Brief fact of this case is that, Complainant Sri Budhadev Samal purchased an old Omni Bus BoleroXLZWS in a less price from OP1 with an advance money of Rs.10,000/0 on dt.01.02.2019 against the vehicle No.OD-07-G-9902 which stands in the name of  on N.TITU Dora of Chikili,Khallikote as the said vehicle was earlier sold by the original owner to OP.1. The complainant met OP.3 Finance Company and it was agreed to take an advance  of Rs.3,18,00/- out of total estimated cost of Rs.5,30,000 and the said amount may be recovered in 35 instalments from 02/2019 @ Rs.12,150/-.The entire loan amount may be paid to the OP.No.1. After receipt of full consideration money Op.No.1 delivered the vehicle to the complainant on dt.22.02.2019 and during delivery promised to handover all the vehicular documents after changing the ownership from earlier owner to present complainant within a month to enable the complainant to run the vehicle on road for his livelihood. Even after lapse of 9months the OPNo.1 not yet handed over the documents to the complainant without using the vehicle as the ownership has not yet changed in favour of the complainant for which the complainant is facing heavy financial loss and the complainant is clearing the regular instalments from his own pocket. The complainant requested the OP.No.1 several times to handover the vehicular documents and the Op.No.1 is avoiding handing over the same despite receipt of full and final consideration amount causing mental agony and physical harassment which results deficiency of service. The complainant has paid  to Op.No.1 the Finance amount of Rs.5,30,000 +10,000.00 as advance and incurred a sum of Rs.27,800-00 towards instance amount in favour of earlier owner from 16.02.2019 to 15.02.2020 and Rs.8,851-00 towards documentation charges and processing fees for sanction of loan and further a sum of Rs.55,734-00+38,500-00 to State Transport Deptt. Ganjam  towards Tax in favour of previous owner. As such, the total amount of Rs,6,70,885 became idle for complainant as the OP.No.1 not yet supplied the vehicular document so liable to refund the said amount of Rs.6,70,885/- with Rs.1,00,000/- towards compensation for mental agony and financial loss comes a total amount of Rs.7,70,885-00 to the complainant.

The complainant relies upon the following documents:

1. Xerox copy of R.C.Book of OD-07-G-9902.
2. Smart card.
3. S.T.Deptt.Ganjam Receipt Dt.19.2.2019 for Rs38,500/-.
4. –do-                                  Dt.9.2.2019 for Rs.55,734/-
5. Insurance paper.
6. Receipt No.144 dt.01.02.2011 of OP.No.1.
7. Delivery Note dt.22.02.2019 of OP.No.1.
8. Payment schedule of OP.No.3..2 pages.
9. Bank pass Book showing payment of instalments to Op.No.3..2pages.
10. Money receipt of Op.No.3..5nos. towards payment of EMI.

Under the above complain the case was admitted and notice issued to Ops.  In their written version the Op No.3 stated that the facts stated that the present complaint petition is not maintainable. The complainant has neither averred anything with regard to the deficiency in service nor regard to unfair trade practice adopted by the Ops thereby warranting interference by this Hon’ble Commission. The complainant is not a consumer according to the definition as provided under the Consumer protection Act-2019. It is pertinent to mention here that the Hon’ble Apex Court in Laxmi Engineering works- Vrs-PSG Industries Institute (AIR 12995 SC1428) has clearly held that if any person obtain any goods for commercial purpose with a view to use such goods exclusively for earning profits such person has to be excluded from the purview of Section 2(d) of the Consumer Protection Act,1986.Since there is no pleading in the consumer complaint that the complainant was using the vehicle for earning livelihood, therefore the present consumer complaint has to be dismissed on the said ground. Further it is stated that as per the clause of the Loan Agreement any dispute between the parties are to be settled by way of ‘Arbitration’ as per the provisions of the Arbitration and Conciliation Act-1996 and the clause of the said agreement defines the jurisdiction of such proceedings tried by courts at Mumbai. Therefore the instant complaint is not sustainable in the eye of law and the complaint is liable to be dismissed. The Ops stated that the above complaint is wholly false, frivolous and vexatious and is filed only with an intention to harass the Ops and make unlawful gain. Hence the above complaint is liable to be dismissed. In reply to the allegations made in the consumer complaint petition, the present Ops beg to state the followings to apprise this Hon’ble Commission that, the complainant had approached the Ops in the year 2019 for sanction and disbursal of the loan amount of Rs.3,18,000/- for purchasing a second hand/refinanced vehicle Mahindra Bolero Plus 9STR under hypothecation to the answering Ops. After being satisfied with the financial credibility of the complainant the Ops sanctioned and disbursed the loan amount of Rs,3,18,000/- agreement value (including interest) to be repaid by the complainant was Rs,4,39,130/- and an agreement to that effect was executed on 22.2.2019 vide Agmt.No.6028534. Present OP is not responsible for the registration of the hypothecated vehicle rather it is the duty of the borrower to get the vehicle registered at his own risk and to produce the proof of creation of hypothecation before the present OP within 15days of such registration as per the provisions of the loan-cum-Hypothecation Agreement read with section41(1) of the Motor Vehicles Act,1988.The complainant himself mention that the OP No.1 is responsible for providing the vehicular documents after transferring the ownership in the name of complainant from the name of previous owner. Hence, due to failure of the OP.No.1 the present OP cannot be held liable as no deficiency of service has been caused. The concerned vehicle is presently registered under R.T.O.Chhatrapur who by misinterpreting the law, is not entertaining applications for registration of new and refinanced vehicles and cancellation of Hypothecation in registration certificate where NOC has been issued in Form -35, in case of vehicles financed by the answering  OP citing reason of Invalid Trade certificate/Non- renewal of Trade certificate, though there is an interim order dt.24.7.l2018 passed by the Hon’ble High Court of Orissa in W.P.(C)/ 12122/2018 where in the Hon’ble HC has clearly mentioned that “ The Authority will not refuse in registering the vehicle, however making an application for issuance/renewal of Trade certificate will subject to the final outcome of the Writ petition”. After receipt of this order the R.T.O. again by misinterpreting the order though started registration and cancellation of hypothecation in case of newly financed vehicles, continued to refuse acceptance of application of refinanced vehicle. Hence, the answering OP filed another Writ application vide W.P.(C)/11070/2020 dt.23.3.2020 against the State Transport Authority,Cuttack and R.T.O.Chhatrapur seeking direction to the R.T.O. to entertain the applications  which is pending since then without being listed due to pandemic situation and as only extremely urgent matters are getting listed before the Hon’ble HC since April2020 till now (Annexure-B series enclosed).In order to save it’s customer from undue hardship the answering OP decided to volume transfer the refinanced vehicle registered under R.T.O. Chhatrapur to R.T.O.Bhubaneswar and issued NOC to the present OP No.1 so that ownership of this particular vehicle from the previous owner to the present complainant can be done smoothly. The OP No.1 is not taking any step for transfer of ownership in the name of the complainant, even after submission of all the requisites as well deposit of Rs.10,000/- by the complainant for RC work as and when demanded by the OP.No.1. Copy of the NOC issued to the OP No.1 addressed to RTO Chhatrapur is annexed herewith as Annexure-C. It is therefore prayed that as per the facts and circumstances mentioned above the OP.No.3 is no way liable for any negligence or deficiency in service for which the petitioner has suffered any mental harassment and prayed to absolve this OP.3 from all the allegations made herein the instant petition.

