By. Sri. Chandran Alachery, Member:-
The complaint is filed U/s 12 of the Consumer Protection Act, 1986 for an Order directing the opposite parties to pay Rs.1,86,000/- towards rental expenses met by the complainant by hiring taxi vehicle due to the deficiency of service of opposite parties and for a compensation of Rs.50,000/- and Rs.10,000/- as cost of the proceedings.
2. The case of the complainant in brief as follows:- The complainant purchased a new GLS LPG BS IV Hyundai Santro Car from the opposite party No.1 who is a dealer and Opposite party No.2 in the year 2010. She raised the purchase price by way of bank loan of Rs.3,92,000/-. The opposite parties supplied an old car instead of new car which was also in rust conditions. The complainant is an Recurring Deposit collecting Agent in Post office. The car supplied by the opposite parties is defective and an old one and had scratches and sedimentation. The complainant then demanded the opposite parties to replace the car with a new one, but the opposite parties not responded. Then the complainant filed a complaint before this Forum and numbered as CC/248/2010 against the opposite parties. The Forum allowed the complaint and directed the opposite parties to supply a new car to the complainant along with cost and compensation. The opposite parties went in appeal and the appeal is dismissed upholding the Order of this Forum. The complaint in this case is that the complainant hired another vehicle with a daily rent of Rs.500/- for conducting daily work at least three days in a week. So the complainant had to spent Rs.6,000/- per month as hire charges due to the non-supply of new car by the opposite parties. Therefore the complainant filed this complaint for an Order directing the opposite parties to pay Rs.1,86,000/- as rental charges for 31 months and compensation of Rs.50,000/- and Rs.10,000/- as cost of the proceedings.
3. On receipt of the complaint, Notice was sent to both the opposite parties and Notice served to opposite party No.1 on 21.10.2013 and opposite party No.1 is set ex-parte on 24.02.2014 and Acknowledgment card not returned and Notice served to opposite party No.2. The Opposite party No.2 appeared in Forum and filed Version. The opposite party No.2 filed an I.A No.324/2013 for a preliminary hearing on maintainability. The complainant filed counter in I.A No.324/2013 and both sides were heard. On perusing I.A. No.324/2013 and its counter and the complaint and Order in Appeal No. A-448/12 and A-461/2012 the Forum raised the following points for consideration:-
1. Whether the complaint is maintainable in this Forum on the question of
Resjudicate?.
4. Point No.1:- As regards to Point No.1, both sides were heard. On verifying the complaint, the Forum found that the complainant had filed another case before this Forum prior to this case and numbered as CC/248/2010 with the same subject matter and same cause of action and got a favorable Order from this Forum. The Appellate Commission also uphold the Order in C.C. No.248/2010. Here in this case, the complainant did not show any cause of action other than the earlier complaint. The complainant not demanded the hire charges from the opposite parties in the earlier case and the same issue which is already adjudicated by this Forum. The complainant could have claimed it in the earlier case itself. The complainant ought to have asked the same in her earlier complaint. But that is not done. But for the same subject matter and in the same cause of action, the complainant filed this case for getting rental charges from the opposite parties. As per Section 11 of the Code of Civil Procedure 1908, the doctrine of Resjudicate is explained as “NO court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, but has been heard and finally decided by such Court”. Here the complainant filed C.C. No.248/2010 before this Forum arraying the same persons as opposite parties with the same subject matter and same cause of action. The complainant did not claim rental charges in C.C. No.248/2010. The Forum found that to cover up and in order to fill up the lacuna, the complainant filed this complaint against the same parties. In 2013 (3) CPR 741(NC), the Honorable National commission ruled that subsequent complaint for the same cause falls in the purview of resjudicate.
Thus, the Forum found that the complaint is barred by Resjudicate and is not maintainable and therefore the I.A. No.324/2013 is allowed. Hence the complaint is dismissed.
Pronounced in the Open Forum on this the 24th day of February 2014.
