This appeal is directed against the final order of Ld. D.C.D.R.F, Jalpaiguri dated 06/02/2019 in reference to CC/41/2018. The case under the appeal in gist is that the respondent purchased a second-hand old grand magna car bearing reg. no. WB-74Al-0405 from Berlia Motors Pvt. Ltd on 04/04/2018 by paying consideration money of Rs. 4,25,000/- and four numbers of cash receipts were issued by the seller of the said vehicle. The actual registration owner of the said vehicle was one Pasang Lama Serpa who on exchange with a new one has sold out the said vehicle to the Berlia Motors Pvt. Ltd. who was the authorized dealer of Hyundai Motors. On that very day, the purchaser respondent Himangaisanga got a declaration executed by him about the said purchase of the vehicle which was handed over to him by the seller in good condition. At the time of said purchase, the seller assured him that the transfer of his name in the RT Department was to be completed within 14 days. Subsequently, since the date of purchase the respondent started to drive the vehicle for his personal use and on 7/06/2018 he met with a motor accident under Ghoksandanga P.S. In consequence, he borne a criminal liability under section 279/338/304A of IPC for the charge of offences of rash and negligent driving and causing the death of a person. The vehicle was seized by the concern P.S. Therefore he came to the seller of the vehicle that is Berlia Motors Pvt. Ltd. asking them to release the vehicle from the police custody and finally filed a consumer complaint under section 12 of the Consumer Protection for getting refund of the purchase money along with compensation, interest etc. on the ground that the seller did not mutate her name in the RTA in due time in spite of his repeated demand and for that reason, he felt that there was deficiency of service on the part of the seller Berlia Motors Pvt. Ltd.

            Berlia Motors Pvt. Ltd. had contested the case by filing written version and denied all the material allegations levelled against them and contended that since the date of sell, the Company had taken series of attempts to get registration of the vehicle in the name of the respondent and the original owner of the vehicle was also present in many occasion in RTA for such mutation but the respondent/complainant intentionally did not appear before the RTA for mutation of his name. The further case of the appellants is that the respondent himself has been negligent and on the contrary, the complainant has filed the consumer complaint for his illegal gain and profit. The original registered owner of the vehicle also submitted her written statement and contended that she on the request of the Berlia motors Ltd. for transferring the owner ship of the vehicle but the respondent/complainant never came to the RTO office for such transfer. Ld. Forum after recording the evidences and after hearing the arguments delivered the impugned final order where the Forum has asked the appellants to refund the value of the vehicle to the tune of Rs. 4,25,000/- and to pay interest at the rate of 9 per cent per annum and also to pay Rs. 1,00,000/- for compensation, Rs. 15,000/- as litigation cost and fine of Rs. 10,000/- which to be deposited in the consumer legal aid fund. The complainant/respondent was also directed to execute all relevant documents in favour of the appellants so that they could take legal action for releasing vehicle from the police custody.

            Being aggrieved with this order this appeal follows on the ground that the complainant was himself liable for his own negligent act and for that reason he was not entitled to get any relief under the provisions of section 12 of the Consumer Protection Act and the findings of the Ld. D.C.D.R.F, Jalpaiguri was based on misappropriation of fact and circumstances. The appeal was admitted on its own merits and the complainant/respondents was served notice who has contested the case through legal representative. The original registered owner of the vehicle did not contest the appeal.

            Accordingly, the appeal was heard in presence of the contesting parties through their legal representatives.

DECISIONS WITH REASONS

Admitted position is that the proforma respondent Pasang Lama Serpa was the original owner of the vehicle in question who sold out the said vehicle to Berlia Motors Pvt. Ltd. on exchange of getting new one. Berlia Motor has kept the vehicle in their showroom for resale it. The complainant/respondent was agreed to buy the said vehicle and has paid Rs. 4,25,000/- as price of the vehicle and took possession of the said vehicle on that very day.

The fact remains that since the purchase of the said vehicle he got a single paper that is declaration of purchase and started to ply the vehicle by driving himself for his own purpose and within a short span of time, he met with a road accident and caused a death of a person for his negligent driving and thereafter, FIR was registered against him and he got release on bail and the vehicle was seized by the investigating agency which could not be released by the complainant/respondent as the vehicle was stood in the name of original owner Pasang Lama Serpa. Thereafter he initiated the consumer complaint case which clearly speaks that after the accident and after the seizure of the vehicle all his initiative was started and before that there is no single document to hold that he approached the Berlia Motors Pvt. Ltd. for mutation of his name in the Motor Vehicle Dept. as new registered owner of the vehicle in question.

