PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This is OP’s appeal under Section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 7.9.2011 passed by the learned District Consumer Disputes Redressal Forum-II UT, Chandigarh (hereinafter referred to as the District Forum). The appeal has been filed by Sukhvir Singh who was OP No.2 before the learned District Forum, whereby the complaint was allowed against OPs No.1 & 2 in the following terms :-

“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.”

2.                           In nutshell, the complainant/respondent No.1 purchased a second-hand Car from OP No.2/appellant through OP-1 (respondent No.2) for Rs.2,78,000/-. OP No.1 assured him that there would be no problem of documentations i.e. NOC etc. for transfer of the vehicle in his name.  The complainant paid Rs.2,68,000/- 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.     It was alleged that, the complainant only received the photocopy of the R.C. of the vehicle, which too stood in the name of OP-3 from whom OP No.2 had purchased the car and OP-2 had not got the car transferred in his own name, therefore, the same could not be transferred in the name of the complainant. It was further alleged that OP-1 made him sign an affidavit Ann.C-6 but had not taken any steps to provide NOC of the vehicle to him, due to which the car has still not been transferred in his name and he 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.  Even the insurance of the car, which stood in the name of OP-3 had since expired and could not be transferred in the name of the complainant.  Despite many requests to OP-1 regarding the NOC and other documents of the car in question, the complainant was not provided the NOC and he was not in a position to legally ply the vehicle on the road as his own vehicle.  Ultimately the complainant got served a legal notice on OP No.1 & 2 but to no effect. Thus this complaint, alleging deficiency on the part of the OPs.

3.                           OP-1 (respondent No.2) in its written reply submitted that the complainant had not paid any consideration to it and hence he was not a consumer as per Section 2(d)(i) of the C.P. Act.  It was stated that OP No.1 had no concern with the deal between the complainant and OPs No.2 & 3. Moreover, the car was purchased in 2007 by the complainant, and the case was filed on 25.1.2010, thus the complaint was time barred. It was denied that OP No.1 ever acted as an agent between the complainant and OP-2 for purchase of a second-hand car neither it had given any assurance to the complainant of any kind.  OP-1 was not the owner of the vehicle and had not received any money against it.  It was pleaded that the allegation of the complainant that he was not aware of the ownership of the vehicle was false and fabricated as he had himself placed on record copy of the R.C. showing that OP-3 is the registered owner of the vehicle.  According to OP-1, the complainant had connived with OPs No.2 & 3 to implicate OP No.1 and thus has filed the present collusive complaint. Other allegations of the complaint were denied, and a prayer for dismissal of the same was made. 

4.                           After appearing personally at the initial stage, OP-2/ appellant did not come present on 29.7.2010 therefore, he was proceeded against exparte. On the other hand, despite due service none appeared on behalf of OP-3, hence it was also proceeded exparte vide order dated 26.2.2010.

5.                           Parties led evidence in support of their case. 

6.                           After hearing the ld. Counsel for the complainant and OP No.1 and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order

7.                           Feeling aggrieved, the instant appeal has been filed by the appellant/OP No.2.

8.                           We have heard arguments of the learned Counsel for the appellant/OP No.2 on the point as to whether the appeal should be admitted for regular hearing or not.  

9.                            The contention of the learned Counsel for the appellant is that in fact they have obtained the NOC from Chandigarh for its transfer to Yamuna Nagar but the complainant was not agreeing to pay the amount of Rs.10,000/- as balance and filed the present complaint. It is alleged that the said NOC was handed over by OP No.2/appellant to BEE EMM Carbazar/OP NO.1/respondent No.2 and there was therefore no deficiency in service on its part. The said NOC was produced by OP No.1 before the learned District Forum for delivery to the complainant on 1.4.2010 but he refused to accept the same, which shows that the NOC was handed over to OP No.1 and there was no deficiency on the part of appellant/OP No.2. This contention however, does not carry any merit.

10.                       There is no dispute about it that the appellant/OP No.2 had sold the car to the complainant/respondent No.1  for Rs.2,78,000/- through OP No.1. It was admitted that he received a sum of Rs.2,68,000/-  and gave possession of the car to the complainant.  It was the duty of the appellant/OP No.2 to obtain the NOC for transfer of the car in favour of the complainant. Section 50 (1) of the Motor Vehicles Act, 1988 reads as follows:-

“50.  Transfer of ownership-(1)          Where the ownership of any motor vehicle registered under this Chapter is transferred,--

(a) the transferor shall,--

(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and

(ii) in the case of a vehicle registered outside the State, within forty- five days of the transfer, forward to the registering authority referred to in sub- clause (i)--

(A) the no objection certificate obtained under section 48; or

(B) in a case where no such certificate has been obtained,--

(I) the receipt obtained under sub- section (2) of section 48; or

(II) the postal acknowledgement received by the transferor if he has sent an application in this behalf by registered post acknowledgement due to the registering authority referred to in section 48,

together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;

xxx                 xxx                 xxx”

There is no evidence produced by the appellant if he had applied for NOC within the above mentioned period.  He claims to have obtained the NOC but has not mentioned on which date the NOC was issued to him. After obtaining the NOC it was to be delivered to the complainant/ respondent No.1. Admittedly the same was not handed over by the appellant/OP No.2 to the complainant, but according to him it was handed over to BEE EMM Car Bazar/OP No.1. Since the car was sold by the appellant through OP No.1, it (OP No.1) was therefore, the agent of the appellant and the delivery of NOC even if, it is presumed to have been delivered to OP No.1, cannot discharge the appellant of the obligation under the Act.

