DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Complaint Case No.: 25  OF 2010

Date  of  Institution  :  14.01.2010

Date   of   Decision  :  07.09.2011

Tejinder Singh Boparai son of Sh.Ranjit Singh, R/o VPO Sarawan, Distt. Yamuna Nagar (Haryana)

                                                                                    ---Complainant

V E R S U S

1]       BEE EMM Carbazar, SCO 4, Madhya Marg, Sector 7, Chandigarh through its proprietor.

2]          Sukhbir Singh son of Jaswant Singh, R/o Sugar Mill Road, Morinda (Punjab).

---Opposite Parties

3]       M/s. Mohindera Engg. Works, Plot No.25, Industrial Area, Phase-2, Ram Darbar, Chandigarh.

--- Proforma O.P.

BEFORE:            SHRI LAKSHMAN SHARMA                      PRESIDENT

                        SMT. MADHU MUTNEJA                    MEMBER

                        SH.JASWINDER SINGH SIDHU              MEMBER

Argued By:            Sh.Deepak Aggarwal, Advocate for the complainant.

Sh.Jai Pal Singh Advocate for OP-1.

OPs No.2 & 3 exparte.

PER MADHU MUTNEJA, MEMBER

1]             A complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) for non-execution of proper documents against the sale of a car.

                Briefly stated, the complainant had purchased a second-hand  Car from OP No.2 through OP-1 for Rs.2,78,000/-.  OP No.1 had assured the complainant that there would be no problem of documentations i.e. NOC etc. for transfer of the vehicle in his name.  Rs.2,68,000/- was paid at the time of sale and the balance amount of Rs.10,000/- was to be paid by the complainant to OP-1 on receipt of NOC of the vehicle.

                Surprisingly, the complainant has so far only received the photocopy of the R.C. of the vehicle, which too stands in the name of OP-3.  On enquiry, the complainant was told by OP-1 that that the Car originally belonged to OP No.3.  It had been purchased by OP-2 from OP-3.  However, OP-2 had not yet got the car transferred in his own name.  As the formalities for transfer of vehicle in the name of OP-2 was in process, the car could be transferred in the name of the complainant only after it was transferred in the name of OP-2. 

                The complainant has alleged that the car was delivered to the complainant by OP-1 on the assurance that he would provide the NOC of the vehicle very soon.  However, after taking delivery of the car from OP-1, the complainant had to face a lot of harassment on various occasions while plying the vehicle, on being questioned by the Traffic Police about the original documents of the car.  The insurance of the car, which stood in the name of OP-3 has since expired and cannot be transferred in the name of the complainant, who is still not the legal owner.

                Despite the complainant taking up the matter with OP-1 a number of times regarding the NOC and other documents of the car in question, OP-1 has kept on lingering the matter on one pretext or the other.  The complainant, thus, is not in position to legally ply the vehicle on the road as his own vehicle. 

                The complainant has alleged that Op-1 made him sign an affidavit.  As per this affidavit, the complainant has declared that he had purchased a Vehicle No.CH-03-Q-4043 Model 2004 Make Palio Diesel CH No.08058403, Eng. No.0067290 from Sukhbir Singh son of Jaswant Singh and has paid full and final payment and has received the possession of the vehicle on 16.4.2007 and from 16.4.2007 till date he was responsible for any challan, case, accident, theft and all other liabilities against this vehicle. (Ann.C-6)

                After receipt of affidavit (Ann.C-6), OP-1 has not taken any steps to provided NOC of the vehicle to the complainant, as a result the car has still not been transferred in the name of complainant. The complainant has thus filed this complaint with a prayer that OP-1 & 2 be ordered to refund the amount paid along with interest and compensation.

2]             After admission of complaint, notices were sent to the OPs.

                Sh.Jagdish Chand, Proprietor of OP No.1 appeared in person and gave the following statement on 01.04.2010:-

I have brought the NOC today and I am willing to hand over the same to the complainant on payment of Rs.10,000/- which is outstanding against the complainant.”

The statement of complaint was also recorded to the following effect:-

“Statement of Sh.Tejinder Singh Boparai, complainant in person.       

I have not brought the money today so I am not in a position to pay Rs.10,000/- to the OP.  We were not aware that the NOC will be given by the OP today in the Court.”