            During the course of argument, it is pointed out by the Ld. Advocate of the appellant that appellant Company was always in touch with the respondent and they took the registered owner Mrs Sherpa to the RTO office on settled dates with the complainant/respondent for mutation of the name of the complainant thereon. But, the complainant somehow failed to appear there and as a result the process of transferring the ownership of the vehicle could not be materialized due to latches on the part of the complainant/respondent. The further argument of the Ld. Advocate of the appellant is that the respondent himself is a very negligent person and the appellant Company had many times intimated and requested the complainant and proforma respondent Pasang Lama Serpa to appear before the RTO for transferring the ownership. He further submits that the complainant has instituted the case only after the vehicle met with an accident just to avoid the unnecessary harassment and tried to shift his own burden and to overcome his own fault. Ld. Advocate at the time of argument further mentioned that while the vehicle was seized by the Police the appellant Company took proper initiative and contacted with the actual owner Mrs. Pasang Lama Serpa and could release the vehicle from the custody of police and now after necessary repairment of the vehicle they have kept it under their custody and they are always ready to hand over the said vehicle to the complainant/respondent and want to take full responsibility to mutate the name of the ownership of the vehicle in the name of complainant/respondent within a short span of time.

            Ld. Advocate of the respondent countered this argument to the score that his client the respondent since the purchase of the vehicle has come to the showroom of the appellant in many occassions and requested their employees for mutation of his name. But after sell out of the vehicle the Company was avoided the responsibility for such mutation and as a bona fide purchaser he had to suffer a lot due to apathy on the part of the seller of the vehicle. After hearing both sides and after going through all the material documents placed before this Commission we find that there was a wrong doing on the part of the complainant/respondent as because until his name was mutated regarding the ownership of the vehicle before the Competent Authority, he was not empowered to ply the vehicle on road as there was legal barrier on his part as because the registered owner was always liable for any road accident if the vehicle met, though, the vehicle was under the possession ship of another person.  Here, for his act and wrong doing an innocent registered owner of the vehicle was trapped in a wrong position while the vehicle was seized after the accident and she had to take all the burden to release the vehicle as actual registered owner of the same.

            We know very well that Consumer Protection Act is basically guided under the provisions of law of equity, though law of equity is not the statutory Act or codified law in our country. But the principle of law of equity are very much mingled in various provisions of beneficial legislations. One such piece of legislations is Consumer Protection Act where law of equity has a strong place. It is also settled principle of law that one who seeks equity must come with clean hands. Here, the complainant/respondent does not come in clean hand. He had negligent on his part. Firstly, he drove the vehicle without mutating his name before the RTA. Secondly, no document could be produced to the score that he approached the seller to mutate his name immediately till he met with the road accident. Rather the registered owner of the vehicle categorically mentioned in W.V that she appeared before the RTA office at the instance of the appellant Company for mutation of the ownership of the vehicle. But the new purchaser did not appear there for such purpose of mutation. So, the order of Ld. Forum appears to us is completely based on misconception of facts and circumstances. And for that reason, the order of Ld. Forum should be interfered in order to protect the interest of all concerned party to this case in a justified manner.

            Thus, the appeal succeeds.

Hence, it is ordered: -

The appeal be and same is hereby allowed on contest without any cost. The order of Ld. D.C.D.R.F, Jalpaiguri dated 06/02/2019 in CC/42/2018 is hereby set aside. The respondent Himangaishanga is entitled to get back the vehicle in question that is old grand 110 magna car bearing reg. no. WB-74AL-0405 within one month in ‘OK’ condition as if on the date of purchase dated 04/04/2018, if he wants to get return of the said vehicle and the appellant Company then shall hand over the same to the complainant/respondent and within 15 days they shall take every initiative to get registration of the vehicle in the name of the complainant.

            If the complainant/respondent does not want to return back the vehicle then the appellant company will refund him Rs. 4,25,000/- at a time within one month from his demand, failing which 9 per cent per annum as interest will be carried on over the purchase money of the vehicle. The order of Ld. Forum in respect of the direction to pay Rs. 1,00,000/- as compensation, litigation cost Rs. 15,000/- and fine of Rs. 10,000/- are hereby rescinded.

            Let a copy of this order be supplied to the parties free of cost and the same be communicated to the Ld. Concerned Forum through e-mail.