(Delivered on 13/12/2016)

Per Mr. S.B. Sawarkar, Hon’ble Member.

1.      The District Forum, Akola passed an order in consumer complaint No. 221/2013 dated 13/08/2014 granting the complaint  partly and directing   the O.P.(short for Opposite party) to provide the required papers  with Registration Certificate (R.C. Book) to complainant  and also  provide  Rs. 5000/- as compensation  for   mental and physical harassment and cost of Rs. 2000/- to him and  the order to be complied with   in 45 days from the date of order & in case of failure to pay  penalty of  Rs. 100/- per day  to the complainant.  

2.      Aggrieved against the order, the O.P.  filed  the appeal & hence, is referred as appellant. Advocate  Mr. Dahat appeared on its behalf. One Shri Rajeshwar Patil,  brother and  authorized  representative  of the  complainant appeared  on its behalf  is  referred as respondent.

3.      The appellant  submitted that  the complainant purchased  the  pre owned  Mahindra Maximo Four vehicle  on 21/04/2012 for Rs. 135000/- for which  a receipt  was given to him and that he signed sale acceptance letter and letter of indemnity, by accepting the condition that the vehicle would be taken on  “As is where is” basis  and  the appellant  shall have  no responsibility to provide  any papers  for  its registration.  The appellant  is a financing company which had  taken the vehicle  in possession for failure of  payment of loan  and had  sold it to  respondent to recover the balance loan.  Hence,  it was not  a service provider to the respondent who purchased  the vehicle. Hence, there is  no customer and  service provider relationship . Also  the respondent  knew  that  it is a repossessed vehicle  and  it was  made known  to him that  the appellant  does not provide any warranty  or guarantee  of the vehicle  and the  respondent  shall be  responsible to settle the legal issues of  transfer of ownership  at his risk.

          However, the  learned Forum admitted  the complaint  with exorbitant claim  without jurisdiction. 

          The appellant further submitted that  the indemnity  letter  and the sale acceptance letter  were   given by the respondent . But  he has now denied  that he   signed them.  However, the learned Forum erred in believing  the disputed  facts & decided  the complaint  and allowed it. The learned Forum without appreciating  the submissions of appellant  passed  the order as above which being erroneous  needs to be set aside by allowing the appeal.

4.      On the other hand, the representative of the respondent  submitted that  the respondent  had  purchased  the pre owned vehicle  from the appellant for his  livelihood   but as the  appellant   did not provide the R.C. Book and required papers  he could not use the vehicle  for his purpose. He therefore filed the complaint  against the appellant  to direct appellant  to provide him the required  papers  for the registration  with  a compensation  of Rs.  1000/- per day for loss of  earning  amounting to  Rs. 6,00,000/-.  He filed the receipt  of the purchase and filed  the complaint  to the police.

          The learned Forum therefore passed the correct order by appreciating the evidence of the  both the parties. Hence, the order needs to be confirmed.

5.      We considered the contentions of both the parties and perused the evidence. The learned Forum observed  that  the letter of  indemnity  and  sale acceptance letter have all conditions  one sided benefiting  the  appellant. Hence, they cannot be enforced. Also  the sale acceptance letter says that  the respondent  shall get the registration at his own cost and  the  appellant  would not be responsible to provide him  the R.C. Book and registration. However,  the appellant  could  provide  the copies of documents. Also the respondent has purchased the vehicle from the appellant and hence, he is a consumer of the appellant. It is responsibility of the  appellant to provide the papers.

6.      It is thus not disputed that  the respondent  had purchased a motor vehicle from the appellant - financer who had seized  that vehicle  from its registered owner due to default committed by the registered owner in payment  the financed amount as per hire purchase agreement.  It is also not disputed that the appellant issued receipt dated 21/04/2012 to the respondent about sale of that vehicle to him. The representative of the appellant and the respondent had signed the said receipt, of which Xerox copy  is produced.

7.      It is alleged by the appellant that  the  respondent  had also signed  sale acceptance letter dated 21/04/2012 and letter of indemnity dated 21/04/2012 and thereby admitted  the  terms & conditions  mentioned in both the letter.  The respondent had denied  that he had signed  those two documents . According to him the signatures appearing on both documents  are forged. The representative of the respondent during the course of argument  brought to our notice that  the admitted signature of the respondent appearing on the sale receipt dated 21/04/2012 is in  cursive writing  whereas the disputed signatures appearing on the alleged sale acceptance letter and letter of indemnity  are in small letters and therefore by neked eyes the same  difference in the signatures can be found.  We therefore compared  the aforesaid  admitted signature on the sale receipt with  the disputed signatures appearing on  both the aforesaid disputed letters. We find substance in the aforesaid submission of the representative of the respondent that the admitted signature  differs from the disputed signatures. The appellant though relied on  the sale acceptance letter and  letter of indemnity , it  has   not  taken  steps for referring  sale acceptance letter and letter of indemnity to the handwriting expert for his opinion about the disputed and admitted signatures. Therefore we find that both the sale acceptance letter  and letter of indemnity are the false and forged documents and prepared after thought to support the case of  the appellant.  The Forum has therefore rightly not given any weight to the said letter of acceptance and letter of indemnity relied on by appellant.  

