ORDER Justice P.S. Rana (R) President —Present appeal is filed under section 15 of Consumer Protection Act 1986 against order passed by Learned District Forum in consumer complaint No.419/2011 title Narinder Singh v. M/s. Mahindra & Mahindra & Ors. decided on 28.04.2016 . Brief facts of Case: 2. Narinder Singh complainant filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is unemployed and he purchased Bolero Pickup vehicle from M/s. Garg Motors Hisar Road Sirsa for his livelihood. It is pleaded that complainant purchased vehicle vide bill No.12A000327 from M/s. Garg Motors Hisar Road Sirsa in consideration amount of Rs.510000/- (Five lac ten thousand) on dated 29.06.2011. It is further pleaded that complainant detected cracks in cargo box of vehicle on 23.09.2011. It is pleaded that complainant immediately reported the cracks in the cargo box to opposite party No.2 i.e. M/s. Garg Motors Hisar Road Sirsa. It is further pleaded that opposite party No.2 asked the complainant to contact opposite party No.3 M/s. Snow view Automobiles Private Ltd. authorised dealer of the company. It is further pleaded that when complainant approached opposite party No.3 then he was told by the opposite party No.3 that complaint is within warrant period. It is further pleaded that opposite party No.3 assured that cargo box of vehicle would be replaced free of costs at the expenditure of the company within fifteen days. It is further pleaded that when complainant approached office of opposite party No.3 after fifteen days he was told to again approach opposite party No.2 from where complainant purchased vehicle. It is further pleaded that complainant again approached M/s. Garg Motors Hisar Road Sirsa and he was told that complaint has been forwarded to head office of company located at Mumbai. It is further pleaded that when again complainant approached M/s. Garg Motors Hisar Road Sirsa he was informed that complaint along with recommendation has been transferred to Snowview Automobiles Private Ltd. Shimla i.e. local dealer of company. It is further pleaded that when complainant again visited local dealer of company he was told to deposit 50% of the amount which would be incurred for repair of cargo box. It is further pleaded that complainant agreed to deposit 50% amount which was calculated about Rs.50000/- (Fifty thousand) but opposite party No.3 retracted offer. It is further pleaded that when complainant again visited local dealer of company he was told to deposit 50% of the amount which would be incurred for repair of cargo box. It is further pleaded that complainant agreed to deposit 50% amount which was calculated about Rs.50000/- (Fifty thousand) but opposite party No.3 retracted offer. Complainant sought relief of Rs.72000/- (Seventy two thousand) i.e. estimate cost of new cargo box. In addition complainant sought relief of monthly loss of income to the tune of Rs.24000/-.(Twenty four thousand) In addition complainant also sought relief of mental harassment to the tune of Rs.15000/- ( Fifteen thousand). In addition complainant also sought relief of costs of complaint to the tune of Rs.10000/-( Ten thousand) 3. Per contra version filed on behalf of opposite parties No.1 & 3 pleaded therein that complaint is not maintainable. It is pleaded that complainant has concealed material facts. It is pleaded that learned District Forum has no territorial jurisdiction to adjudicate the complaint as complainant has purchased vehicle from M/s. Garg Motors Hisar Road Sirsa which is in Haryana. It is pleaded that consumer Forum situated at Sirsa has jurisdiction to adjudicate the complaint. It is further pleaded that complainant himself has misused vehicle and violated the warranty condition. It is pleaded that complainant had made addition and alterations in the vehicle. It is further pleaded that complainant had also effected service of vehicle from unauthorized service station. It is further pleaded that complainant is not a consumer under Consumer Protection Act 1986 because complainant has used the vehicle for commercial purpose. It is further pleaded that complainant has overloaded the vehicle beyond capacity of vehicle. It is further pleaded that cracks in the cargo box was not manufacturing defect. It is further pleaded that cracks have resulted on account of complainant''s acts, conducts and deeds. Prayer for dismissal of complaint sought. 4. Learned District Forum allowed the complaint and ordered opposite party No.1 M/s. Mahindra & Mahindra Ltd. to pay a sum of Rs.100000/-(One lac) to the complainant within 45 days from the date of receipt of copy of order. Learned District Forum further directed opposite party No.1 to also pay interest at the rate of 9% per annum from the date of filing of complaint till the date of actual payment. Learned District Forum further directed opposite party No.1 to also pay interest at the rate of 9% per annum from the date of filing of complaint till the date of actual payment. Learned District Forum further directed that opposite party No.1 would pay a sum of Rs.10000/- (Ten thousand) to complainant as litigation costs. Feeling aggrieved against order passed by Learned District Forum opposite party No.1 M/s. Mahindra & Mahindra Ltd. filed present appeal before State Commission. 5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 6. Following points arises for determination in present appeal. 1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No.1 with reasons: 7. Complainant did not file any evidence by way of affidavits before learned District Forum. Learned Advocate appearing on behalf of complainant on dated 02.07.2013 has given written statement before learned District Forum to the effect that complaint and documents annexures C-I to C-6 already filed with complaint be read in evidence and closed evidence. 8. Opposite parties also did not file any evidence by way of affidavits before learned District Forum. Learned Advocate appearing on behalf of M/s. Mahindra & Mahindra Ltd. on dated 17.11.2014 has given written statement before learned District Forum to the effect that reply already filed be read in evidence and closed evidence. 