The OP No.3 relies upon the following documents:

1. Annexure-B series.
2. Annexure-C.

On the above pleadings the following issues are framed to decide the case.

1. Whether the case is maintainable?
2. Whether any cause of action arises on this case?
3. Whether Ops have made any deficiency of service?
4. Whether the complainant is entitled to get any relief sought for?
5. The case is barred for Non-joinder &mis- joinder of necessary parties.                                         

FINDINGS                                       

The complainant purchased a vehicle from OP.1 and refinanced the said vehicle bearing No.OD-07-G-9902 ,Chasis No.MA1WG2GHKE5L62639 and Engine No.GHE4L56590 before OP.3. The said vehicle was earlier sold by N.TITU Dora (OP.2) to OP.1.After receiving full and final consideration money of Rs.3,18,000.00 from OP.3 towards finance amount with an agreement to repay the said amount in 35 instalments by complainant. The OP.1 delivered the said vehicle to the complainant and promised to hand over the vehicular documents after changing the ownership from earlier owner to present complainant. The Op.1 could not changed the ownership in favour of complainant nor supplied any vehicular documents. The complainant has sustained a loss of Rs.6,70,885.00 as prayed along with compensation.

                 On the other hand OP.3  Finance Company has issued NOC in Form No.35 in case of vehicles financed by the answering  OP citing reason of Invalid Trade certificate/Non- renewal of Trade certificate, though there is an interim order dt.24.7.l2018 passed by the Hon’ble High Court of Orissa in W.P.(C)/ 12122/2018 where in the Hon’ble HC has clearly mentioned that “ The Authority will not refuse in registering the vehicle, however making an application for issuance/renewal of Trade certificate will subject to the final outcome of the Writ petition”. In this case the R.T.O.Chhatrapur has refused to accept the application of refinanced vehicle for which the OP.3 again filed a writ petition vide W.P.(C)/11070/2020 dt.23.3.2020 against the State Transport Authority,Cuttack and R.T.O.Chhatrapur seeking direction to the R.T.O. to entertain the applications OF Registrat5ion and cancellation of hypothecations especially in the cases of refinanced vehicles financed by the answering OP which is pending since then without being listed due to pandemic situation and as only extremely urgent matters are getting listed before the Hon’ble High Court since April till now.

                        OP.3 to save his customer from  undue hardship decided to volume transfer the refinanced vehicle registered under R.T.O.Chhatrapur to R.T.O.Bhubaneswar and issued NOC to Op.1 for smooth registration of ownership. The complainant has deposited Rs.10,000.00 towards registration works before OP.1.

                        In t he above circumstances this commission decided to pass order on merit due to absent of complainant.

                        So far as the Registration of vehicle is concerned OP.1 has neglected in his duty, Op.3 being the proforma defendant has supported and supplied various documents for Registration works but OP.1 remained silent. Till date no answer has given by OP.1&2. Op.1 is solely responsible for negligence he has made deficiency in service. So the complainant is entitled to get the reliefs sought for.

ORDER

                        OP.1 is directed to handover the vehicular documents against the vehicle bearing Regd.No. OD-07-G-9902 after changing the ownership in favour of the complainant within 45 days of this order. If Op.1 failed to comply this order is directed to pay Rs.7,70,885.00 to complainant and take return back the vehicle.