8.      The  another material  aspect of  the present case is that in alleged   sale acceptance letter dated 21/04/2012 in condition No. 4 it is stated that   physical delivery of the vehicle  will be  given to the respondent only after transfer of ownership is effected by him in his name and a copy of registration certificate is given to the appellant  as a proof  and that follow up with RTO for transfer of ownership should be done by the respondent and  any expense, cost etc. towards transfer of the ownership are at the cost of the respondent.  The appellant  in the background of the said condition ought to have explained as to why the vehicle was delivered by it to the respondent  without  producing copy of  registration certificate showing  transfer of vehicle in the name of respondent.  In the absence of  the said explanation  we find that  the  said  sale acceptance letter  has become doubtful particularly when signature appearing on  it does not tally with the admitted signature of the respondent on sale receipt.

9.      It is also seen that Section 51(5) of Motor Vehicle Act 1988 inter alia  provides that  fresh  certification of registration of a motor  vehicle  can be issued by registering authority (RTO) in the name of  the purchaser of the vehicle  from  financer if the financer  satisfies the registering authority that  it has taken possession of the vehicle from the registered owner owing  to the default of  the registered owner under the provisions of the agreement and that  registered owner has refused to deliver the certification of registration or has absconded.   

10.    In our view  when  it is not proved by the appellant that  the respondent  had signed  the sale acceptance letter and letter of indemnity accepting  the responsibility of  getting  transferred  ownership of vehicle in his name  in the record of  registering authority, then  as per aforesaid provisions of section 51(5) of Motor Vehicle Act, 1988 it is the responsibility of the appellant  to  take appropriate steps with the assistance of the respondent  in getting  fresh certificate of registration in his name at his cost.

11.    So far as the question of relationship of service provider and consumer in between both the parties is concerned, we find that the respondent has not purchased the vehicle under public auction. Moreover it is not proved by the appellant that the respondent purchased that vehicle on “As is where is” basis.  The aforesaid provisions of section 51(5) of Motor Vehicles Act, 1988 thus comes in to play in the present case and hence, by way of service, it is the responsibility of the appellant to get issued fresh certificate of registration with the assistance of the respondent at his cost.  Thus the relationship of service provider and consumer exist in between both the parties. The appellant has thus rendered deficient service to the respondent by not providing the said service to the respondent.  Hence, the compensation of Rs.5,000/- and cost of Rs.2,000/- saddled by the Forum on the appellant is just and proper.

12.    However, we find that the penalty of Rs. 100/- imposed under clause No. 4 of the impugned order is excessive and not just and proper, considering the cost of the vehicle in question. We find that a lumsum compensation of Rs.25,000/- needs to be awarded instead of the penalty imposed by the Forum.

13.    Moreover, the Forum has not put a condition on the respondent for   bearing all such expenses for getting fresh certificate of registration in his name. Therefore, the impugned order to that effect also  needs to be modified.

          Thus the appeal deserves to be partly allowed as under,

ORDER

i.        The appeal is partly allowed.

ii.       The direction given by the Forum under clause No. 2 of the impugned order is modified and substituted to the effect that the original complainant /respondent herein shall move an application to the concerned registering  authority for getting transferred the vehicle in his name. Thereupon appellant /original O.P. shall take necessary steps as per provisions of section 51(5) of the Motor Vehicle Act, 1988 with the assistance of the respondent for getting fresh certificate of registration of motor vehicle in name of complainant /respondent  at his own cost.

iii.      The direction given in clause No. 4 of the impugned order is modified and substituted  to the effect that instead of paying penalty at the rate of Rs.100/- per day, the  appellant /O.P. shall pay compensation of                Rs.25,000/- to the original  complainant /respondent for the loss sustained by him.

iv.      The direction given by the Forum in clause Nos. 3 of the impugned order  about  payment of compensation of Rs.5,000/- for physical and mental harassment and cost of Rs.2000/- is maintained.  

v.       Parties to bear their own cost in appeal.

vi.      Copy of the order be provided to both the parties, free of cost.