9. It is held that there is difference between pleading and evidence. It is held that disputed facts are always proved by way of evidence. It is held that complaint and version filed by parties cannot be treated as evidence as per law. It is held that complaint and versions filed by parties could be treated as pleadings of parties only as per law. 10. Submission of learned Advocate appearing on behalf of appellant that learned District Forum did not obtain report of expert relating to manufacturing defect in cargo box prior to giving findings of manufacturing defect in the cargo box and on this ground appeal be accepted is decided accordingly. We have carefully perused order passed by learned District Forum. Learned District Forum has held that there was inherent manufacturing defect in cargo box. It is held that finding relating to inherent manufacturing defect can be given only by way of expert evidence. We have carefully perused order passed by learned District Forum. Learned District Forum has held that there was inherent manufacturing defect in cargo box. It is held that finding relating to inherent manufacturing defect can be given only by way of expert evidence. In the present case complainant did not adduce any evidence of expert by way of affidavit or by way of oral testimony of expert in order to prove inherent manufacturing defect in cargo box. In view of above stated facts we set aside the finding of learned District Forum relating to manufacturing defect in cargo box and we also set aside the liability of appellant relating to payment of Rs.72000/- (Seventy two thousand) qua manufacturing defect in cargo box. See 2016(4) CPR 412 (NC) title M/s. Tractor Dealer Farm Equipment and Machinery Company v. Ghanshyam Maurya & Ors. Also see 2010(1) CPJ 19 (NC) title Dr. K. Kumar Advisor (Engineering) Maruti Udyog Limited v. Dr. A.S. Narayana Rao & Anr . 11. Submission of the learned Advocate appearing on behalf of appellant that there was unauthorized modification by way of addition of two additional leaf springs in the rear part of the vehicle on the part of complainant and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Onus to prove that complainant has affected unauthorized modification was upon the appellant. Appellant did not adduce any evidence by way of affidavit or by way of oral testimony in order to prove unauthorized modification in the vehicle. Issue relating to unauthorized modification of the vehicle is issue of fact. It is well settled law that issue of fact should be proved by way of adducing positive evidence. In the absence of any positive evidence plea of appellant that there was unauthorized modification in vehicle is defeated on the concept of ipse dixit (Assertion made without proof). 12. Submission of learned Advocate appearing on behalf of appellant that vehicle was used for around about 10132 Kilometers within three months from the date of purchase of vehicle for commercial purpose and on this ground appeal be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Complainant has specifically mentioned in complaint that complainant is unemployed person and he has purchased vehicle for his livelihood. Complainant has specifically mentioned in complaint that complainant is unemployed person and he has purchased vehicle for his livelihood. Appellant did not adduce any positive cogent and reliable evidence in order to prove that complainant did not purchase vehicle for his livelihood by means of self employment. Explanation was added in Consumer Protection Act 1986 w.e.f. 15.03.2003 wherein it has been specifically mentioned that commercial purpose would not include goods bought and used exclusively for purpose of earning livelihood by means of self employment. In view of the explanation added in Consumer Protection Act 1986 w.e.f. 15.03.2003 in the definition of consumer it is not expedient in the ends of justice to accept the plea of appellant. 13. Submission of learned Advocate appearing on behalf of appellant that appellant is not under legal obligation to repair cargo box is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that warranty was given to complainant. It is held that there is difference between guarantee and warranty. It is held that in guarantee original article is replaced in to. It is held that in warranty only repair of defective article is conducted. It is proved on record that defect in cargo box occurred during the warranty period. It is also proved on record that defect was reported by complainant to the dealers immediately. It is held that opposite parties are under legal obligations to repair cargo box during the warranty period. Opposite parties did not repair cargo box during the warranty period. Hence it is held that opposite parties have committed deficiency in service. 14. Submission of learned Advocate appearing on behalf of appellant that learned District Forum Shimla H.P. has no territorial jurisdiction to entertain complaint is rejected being devoid of any force for reasons hereinafter mentioned. Jurisdiction of learned District Forum is defined under section 11 of Consumer Protection Act 1986. As per section 11 of Consumer Protection Act 1986 complaint can be instituted in a District Forum wherein opposite parties resides or wherein one of the opposite party reside or carries on business or wherein cause of action wholly or in part arises. In the present case opposite party No.3 i.e. M/s. Snowview Automobiles Private Ltd. is residing and carries business at Shimla within territorial jurisdiction of learned District Forum Shimla (H.P.). In the present case opposite party No.3 i.e. M/s. Snowview Automobiles Private Ltd. is residing and carries business at Shimla within territorial jurisdiction of learned District Forum Shimla (H.P.). Even part of cause of action arises to complainant at Shimla within territorial jurisdiction of learned District Forum Shimla H.P. when cracks developed in cargo box within territorial jurisdiction of learned District Forum Shimla. 15. Submission of learned Advocate appearing on behalf of appellant that complainant has himself violated terms and conditions of warranty and he is not entitle to any relief is rejected being devoid of any force for reasons hereinafter mentioned. Onus to prove violation of terms & conditions of warranty is upon appellant. Appellant did not adduce any evidence by way of affidavit or by way of oral testimony in order to prove violation of warranty condition. Violation of warranty condition is issue of fact. See 1997 (2) CPC 223 (NC) title New India Assurance Company v. P.P. Khanna . In view of above stated facts and case law cited supra point No.1 is decided accordingly. Point No.2: Final Order 16. In view of findings upon point No.1 above appeal is partly allowed. Order of payment to the tune of Rs.72000/- (Seventy two thousand) by learned District Forum qua manufacturing defect of cargo box in favour of complainant and against opposite party No.1 is set aside. Order of learned District Forum relating to costs of mental harassment and loss of earning to the tune of Rs.28000/- (Twenty eight thousand) is affirmed. Order of learned District Forum qua litigation costs to the tune of Rs.10000/- (Ten thousand) to the complainant is also affirmed. It is further ordered that opposite parties will jointly and severally repair cargo box within one month from date of order passed by State Commission. Order of learned District Forum is modified to this extent only. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.