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Judgment
This first appeal has been filed by the appellant M/s. Marion Biotech Pvt. Ltd. against the order dated 13.03.2018 of the State Consumer Disputes Redressal Commission, Delhi (in short 'the State Commission') passed in Complaint No.127 of 2011.
Brief facts of the case are that complainant company/appellant purchased vehicle Audi Q 7.3 from opposite party No.2/respondent No.1 on 03.11.2008 for a consideration of Rs.57,54,120/-. Opposite party No.3/respondent No.2 is manufacturer of the car. Opposite party No.4 was the insurer however, opposite party No.4 has not been made a party in the appeal. The said vehicle started having troubles from 3.9.2010. Vide email dated 4.9.2010 and 6.9.2010, it was informed to the complainant by opposite party No.2 that water entered through air filter and sucked by engine and asked for permission to investigate. Complainant got the car repaired and spent Rs.20,09,981/-. Vide email dated 23.9.2010, opposite party No.4 (Insurance Company) rejected the insurance claim. Hence the complaint.
The complainant then preferred a consumer complaint No.127 of 2011 against the manufacturer of car as well as dealer from whom the vehicle was purchased and also against the Insurance Company. Complaint was filed for grant of the following relief:-
S.No.
Particulars
Amount
a.
Amount paid towards the value of the car from opposite parties 1 to 3
Rs.57,54,120/-
b.
Repair cost for the car from opposite parties 1 to 4
Rs.18,96,155/-
c.
Compensation for harassment and agony faced by the complainant on account of stalling of the car without any good reason and on account of having been sold off a car having a manufacturing defect and not suitable for Indian conditions from opposite parties No.1 to 3
Rs.10,00,000/-
d.
Harassment and agony caused to the complainant due to the failure of the opposite party No.4 to conduct a proper survey and there wrongful rejection of the claim of the complainant company without having reached any conclusive findings.
Rs.3,00,000/-
During the pendency of the complaint case, the Insurance Company paid Rs.18,50,000/- and matter was settled with the Insurance Company. The State Commission finally dismissed the complaint by observing the following:
"5. Coming to the case in hand, admittedly the complainant has received an amount of Rs.18,50,000/- from the insurance. The said amount clearly pertains to the expenditure incurred by the insurer on repairs of the vehicle. After having received the said amount, the complainant cannot be allowed to claim the same amount from the manufacturer. Perusal of the complaint and the written arguments filed by the complainant shows that the complainant categorically stated that all the OPs in the present case were jointly and severally liable to pay the amount claimed. The relevant portion appears in para 11 of the written arguments dated 27.01.2016. Clearly the complainant cannot have the benefit of both the worlds. For these reasons, the complaint is disposed of as compromised. File be sent to records."
Hence the present appeal.
Heard the learned counsel for the appellant at the admission stage.
Learned counsel stated that the complaint could have been dismissed only against the Insurance Company. However, the complaint should have proceeded against the manufacturer and the dealer as manufacturing defect was alleged in the car by the complainant. The claim against the manufacturer was for refund of the full price of the car Rs.57,54,120/- . The State Commission has not decided this claim in the complaint. Hence, the appeal may be accepted and the matter be remanded to the State Commission for deciding the claim against the manufacturer and the dealer as there was no settlement or compromise with these two opposite parties.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the appellant and examined the record. The complaint was filed to direct the opposite parties to pay jointly and severally the amount mentioned in the prayer clause. A perusal of the prayer clause clearly shows that the first prayer is in respect of refund of the price of the car and the second prayer is for payment for repair cost from all the opposite parties. First of all, the prayer No.1 is not in respect of the opposite party No.4, Insurance Company. Hence, there can be no question of joint and sever liability of all the opposite parties in respect of prayer No.1. It is also seen that both these prayers are exclusive to each other. If prayer No.1 is satisfied, prayer No.2 cannot be granted and if prayer No.2 is satisfied, prayer No.1 cannot be granted. Hence the prayers are not inclusive to each other and therefore, cannot be granted together. In fact the complaint suffers from defect of mis-joinder of parties as explained in the aforesaid that the prayers being exclusive to each other and if one prayer is satisfied, the second cannot be granted. Accordingly, if prayer No.2 has been granted, obviously prayer No.1 cannot be granted.
Based on the above discussion, I do not find any force in the present appeal as the order passed by the State Commission is based on the correct appreciation of facts and the law. Accordingly, FA No.1029 of 2018 is dismissed at the admission stage.