Consumer Protection Act. The National Commission observed that "the proper procedure which should have been followed by the District Forum, was to get the tyres examined by a technical expert nominated by it with the concurrence of both sides and to go by the opinion of such expert after giving the parties due opportunity to place their representation before the District Forum in respect of the said opinion and if necessary, even to cross-examine the expert. Inasmuch as the said procedure contemplated under Sec.13 was not followed we are of opinion that the order passed by the District Forum was vitiated by material irregularity and it should not have been confirmed by the State Commission which "did not even make any advertance to this crucial aspect". This decision in our opinion would maked clear the necessity of an expert opinion where the expertise is necessarily to decide whether the goods suffer from "defect'. The ratio of the decision is, when the case is that there is defect'/manufacturing defect the procedure under Sec.13 of the Act has to be followed.13. The question whether the alleged mal-functioning was as a result of defects/ manufacturing defect or whether the same was due to the failure to operate the equipment with care and expertise as is required, has to be judged with the aid of expert evidence. In this connection, it is necessarily to advert to the memorandum dated 17.3.1998 submitted by the complainant. It is submitted by the learned Counsel for the opposite party that after examination of PW1 my predecessor suggested that the complainant may take out an expert commission to examine the equipment. It is in response to that the said memorandum was filed by the complainant. Paragraph 2 thereof states that it is suggested that an expert may be appointed as Commissioner to examine the equipment involved in this complaint. The complainant proceeds to state that, the complainant is unable to suggest an expert Commissioner to examine the equipment. In para 36 of the complaint it is asserted that, the manufacturing defect as revealed in the several service reports prepared by the service engineers of the opposite party indicate that vital defect is with respect to the Hydraulic system. In the to aforesaid statement his statement that he is unable to suggest an expert cannot be accepted because the complainant has sworn in his evidence that, he has got another equipment of the same type from another Company normally therefore, he should be aware of the experts attending that machine. The fact remains that, since the burden in this regard is on the complainant he should have taken out a Commission to prove the allegation that the mal-functioning was the result of defect/manufacturing defect.14. The learned Counsel for the complainant relied on the decision reported in M/s. Saguna Automobiles and Anr. V/s. S. Selvaraj and Ors., 1992 2 CPJ 754, to maintain that, it is not necessary under the provisions of the Consumer Protection Act that there should be any manufacturing defect; it is enough that there is 'defect' under Sec.2 (1) (f) of the Act. But then with due regard to the complex technical questions that arise and also the volume of service reports, it may not be possible to draw an inference as to the cause for the mal-functioning merely looking at the symptoms noted in the service reports. Had an Expert Commission been taken out, in arriving at his opinion after examining the equipment, he could peruse these service reports also to arrive at a conclusion whether the equipment suffers from 'defect' as is understood under the Act. As is pointed out in the decision of the National Commission reported in I (1997) CPJ 107 (NC) referred to earlier, it was necessary, in the circumstances, to pursue the procedure enjoined in Sec.13 of the Act by taking out an expert Commission to report as regards the same and also to report how far the said mal-functioning could affect the working of the equipment and the loss, if any, might have been sustained thereby. Absence of this vital piece of evidence would affect the merit of the complainant's claim.15. It was submitted by the learned Counsel for the complainant that such report of the Commissioner is not necessary in the context of the service reports by applying the principle of res ipso loquitor. Reliance was made by the learned Counsel on the decision in T. T. Private Limited V/s. Akhil Bharathiya Grahak Panchayat,1996 2 CPJ 239. The said decision arose in a case where a pressure cooker exploded causing severe injury to the wife of the complainant. There it was held that, in the absence of proof of misuse, the aforesaid principle would apply. In answer to the said contention, the learned Counsel for the opposite party submitted that, when there is statutory provision under Sec.13 which requires that expert evidence is needed; service reports are not sufficient. The cause of mal functioning is the real question to be resolved. Ext. P8 service report shows that the mal functioning was due to polythene paper seen to have been sucked in the equipment and when the same was removed it functioned properly. Then, as already noticed Ext. P33 states that fittings broke away due to external force. These instances support the opposite party's case that the equipment was not handled with care as is required. In the decision reported in II (1996) CPJ 239 (NC) referred to early