11.                       The record of the case however, shows that the NOC was never applied for or obtained by the appellant nor it was ever tendered to the complainant. It is  true that on 1.4.2010 the statement was made by OP No.1 that  he had brought the NOC on that date and was willing to hand over the same to the complainant on payment of Rs.10,000/-, which was outstanding against him. The NOC or its copy was not placed on file nor was this fact mentioned in the reply filed thereafter by the OP. It is also not clear as to on which date NOC was obtained and from where. OP No.1 contested the complaint but did not produce any evidence as to from where he obtained the NOC and on which date. There is no evidence to suggest if any notice was ever issued to the complainant to collect his NOC after paying the balance amount of Rs.10,000/-.  The complainant in para No.5 of the complaint mentioned the efforts made by him to contact the OPs for obtaining the NOC and the treatment, which he got in return. The appellant/OP No.2 did not contest these assertions before the learned District Forum, he did not file any reply  and was proceeded against ex parte, which shows that he had no defence to make against the assertions made by the complainant.  The complaint was contested by OP No.1/BEE Emm Carbazar who just denied the contents of para No.5 alleging that he had nothing to do with sale and purchase of the vehicle because the same was within the complainant and OP No.2.  There is no assertion ever made by any of the OPs that they were in possession of the NOC or had ever asked the complainant to obtain the same from them. It therefore, shows that this ground has been subsequently coined by the appellant.

12.                       The appellant along with the memorandum of appeal has submitted Annexure A-1 to allege that it is the NOC. A mention about it has been made in para 2 of the memorandum of appeal as follows:-

A copy of the  said NOC which had been retained by the appellant before handing the original to the respondent No.2 is appended herewith as Annexure A-1  for the ready reference of this Hon’ble Commission.

Though this document cannot be admitted in evidence because it is beyond pleadings and is not per se admissible yet. for arguments sake, if it is considered, it will further disprove the case of the complainant.  This document was issued on 25.5.2010 and therefore, could not have been tendered before the District Forum on 1.4.2010 by OP No.1. In fact it is not a No Objection Certificate but a report to the effect that the previous NOC issued was not utilized for transfer of the vehicle to the Registering Authority Rupnagar.  Even alongwith the appeal no NOC or copy thereof was attached.

13.                       It is a case, which depicts callousness on the part of the appellant/OP No.2 who had sold the car on 16.4.2007, pocketed the amount of Rs.2,68,000/- and thereafter did not make any efforts to get the NOC, needed for getting the vehicle transferred in favour of the complainant.  In para 5 of the complaint the complainant has mentioned various difficulties and harassment suffered by him due to this act of the appellant.  According to him he used to be stopped by the policemen on duty, since the original RC was not delivered to him the police was not willing to recognize the photocopy of the R.C. The insurance was also in favour of the previous owner and when it expired, he made requests to OP No.3 for getting his vehicle insured further. The mobile number of OP No.1 generally remained switched off most of the time and the complainant had to make personal visits to his office to enquire about the NOC but many a times he used to be reluctant to meet him. He therefore, could not ply the car on the road properly and to its optimum usage. He had to hire taxis on various occasions to take his ailing parents to hospitals and his family members alongwith children to attend marriage functions etc. The owner of the car could not enjoy its benefits even after spending a handsome amount for purchasing a car.  The complainant then served a notice on the OPs and ultimately filed the present complaint on 14.1.2010. For three years he had been suffering mental and physical harassment due to the in-action on the part of the OPs. The OPs however did not deliver the NOC to him and did not even show having procured any such NOC from the concerned quarter.

14.                       Since it was a continuing cause of action, the complaint was not barred by time.

15.                       In view of the above discussion we are of the opinion that the contentions of the appellant are far from true, knowing that he has no case to defend, he absented from the proceedings before the learned District Forum after attending on 26.2.2010, 1.4 2010 and 14.6. 2010, he was ultimately proceeded against ex parte and did not file any reply or evidence before the learned District Forum. The plea being taken by him, are beyond pleading therefore, cannot be considered and otherwise also these are far from truth.

16.                       In view of the above discussion, we are of the opinion that there is no merit in this appeal to admit it for regular hearing and accordingly it is dismissed in limine.

                    Copies of this order be sent to the parties free of charge.