SC affirms complaint should not be returned for misjoinder of parties

The Supreme Court while setting aside the order of National Commission in the matter of Brahmaputra Biochem Private Limited Versus New India Assurance Company & Anr said, “If the National Consumer Disputes Redressal Commission (NCDRC) is of the opinion that the Surveyor was an unnecessary party or the pleadings are contradictory, it should have struck down the said party. The striking of surveyor from the array of parties would not make the complaint disjoined, as it was duty of the NCDRC to strike of an unnecessary party.”

Dr Prem Lata, Legal Head VOICE

Facts leading to appeal before the SC were that an order was passed by the National Consumer Disputes Redressal Commission on 27.09.2021 by which complaint was returned unadjudicated for the reason as said that surveyor was an unnecessary party in Insurance claim matter. Liberty was given to the claimant/appellant to file fresh complaint within 30 days. While granting liberty, it was directed to make the insurance company alone the sole opposite party for seeking redressal.

Observation by the NCDRC

The NCDRC returned the complaint with the Observations

“We agree that a complaint ought not to be defeated by reason of misjoinder of parties alone. In the present case however we find that the contents and articulation of the complaint is such that the insurance co. and its surveyor & loss assessor have been inextricably conjoined together. The material distinction that the complainant co. is a ‘consumer’ of the insurance co. alone, and not of its surveyor & loss assessor also, has been completely lost. The difference between the performance of service by the insurance co. and the role and responsibility of its surveyor & loss assessor has not been maintained. In the wake of such confounding overlappings, a mechanical deletion of the opposite party no. 2 surveyor & loss assessor from the array of the parties would make the complaint disjointed and askew, as may occasion to cause embarrassment to its adjudication on merit.”

From the above observation, it appears that the National Commission finds that complainant is not a consumer against surveyor & loss assessor because it is not complainant taking services from surveyor. He is an agent and service provider to the Insurance Company.

Findings of SC

SC bench comprising Justice Hemant Gupta and Justice V Ramasubramanian observed that the approach of NC is erroneous and said that if there was misjoinder of parties, the unnecessary parties should be deleted, instead of returning the complaint. The complaint cannot be returned unadjudicated with liberty to file fresh complaint as the issue of limitation will also arise. Once the period of limitation has expired, the appellant/complainant cannot file the second complaint.

Further, the surveyor was not impleaded to claim compensation but as a proper party in view of the allegations levelled against it. Surveyor was in fact the necessary party for the reasons that facts about claim were known to him only as assessor. As part of principles of natural justice, if there are allegations against the surveyor and the loss assessor, an opportunity should have been given to such person to rebut the allegations. It was also revealed by the advocate of complainant that the notices were issued to the surveyor on the last known address but the notice could not be served as the firm had shifted its office.

It is open to the appellant to serve the surveyor by substituted service in a newspaper and thereafter, the NCDRC could proceed and decide the matter on merits Consequently, SC set aside the order passed by the NCDRC dated 27.09.2021 and remit the matter for fresh decision in accordance with law.

Law laid down in earlier decided case on similar issue

A case of non-joinder of party decided by SC on the same lines in year 2004 also wherein SC did not agree with National Commission for dismissing the complaint for not making a doctor a party in medical negligence case against a hospital.

The legal question in that case was as to whether non-impleading the treating doctor as party could result in dismissal of the original petition for non-joinder of necessary party. Supreme Court in the above matter held that “An error of non-joinder of necessary to the party cannot result in dismissal of the original petition for non-joinder of party. The National Commission shall, in the disposal of any complaints or any proceedings before it, have the power of a civil court and can direct the parties to disclose the name and other particulars of treating doctor if not known to the complainant. So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC no suit shall fail because of mis-joinder or non-joinder of parties. Even if after the direction given by the Commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties, it cannot result in dismissal of the original petition as a whole.”

Law laid down in the above case was

• An error of non-joinder of necessary to the party cannot result in dismissal of the original petition for non-joinder of party.
• The National Commission shall, in the disposal of any complaints or any proceedings before it, have the power of a civil court and can direct the parties to disclose the name and other particulars of treating doctor if not known to the complainant.
• So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC is concerned, no suit shall fail because of mis-joinder or non-joinder of parties. Even if the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties, it cannot result in dismissal of the original petition as a whole.
• Since the burden is on the hospital to prove not guilty, they can discharge the same by producing the treating doctor of the patient in defence to substantiate their allegation that there was no negligence.
• If the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities.

Hence, we find that the Supreme court in both the situations whether in case of  non-joinder or misjoinder holds that Commissions must adjudicate the matter on merits and has freedom of choice to add or delete the unessential party from the array of parties but cannot refuse justice to parties.