DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No.145 of 8.4.2016

                                      Decided on:   29.3.2017

Suneet Kumar S/o Sh.Bhupinder Singh R/o H.No.3974/1, outside Sirhindi Gate, Patiala.

                                                                   …………...Complainant

                                      Versus

1. Mahindra & Mahindra Financial Services Limited, Sadhna House, 2^nd Floor, Behind Mahindra Tower, 570-P.B.Marg, Worli, Mumbai-400018 through its Managing Director, Mr.Ramesh Iyer.
2. Branch Manager, Mahindra & Mahindra Financial Services Limited, S.C.O.1^st Floor, Chhoti Baradari, The Mall, Patiala.
3. Jagdish Kathuria, Regional Manager, Mahindra & Mahindra Financial Services Limited, Meerut (U.P.)

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt. Neena Sandhu, President

                                      Smt. Neelam Gupta, Member                              

ARGUED BY:

                                      Sh.Rajeev Bedi, authorized representative

                                         of the complainant.

                                      Sarv Sh.Nitin Thatai & Surindere Gera,Advocates,

                                      counsels for the opposite parties.

 ORDER

                                    SMT.NEENA SANDHU, PRESIDENT

                 Sh. Suneet Kumar  has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-

1. To refund the amount of Rs.7,55,000/- alongwith interest @12% p.a. from the date of deposit till realization.
2. To pay Rs.30,000/-as transportation charges for taking the vehicle from Aligarh to Patiala including service, tyre repair, expenditures of two drivers for 3 days
3. To pay Rs.1,50,000/-as charges incurred by him to Rajasthan and U.P.
4. To pay Rs.12,000/-as fitness certificate incurred by him on the vehicle
5. To pay Rs.17,580/- as road tax, surcharge and penalty incurred by him on the vehicle at Dholpur
6. To pay Rs.42,000/-as charges for taking the vehicle from Patiala/Punjab to Dholpur/Rajasthan and thereafter taking the vehicle from Dholpur Rajasthan to Patiala Punjab and also for obtaining fitness certificate
7. To pay Rs.2000/-per day as business loss from the date of delivery of truck till realization
8. To pay Rs.200/- per day as parking charges of the vehicle
9. To pay Rs.1,00,000/- as compensation on account of mental agony and physical harassment suffered by him
10. To pay Rs.21,000/- as counsel fee
11. and  to grand any other relief which this Forum may deed fit.
12. To pay Rs.20,000/- towards trial expenses,

2.                In brief, the case of the complainant is that on 7.11.2014, he purchased second hand truck make Ashok Leyland 3116 bearing registration No.RJ-11-GA-5627 vide agreement No.1570268 from OP No.2 , for a total consideration amount of Rs.7,55,000/-, for earning his livelihood. It is stated that the delivery of the truck was given from Aligarh, in the state of Uttar Pardesh on 1.12.2014 and the same was taken to Patiala after releasing the same from the yard of the O.Ps. It is averred that , at the time of purchase of the truck, it was assured by the OPs that the ownership of the said truck was in their name and there was no charge, encumbrance etc. upon the truck. It was also assured that there was no dispute ,litigation or legal hurdle regarding the truck. No Objection Certificate was also issued by OP No.2 on 8.12.2014, with regard to get transfer the registration of the above said vehicle in his name, after getting removed the hypothecation of the O.Ps. It is averred that as  the truck was registered at Dholpur in Rajasthan, he approached R.T.O. office Dholpur and after paying tax of the vehicle, obtained fitness certificate. It is stated that at the time of getting the transfer of registration from the state of Rajasthan to Patiala in the state of Punjab, it came to his notice that ownership of the Truck was in the name of the O.Ps. rather the same was in the name of some other person and the original owner of the truck has lodged a complaint before D.T.O.& R.T.O of Dholpur (Rajasthan) against  Mahindra & Mahindra Financial Services Ltd. for stopping the process of issuance of N .O.C. and the officials of R.T.O. office at Dholpur flatly refused him to issue any N.O.C. in this regard. He wrote so man y letter to the higher officers of the O.Ps company requesting to solve the issue, but of no avail. It is averred that the OPs including Branch Manager Aligarh and Regional Manager Delhi of the O.Ps. company were not only in the knowledge that they were not the owner of the above said truck but also knew about the dispute over the truck and also about the complaint filed by the earlier owner and with the O.Ps. They with malafide intention, concealed these facts and misappropriated his amount. Had the O.Ps. disclosed these facts to him, he will not have purchased the truck and deposited the amount of Rs.7,55,000/-. Not only this, he also spent an amount of Rs.9,00,000/- on whole of the process. In the absence of necessary documents, he is unable to ply the truck on road. It is averred that he many times approached to R.T.O.Dholpur(Rajasthan) for obtaining N.O.C.,  but who informed that as per legal point of view, the same can be first transferred in the name of the O.Ps. and only thereafter the same can be transferred in his name but the O.Ps and N.O.C. can be issued. He narrated the whole facts to the O.Ps and requested to do the needful but they instead of helping him started demanding another 5% vat amounting to Rs.35,000/-illegally.It is averred that the original owner of the truck, in his letter dated 15.11.2014 to R.T.O.Dholpur, Rajasthan has categorically written that finance company has looted his vehicle and he has lodged a complaint with Aligarh Police and till date no recovery of the truck is effected and requested that no N.O.C. or transfer certificate be issued.He got sent a legal notice dated 11.2.2015 but they failed to give any response. Ultimately on 17.4.2015, he sent an e-mail regarding the matter to Zonal Manager & Regional Manager of the company, whey they provided form No.36 alaongwith documents Notarized affidavit of the company official at Aligarh, and application addressing to R.T.O. Dholpur, Rajasthan for transfer of the vehicle in the name of the O.Ps company. It is averred that the OPs, in order to get the vehicle transferred, have taken all the original documents from him, for which they failed.He also sent so many e-mails but of no avail.It is averred that the O.Ps. sold the disputed vehicle to him with malafide intention as they was disputed between the O.Ps. and the original owner. Thus there is deficiency in service on the part of the O.Ps.Due to this act of the O.Ps. he has been suffering from mental agony and physical harassment.