                But on all later dates OP-1 failed to honour his own statement recorded in the Forum on 01.04.2010 and never gave the NOC to the complainant. Instead OP-1 filed his written reply and submitted that the complainant had not paid any consideration to the answering OP and hence is not a consumer as per Section 2(d)(i) of the C.P.Act.  Further, OP-1 has submitted that they have no concern with the dealing between the complainant and OPs No.2 & 3.  They have further taken the preliminary objection that the car was purchased in 2007 by the complainant, and the case was filed on 25.1.2010, thus the complaint is time barred.

                On merits, OP-1 has denied that he ever acted as an agent between the complainant and OP-2 for purchase of a second-hand car. He has also not given any assurance to the complainant of any kind.  OP-1 is not the owner of the vehicle and has not received any money against it.  They have alleged that the documents prepared by the complainant are false and fabricated and do not bear any seal or signature of OP-1.  It has been pleaded that the allegation of the complainant that he was not aware of the ownership of the vehicle is false and fabricated as he has himself placed on record copy of the R.C. showing that OP-3 is the registered owner of the vehicle.  As per OP-1, the complainant has connived with OPs No.2 & 3 to implicate OP No.1 and thus has filed the present collusive complaint.  Denying all other allegations, OP-1 has prayed for dismissal of the complaint. 

                OP-2 himself appeared in person at the initial stage.  He did not file any reply.  Since none appeared on behalf OP-2 on 29.7.2010 therefore, he was proceeded against exparte on this date.

                As none appeared on behalf of OP-3 despite due service, hence it was also proceeded exparte vide order dated 26.2.2010.

3]             Parties led evidence in support of their contentions.

4]             We have heard the ld.Counsel for the complainant and ld.Counsel for OP-1 and have perused the record.

5]             The Ld.Counsel for OP-1 was asked about the NOC, which was supposed to have been provided by OP-1 as per his own statement dated 01.04.2010, but very surprisingly, he showed his inability to provide any such document to the complainant and stated that he had no such instruction from his client/OP-1.

6]             The grievance of the complainant, as per the arguments of ld.Counsel for complainant, is very apparent and genuine as despite purchase of the vehicle in 2007 and making a payment of Rs.2,68,000/- for the same, he has not been able to enjoy its use due to non-receipt of the requisite documents for getting it transferred in his name. This dilemma of the complainant is justified as he cannot use the vehicle as per his wishes.

7]             The car was originally registered in the name of OP-3, was bought by OP-2; but OP-2 has not got it registered in his name for the reasons best known to him and in the meanwhile, he has sold this vehicle to the complainant through OP-1.  The complainant had purchased the vehicle through OP-1 on his assurance that he would provide the NOC to him.

8]             The statement of OP-1 on 0-1.04.2010 leaves no doubt about the assertions of the complainant that he has yet to be provided the NOC of the vehicle.  As a result he only has physical possession of the vehicle.  It is  not transferred in his name.  It is very amazingly that OP-1 instead of helping the complainant to become the Owner of the Car has only made him a Watchdog by delivering him only the physical possession of the vehicle and not the NOC. 

9]             The willful absence of OP-2 from the proceedings proves that he has nothing to say in his defence against the assertions/allegation made by the complainant and that the same are correct. 

10]            OP-3 has no privity of contract with the complainant. 

11]            In view of the above facts & circumstances of the case, we allow the complaint against OPs No1 & 2.  OPs No.1 & 2 are jointly & severally directed to refund the amount of Rs.2,68,000/- to the complainant, received as consideration for the Car.  OPs No.1 & 2 are also directed to pay Rs.25,000/- as compensation for the harassment caused to the complainant and Rs.7000/- towards cost of litigation.

                This order shall be complied with by OPs No.1 & 2 jointly & severally within a period of 30 days from the date of receipt of copy of this order, failing which they shall pay interest on the amount of Rs.2,68,000/- @12% p.a. from the date of order till the date of actual payment besides payment of compensation and cost of litigation. 

12]            The complainant is directed to return the Car in question to the OPs on receipt of the aforesaid amount. 

13]            However, the complaint qua OP-3 stands dismissed as there is no contract between the complainant and OP-3 and no deficiency on its part is made out.

                    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

07.09.2011                                                    

(LAKSHMAN SHARMA)

PRESIDENT

 (MADHU MUTNEJA)

MEMBER 

(JASWINDER SINGH SIDHU)

MEMBER