ORDER
B.K. Taimni, Member
1. The appellants were opposite party Nos. 2 and 3 before the State Commission.
2. The respondent No. 1 had filed a complaint alleging deficiency in service on the part of appellants as also the second and third respondents.
3. The brief facts of the case leading to the complaint were that the first respondent-complainant M/s. Sahuwala Cylinders Limited purchased a diesel generator set from second respondent Viprah Technologies Limited, which carried a warranty clause. It is stated that within no time, the D.G. set developed several technical problems. On a complaint being lodged, the appellants inspected the set and gave a report on 25.5.1996. Since the defects were not removed and the D.G. set could not be made functional, a complaint was filed before the State Commission, who, after hearing, held party Nos. 1 to 3 jointly and severally liable to supply an alternator (old model) to the complainant within a period of four weeks from the date of the order or in default, to pay the complainant Rs. 11,69,396.80 from the appellants and the second respondent along with compensation of Rs. 1,00,000/- and cost of Rs. 5,000/- each payable by the appellants and second respondent.
4. Aggrieved by this order, the appellants, who were respondent Nos. 2 and 3 before the State Commission have filed this appeal before us. We have heard the learned Counsel for the parties at length and also perused the material on record. There is no disputing the fact that as per material in the complaint, the diesel generator set was purchased by the complainant from the first opposite party, who is respondent No. 2 before us. The proceeds were received by the first respondent and at no stage the appellants were party to deal except at the time of commissioning the representatives of the appellants were present. As per the definition of the consumer under Section 21(d)(i), the complainant cannot be held to be consumer qua the appellants.
5. It is the contention of the learned Counsel for the second respondent Viprah Technologies Limited that they were merely a dealer of the appellants.
6. We have seen the agreement, which is called ‘Original Equipment Manufacturer’ (OEM), entered between the appellants and the second respondent. Clause 1 of the agreement leaves us in no doubt that second respondent Viprah Technologies Limited were authorized for the purpose of building diesel generating sets using engines supplied by the appellants. What was being supplied by the appellants, was the engine and not the diesel generating sets. They were being assembled by the second respondent Viprah Technologies Limited. We have seen that there is provision in this agreement on the point of ‘Dealership’ (Clause 9) but it is limited to deemed export 100% Export Oriented Units, and customers (be customers) who gets significant tax benefits in purchasing the genset directly from the appellants. In the instant proceedings, this is not even the defence or plea taken by any of the parties. All this shows that the appellants were not privy to the contract between the first and second respondents and by no stretch of imagination, the second respondent can be said to be dealer of the appellants and as mentioned earlier, the first respondent cannot be said to be consumer qua the appellants.
7. In our view, the State Commission erred in fastening responsibility by wrongly holding that the appellants are liable on the ground that the complainant is a consumer viz., qua the appellants. Appellants relationship with the second respondent is not in dispute but the former were to supply only the engine for the diesel generating sets. For the alternators, the supply was to be arranged within Clause 13 of the agreement. As per the material on record, vide letter dated 22.7.1997, the appellants carried out the repairs to the generator set, cost for repair was to be paid by the second respondent since he never paid the amount nor he came to collect the set. It is still lying with the appellants.
8. Learned Counsel appearing for the second respondent also challenged the inspection report carried out by the representatives of the appellants clearly showing the defects found out by them in D.G. Set. Learned Counsel appearing for the second opposite party stated that this is a self-serving report prepared by the appellants. Even if we, for argument’s sake, accept the proposition but it is also true that no other report about the defects in the diesel generating set is on record. No material has been brought on record other than this report to show that there were manufacturing defects or otherwise in the engine supplied for the generating set by the appellants.
9. We fail to understand as to under these circumstances how could the State Commission hold the appellants responsible and passed the direction?
10. In view of the above discussion, we find that there was no privity of contract between the appellants and first respondent. The second respondent was as per the terms of the agreement was OEM and the complainant was to be held consumer qua only the second respondent. If some action has been taken by the appellants, it is only to help the second respondent to tide over the situation. In view of this, we are unable to sustain the order passed by the State Commission qua the appellants, which is set aside leaving the second respondent Viprah Technologies Limited to comply with the directions issued by the State Commission. The second respondent shall be free to collect the diesel generating set from the appellants after paying the dues and instal the same in the company’s premises. The appeal is allowed in above terms. No order as to cost.