3.                On being put to notice, OPs appeared and filed the written version, taking preliminary objections interalia that the complaint is not maintainable as no cause of action has arisen in favour of the complainant; that the complainant is not a consumer as the truck in question is purchased for commercial purposes; that the complaint is liable to be dismissed for mis-joinder of party and voluminous evidence is required & cannot be decided in summary jurisdiction. On merits, it is admitted that the complainant purchased a second hand truck i.e. Ashok Leyland 3116, bearing registration No.RJ11GA5627 having engine No.BAH665349, chassis No.MB1KADYCXBAVD0599 from them after making the payment of 7,55,000/- on 7.11.2014.It is further admitted that the delivery of the truck was given from Aligarh, Uttar Pradesh on 1.12.2014. It is submitted that the complainant authorized one Sh.Ashutosh Gautam S/o Sh.Pitamber Dutt R/o B-29/341-C, Purbian Gali, Patiala to take the delivery of the vehicle, in pursuance of which they issued release letter regarding delivery of the vehicle, in favor of the said person . It is stated that the complainant was well aware & informed by them that the vehicle in question was in the name of Aphajal S/o Mohd Rafeek but the same stood hypothecated in their name and since the said borrower failed to repay the installments, therefore, the said truck was repossessed and was sold to the complainant on as is where is basis. However, it is also admitted that OP No.2 issued No Objection Certificate, in respect of the vehicle on 8.12.2014 for getting the transfer of the registration in his favour after removal of hypothecation.It is admitted that the truck was registered at Dholpur at Rajasthan. Further, it is also admitted that the tax of the vehicle was paid by the complainant and also obtained the fitness certificate. It is stated that the original borrower i.e. Aphajal was a chronic defaulter and they as on 5.12.2014 has to recover an amount of Rs.3,70,548/- with further interest @18% per annum from 1.9.2014 till its realization as per Arbitral Award, passed by the Sole Arbitrator on 5.12.2014. It is denied that any fact qua the ongoing dispute between them and the original borrower of the vehicle in question was concealed from the complainant. They issued the requisite documents, which were required under the law for getting removed the hypothecation and issuance of a new registration certificate in favour of the complainant. It is stated that they have done whatever could have been best done in getting the vehicle transferred in the name of the complainant and still are ready to get the vehicle transferred in their name so that the same can be further transferred in the name of the complainant.Moreover, as per the agreement with the original  borrower, the OPs are within their rights to re-possess and further sell the vehicle of defaulting borrower to anybody else to recover its amounts due, under the agreement. It is also admitted that form No.36,Form No.28 and other necessary documents were provided to the complainant to get the vehicle transferred in his name but still, he was unable to get the same done. There is no deficiency of service on their part. The OPs after denying all other allegations made in the complaint, have prayed for the dismissal of the complaint.

4.                On being called to do so, the ld. the complainant tendered in evidence, Ex.CA his sworn affidavit alongwith documents Exs.C1 to C47 and closed the evidence.