can be distinguished on facts. There when the wife of the complainant was cooking using cooker, it exploded. A situation like that would speak itself to the effect that unless there was defect in the manufacturing, it would not have exploded. In such case the burden would shift on the opposite party to prove misuse. The application of the said principle would depend upon the nature of the accident. There the whole equipment - cooker exploded and was destroyed. Here, no such situation exists. In fact even according to the complainant except when the equipment was removed to Bangalore, there was no total arrest of its functioning. In fact the case is because of the alleged mal-functioning it could not gain as much capacity as was expected of it. It is not a case due to the mal-functioning the further use of the machine became impossible. Therefore, the principle enunciated in the aforesaid decision cannot be readily applied to the facts of this case; it is particularly so in the context of the decision of the National Commission reported in I (1997) CPJ 107 (NC) (supra ). The argument of the learned Counsel for the complainant on the basis of principle of Res Ipso Loquitor on this aspect cannot be accepted.16. The learned Counsel for the complainant sought to maintain, the service by the opposite party was not satisfactory, and the complainant had to incur material loss because of the non-functioning of the machine as is expected. It is pointed out that the equipment was suffering from the mal-functioning noted in the service reports, as a result of which the expected performance could not be achieved. Therefore, it was urged that, the complainant is entitled to compensation. The learned Counsel made reliance on a decision reported in Amtrex Ambience Limited V/s. M/s. Alpha Radios and Anr., in support of the aforesaid argument. What is urged is, since the opposite party failed to remove the defect that would amount to deficiency of service. In that case the opposite party did not remove the defect though informed; therefore a direction was made to the opposite parties to remove the defects and also granted Rs.10,000/- as damages by the State Commission. The National Commission confirmed the said order. The opposite party before the State Commission remained ex-parte. It must be immediately observed that, no direction to remove the defects, even if it is called for in the facts and circumstances of the case, is not possible because admittedly on the date of complaint the complainant was not in possession of the equipment, and the financier who seized the same as per hire purchase agreement is not made party to this proceedings. What is highlighted by the learned Counsel in this regard is that from 9.9.1997 the operation was slow as could be seen from Exts. F40, P41, P42 and P44. As has already noticed there is no complaint for the complainant as to deficiency of service. The complainant has admitted in his evidence that he has no complaint that he did not get service, but he added that inspite of the service the equipment did not work properly. The learned Counsel for the complainant also relied on the decision reported in II (1992) CPJ 754, wherein Rs.5,000/- was awarded for mental agony. What is seen from the service reports is, whenever replacement was required the opposite party replaced the spare parts and attended the same. As to the nature of service to which the complainant is entitled under the warranty, the National Commission in the decision reported in Amtrex Ambience Limited V/s. M/s. Alpha Radios and Anr., made it clear that, even where the equipment is sold for commercial purpose the complainant would be a consumer under Sec.2 (1) (d) (ii) in respect of service rendered or to be rendered by the seller for the proper functioning of the machine/ equipment during the period of warranty. Sec.2 (1) (d) (ii) concerns the hiring or availing of service for consideration. So even if in a given case the equipment was purchased for commercial purpose during the period of warranty the purchaser will be treated as a consumer, with respect to the service to be rendered in terms of the warranty. Where there is defect in the goods as per Sec.14, direction can be made to remove the defect, replace goods with new goods or return the price of the goods. In the case of service he can be directed to remove the defect or deficiencies in service in question and if the consumer suffered injury due to negligence, compensation can be awarded. When the prompt attention was given whenever defects are pointed out and spare parts supplied free of costs, the factor to be reckoned in considering where compensation can be awarded whether the grievance is, inspite of rectification the equipment continued to mal-functioning, is to see how it has affected the performance, if so, what is the loss suffered by the complainant. There is only allegations and counter allegations as regards the same. The equipment and it nature of functioning is such that when evidence as to the quantification is feasible and possible, and the same is not secured, approximation of the alleged loss suffered by the complainant may not be possible. Whether or not such approximation of compensation is possible or not will depend upon the facts of each case. In this regard Counsel for the opposite party relied on the decision reported in, Escorts Tractors Limited Company