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M/s. Marion Biotech Pvt. Ltd. v/s Volkswagen Groupsales India Pvt. Ltd. & Others

    Complaint No. 127/2011
    Decided On, 13 March 2018
    At, Delhi State Consumer Disputes Redressal Commission New Delhi
    By, THE HONOURABLE MR. N.P. KAUSHIK
    By, JUDICIAL MEMBER
    For the Appearing Parties: Ankur Singh, Ekta Basin, Akshay Chandra, RohitAggarwal, Advocates.


Judgment Text
1. In brief the case of the complainant is that the vehicle Audi-Q-7.3 was purchased by the complainant from OP-2, the dealer. OP-1 deals in marketing, sales and servicing of Audi vehicles, through its dealers in India. M/s. ICICI Lombard is an insurer.

2. Grievance of the complainant is that the vehicle which was purchased on 03.11.2008, started giving problems from 03.09.2010. Complainant got the vehicle repaired and spent an amount of Rs.20,00,000/-(twenty lakhs only) Insurer repudiated the claim on the grounds that its liability was limited only to replacement of engine oil, oil filter and flushing of engine. Complainant had however, claimed replacement of the vehicle. Complainant filed the present complaint against the manufacturer, dealer and the insurer alleging manufacturing defect in the vehicle.

3. During the pendency of the present proceedings complainant entered into a settlement with the insurer i.e.ICICI Lombard.

4. An amount of Rs.18,50,000/-(eighteen lakhs fifteen thousand only) was paid by OP-4 i.e. the insurer to the complainant. Settlement deed is exhibit CWI/1. Now a question arose whether the claim of the complainant against the manufacturer or the dealer survives. Ld. Counsel for the complainant Sh. Neeraj Kumar Singh sought time for addressing his arguments on the point. Sh. Neeraj Kumar Singh has not appeared in the matter today.

5. I have heard at length the arguments addressed by the counsels for OP-1,2 & 3. Ld. Counsel for OP-2 has heavily relied upon the case of DLF Industries Ltd. v. New India Assurance Co. Ltd. and Ors, 2012 SSC Online NCDRC 612.Paras 12 and 22 of the judgment are relevant in the present context. The same are reproduced below:-

'12. It must be borne in mind that certain harsh realities cannot be glossed over. As a matter of fact, the case of the complainant bristles with flaws. The learned counsel for the complainant did not come to grips with the real problem but touchd the unimportant one. It is unfathomable as to why did the complainant settle the scores with the manufacturer. The record reveals that the complainant wants to have the benefit of both the worlds. On the one hand, counsel for the complainant argued with vehemence that no case against the manufacturer is made out. He contended that at the initial stage their perception was that the tower crane had crashed due to manufacturing defect but since no concrete evidence came out, therefore, they are praying against the insurance company only, and have got no grouse against the manufacturer.

22. All these reports clearly, specifically and unequivocally reveal that there was manufacturing defect. It is surprising to note that out of 300 tower cranes, only the tower cranes in question, crashed and stood completely smashed. It did not work properly from the very start. Several complaints,, vide the above said letter dated 31.07.1005 and 12.08.1995, were lodged. Why did the supplier have the additional security after the expiry of warranty period? What was the need of welding, on the new crane? It is apparent that the complainant is working in cahoots with the manufacturer and absolved him of the liability without waiting for the verdict of this Commission. There is strong evidence against the manufacturer of the tower cranes but the complainant claims no relief against him. The Insurance Company has discharged its duty. As per Col.4, mentioned above, the Insurance Company should not have taken any step after the complainant itself mentioned that it was a manufacturing defect. Yet, it appointed Surveyor, pondered over the matter and then rejected the claim. The ‘but and ben’ stand taken by the complainant does not help him much. On the one hand, it accepted the amount of Rs.9.16 lakhs from the manufacturer, and on the other hand, it wants that the liability of the above said damage should be fastened upon the Insurance Company. It is thus clear that the complainant has been crying from the roof top that it was due to manufacturing defect that the tower crane collapsed. Moreover, the facts of this case, speak for themselves. The life span of such like tower cranes should not be less than 50 years. This tower crane was having defects from the very start, as is apparent from the written statement filed by the complainant. This is an unsavoury volte face, on the complainant’s part.'

5. Coming to the case in hand,admittedly the complainant has received an amount of Rs.18,50,000/- from the insurer. 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 canno

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t 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.
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