                   On the contrary, the ld. counsel for the  O.Ps. tendered in evidence Ex.OPA sworn affidavit of Sh.Anurag Sharma, authorized representative of Mahindra & Mahindra alongwith documents Exs.OP1 to OP10 and closed the evidence.

5.                We have heard the ld.  authorized representative of the complainant, the ld. counsel for the O.Ps., gone through the written arguments filed by the parties and have also gone through the record of the case, carefully.

6.                 The learned counsel for the Ops has argued that the vehicle was under hire purchase agreement, that it was repossessed by the O.Ps., because Aphajal, who had taken the loan from the O.Ps. and was the registered owner of the vehicle, was defaulter in paying installments and therefore, after its repossession, the vehicle sold on as is where is basis. They were claimed to be competent to sell the same. This contention is disputed by authorized represnetaive for the complainant if it was a case of hire purchase agreement. It may be mentioned that in a hire purchase agreement, the vehicle is in the name of the financer, he lets it out to the hirer who agrees to pay installments and when the full amount is repaid, the vehicle is then transferred by the financer in favour of hirer, who becomes its owner. No such hire purchase agreement has been produced by the O.Ps.  to prove their contention.When we go through the written version filed by the O.Ps.  No.1 to 3, it is mentioned in para No.9 that it was a loan cum hypothecation agreement (and not hire purchase agreement). In para No.10, the O.Ps. mentioned that the financed vehicle was repossessed by them. It was, therefore, the case of a simple loan being advanced to Aphajal, with which he purchased the vehicle and the Registration Certificate was issued in his name. Ex.C2, is the letter issued by the O.Ps.  in which name of the borrower of loan is mentioned as Aphajal. He is not mentioned as hirer purchaser. When we go through Ex.C3, it becomes clear that Aphajal was the registered owner of this vehicle and not the O.Ps. It is not disputed that in the certificate of registration Aphajal is still recorded as the owner of the vehicle. The contention of the O.Ps.  that they were owner of the vehicle or it was with Aphajal under the hire purchase agreement is, therefore, totally wrong.

7.                As regards, the contention that they had a right to repossess the vehicle when loanee failed to repay the installments of the loan, it is a dispute between Aphajal and the O.Ps.  which has been settled through arbitration award. copy of which is Ex.OP-8. Even if, the O.Ps.  have repossessed the vehicle, that does not make them its owner. In order to become its owner they have to follow the provisions of law which are enshrined in Section 50 of the Motor Vehicles Act (herein after referred to as the Act) and Rule 55 of the Central Motor Vehicles Rules (hereinafter referred to as the rules. It may be mentioned that in the present case, the said rules and provision of law have not been followed and therefore, the O.Ps. have not become the owner of this vehicle as yet.

8.                It is not disputed that the O.Ps. No.1 to 3 sold the said vehicle and the complainant purchased the same on as is where is basis. There is an undertaking given by the complainant in the shape of affidavit, Ex.OP-5, to get the vehicle transferred in his favour and that it shall be his sole responsibility. The learned counsel for the O.Ps. argued that in view of this undertaking they have no liability to give any document to the complainant for this purchase and they cannot be held liable if the vehicle is not transferred in his favour. When we go through Section 50 of the Act, it becomes clear that where the ownership of the any motor vehicle is transferred, the transferor shall within 45 days of the transfer forward to the registering authority a No Objection Certificate obtained Under Section 48 of the Act, the receipt obtained under Sub Section (2) of Section 48 or the postal acknowledgement sending the application by registered post to the registering authority. In that case as per Section 50 (1) (b) the transferee i.e. the O.Ps. shall within 30 days of the transfer, report to the registering authority within whose jurisdiction the O.P. has residence or place of business where the vehicle is normally kept.        

9.                It is not disputed that both the parties have complied with these formalities, but the main problem arose as to who would be the transferor after repossessing the vehicle. The O.Ps. were required to get the vehicle first transferred in their name by submitting these documents and only thereafter this vehicle could be transferred by them in favour of the complainant. If the complainant, agreed to get the vehicle transferred in his favour and claimed its sole responsibility it would be with respect to the second part of the above said transaction and not the first part under which the vehicle was required to be got transferred by the O.Ps. in their own name. The O.Ps. therefore, cannot take shelter under this affidavit Ex.OP-5 to refuse to get the vehicle transferred in their own favour before transferring the same in favour of the complainant.