V/s. Gajanand and Ors., 1997 2 CPJ 455, of the Rajasthan State Commission, in support of his contention that, the opposite party since has attended without any negligence no compensation can be awarded. In that case the Rajasthan State Commission dealt with a case falling under Sec.2 (1) (f), the equipment was a tractor. The complainant alleged manufacturing defect and he also sought to maintain that the tractor is consuming more engine oil. The evidence showed though the Head gasket changed twice by the opposite party free of cost still it consumed more oil. The question considered was, whether the opposite party was liable to replace the engine. It was held that, the complainant having failed to establish manufacturing defect and the necessary replacement having been done and the remedy to remove possible causes to avoid, carried out free of cost, the complainant was not entitled to get compensation. On the basis of the decision it was urged strenuously, in the con text and nature of the complaint since the opposite party has carried out the works in the machine he is not entitled to compensation. Apart from this it was a case where the complainant should have taken out a Commission to report as to the reason for mal-functioning of the equipment; whether the same was due to manufacturing defect/defect or due to rough handling and also to report in the context of the service reports, what could be the loss incurred by the complainant on account of the alleged non-performance of the equipment. Since this was not secured by the complainant, as we have already indicated, a rough estimate as to the alleged reduction of working hours and the consequent loss incurred by the complainant may not be possible. It is an admitted case that the complainant has another equipment of the same type. With due regard to the income that he claims for this equipment, his income from both should be such that normally he must be paying income-tax. Then he would be in possession of records which would show the details of his earning from the equipments. They could have thrown light on the question whether his income was reduced, and also what was the income that he actually got from this equipment - such details could have enabled to make an assessment of the compensation, if any, to which he is entitled. But those records are not produced.17. In this context we may refer to Ext. P43, the warranty. The 3rd paragraph therein states that- "the foregoing warranty is exclusive and in lieu of all other warranties. Whether written, oral or implied (including any warranty of Merc Chantability of Fitness For Purpose ). The liability of the Company (except as to title) arising out of the sale, use or operation of Company Products, whether on warranty, contract or negligence shall not in any event exceed the cost of furnishing a replacement for the defective Part as hereinabove provided and upon the expiration of the warranty period as hereinabove provided, as such liability shall terminate. The foregoing shall constitute the sole remedy and the liability of the Company. " This clause would limit the liability of the opposite party. There is no grievance to the effect that the opposite party failed to replace any defective part. Therefore, in terms of the warranty the claim of compensation as is now sought to be maintained may be inconsistent with the terms in the warranty. In Ext. P31 dated 8.10.1996 after narrating the alleged defects in the equipment all that the complainant sought was extension of warranty period for 2 years/2000 hours and confirmation letter in that regard, dispatch spare parts needed for repairs and replacement of the whole parts. Admittedly Ext. P43 warranty was extended for 1 year or 1500 hours with effect from 3.2.1996. There is no case that the spare parts were not supplied. In Ext. P31 no other grievance was raised. This is also an indication that the complainant at that stage did not contemplate of claiming compensation.18. Incidentally it is necessary to note that, in the complaint itself it is admitted that, the equipment was seized by the financier. Ext. P31 document which we have admitted is a letter addressed to the opposite party by the financier. It is relied on for the purpose of showing, the equipment is working after seizure and the financier has leased out the same to another person and the service report also produced. The probative value of the document is much less as the documents came into existence after institution of the complaint.19. From the foregoing discussion what comes out is, though the complainant can be treated as a consumer for the purpose of service as per the condition of Ext. P43 warranty, the claim for compensation has to be disallowed on account of the fact that the evidence as demonstrated earlier does not show that the claim is consistent with what is required to be proved, particularly as to the condition of the equipment and also as to the loss incurred by the complainant as a consequence of the alleged mal-functioning of the equipment. Points found against the complainant.20. Points 5 and 6 : In view of our findings in points 2 to 4, point No.5 is found against the complainant and in accordance with the same the complaint has to be dismissed. We do so. Issues found accordingly.21. In the result the complaint is dismissed, but in the circumstances of the case there will be no order as to costs.