10.              The Section 50 of the Act and 55 of the Rules are statutory requirements, which are to be performed by the concerned person(s) to get the vehicle transferred in his/their favour. These statutory requirements cannot be over ridden by an agreement between the parties. The statutory requirements referred to above therefore, cannot be changed simply by submitting an affidavit, copy of which is Ex.OP-5. It was necessary for the O.Ps. to first get the vehicle transferred in their name and only thereafter submit the No Objection Certificate to the registering authority on the basis of which the complainant was required to get the vehicle transferred it in his own name. The RTO/DTO, therefore, rightly refused to transfer the vehicle on the asking of the O.Ps. No.1 to 3, who were not the owner of the said vehicle till then.

11.              Section 48 of the Act provides that the owner of the vehicle when applying for assignment of a new registration mark or where the transfer of the motor vehicle is to be effected in any State other than the state of its registration or the transferor the said vehicle when reporting the transfer of such vehicle under sub Section (1) of Section 50 shall make an application in such form as is prescribed under the rules. In view of this provision the transferor as mentioned in Section 50 refers to the owner of the vehicle, who is to issue the NOC. Anybody who is not recorded as the registered owner of the vehicle may not be competent to transfer the same to the third party.

12.               It is, therefore, necessary for the O.Ps. No.1 to 3 to get the vehicle transferred in their own name and thereafter report the matter to the registering authority for transferring the same in favour of the complainant.

13.               It is admitted by the O.Ps. No.1 to 3 in para No.4 of the written version that the road tax of the vehicle amounting to Rs.17,500/- was paid by the complainant and he had also obtained the Fitness Certificate by spending Rs.12,000/-. Admittedly the vehicle was handed over to him by the O.Ps. under the misguided notion that they are its owner competent to transfer the same in favour of the complainant. The O.Ps. No. 1 to 3 are thus liable to refund the said amount of Rs. 17,500/- + Rs.12,000/- = Rs.29,580/- to the complainant along with interest.

14.               The vehicle was sold on as is where is basis, it was at Aligarh (U.P.) when the complainant took its possession, he brought the vehicle back to Patiala and obviously must have spent a reasonable amount in going to the said place and bringing the vehicle to Patiala. Thereafter, the complainant made rounds of the office of RTO Dholpur and DTO Patiala for getting the vehicle transferred in his favour. He had also sent a number of emails to the O.Ps. in this respect as is mentioned in para No.11 of the complaint. It was done under the hope that the vehicle would be transferred in his name. He had paid the amount of Rs. 7,55,000/- in purchasing the vehicle but could not get it transferred in his name which would obviously give mental tension to the complainant. Since the vehicle was not transferred in his name therefore, he could not get the insurance policy issued for this vehicle. In the absence of insurance policy, the complainant could not drive the vehicle on road, because if in that process the vehicle was damaged, he was not likely to get any compensation for the loss or damage to the vehicle. The conduct of the complainant in not using the vehicle is most reasonable and natural. His contention that he had not been plying the vehicle therefore, cannot be disbelieved. 15.                  The complainant has claimed a sum of Rs. 1,50,000/- as compensation on account of his visits to Rajasthan and U.P. He has also prayed that Rs. 200/- per day be allowed as parking charges for the vehicle and Rs.2000/- per day as business loss, Rs.30,000/- be awarded as transportation charges and Rs. 1,00,000/- towards mental and physical harassment. We are, however, of the opinion that the complainant should get Rs.75,000/- towards compensation for mental and physical harassment and financial loss.

16.              In view of the aforesaid discussion, we allow the complaint and direct O.Ps no.1to3,  in the following manner:

1. The  OPs shall get the vehicle transferred in their own name within period of 30 days from the date of receipt of copy of this order. If the vehicle is not got transferred by the OPs in their own name within the said period of 30 days , they would refund the amount of Rs.7,55,000/- received by them from the complainant, within next 15 days after the expiry of the period of   30 days referred to above. It shall be refunded along with interest @7% per annum from the date of receipt of amount i.e. 7.11.2014 till the payment  is made.
2.  To refund Rs.29,580/- to the complainant alongwith interest @7% per annum from the date of its payment till the amount is refunded.
3. To pay Rs.75,000/-as compensation for causing mental agony, physical harassment & financial loss to the complainant.
4. To pay Rs.20,000/- as litigation cost.

               The Ops no.1to3 are further directed to comply with the  above referred directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which they shall pay interest @9% per annum on the entire amount minus litigation cost. Certified copies of the order be sent to the parties free of cost under the rules. Thereafter file be indexed and consigned to the Record Room.

DATED:29.3.2017       

                                                                   NEENA SANDHU

                                                                       PRESIDENT

                                                                   NEELAM GUPTA

                                                                         MEMBER