STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
At HYDERABAD
FA 329 of 2014
AGAINST
CC No. 445 of 2011, DISTRICT FORUM II, HYDERABAD
Between :
- Dr. Jayanthika Gyani, W/o Dr. Rajender Gyani
Aged about 59 years, Occ : Medical Practitioner
- Abhishek Gyani, S/o Dr. Rajender Gyani
Aged about 32 years, Occ : Business
Both R/o 4-3-122, Medical Supt. Bungalow,
Crawford Memorial Hospital Campus, Vikarabad,
R.R. District .. Appellant/complainant
And
- M/s. Ohri’s Restaurant Hotels (P) Ltd,
Rep. by its Managing Director,
O/O 5-9-30/16-20,
Opp. Gandhi Medical College, Basheerbagh,
Hyderabad.
- M/s. Ohri’s Restaurant Hotels (P) Ltd, rep. by its Manager
O/O 5-9-30/16-20,
Opp. Gandhi Medical College, Basheerbagh,
Hyderabad .. Respondents/Ops.
Counsel for the Appellants : M/s. S. Prashanth Kumar
Counsel for the Respondents : M/s. M. Papa Reddy
Coram :
Honble Sri Justice B. N. Rao Nalla … President
And
Sri Patil Vithal Rao … Member
Wednesday, the Fourth Day of April
Two Thousand Eighteen
Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )
***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the complainants praying this Commission to set aside the impugned order dated 27/01/2014 made in CC 445 of 2011 on the file of the DISTRICT FORUM -II, Hyderabad.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3). The case of the complainants, in brief, is that the first complainant is the owner of the Car, Registration bearing No. AP 28 AP 8008, Model 2005, Makers Toyota Kirloskar Innova 2.5 V BS III Colour Silver Diesel Car on 03.01.2011 and the second complainant is her son. When the complainants along with their family members went to the hotel of the opposite parties, parked the said Car at the first opposite party hotel vide Valet parking receipt No. 015770 for having dinner. After having their dinner, when they returned to the Valet parking to take back the Car, the staff member of the opposite parties informed that he had already handed over the keys to some other person mistakenly. Immediately, thereafter, at about 11.00 pm, on the complaint of second complainant, the Saifabad Police registered the case in FIR 44/2011 U/s. 379 of IPC. The opposite parties though provided another Car belonging to M/s. Vaishnavi Travels bearing No. AP 10 AE 7308 for five days, thereafter, they kept quiet and when they questioned to send alternate car, for which, they replied that it is the duty of the police to investigate the case. The car was missing along with the following items which were kept in the car. (1) H.P. Lap Top ( Model No. DV 73111 E A ) worth of Rs.57,000/- , (2). Nokia Mobile ( Model No. N8) worth of Rs.25,800/-. (3). Kodak Camera and other ( Model No., Z1015 IS) worth of Rs.20,000/-,(4). Gold Jewellery 65 gms worth of Rs.1,30,000/- and (5) Cash Rs.2,000/-. They got issued legal notice on 14.02.2011 to pay a sum of Rs.2,34,800/- towards the value of the missing articles along with an amount of Rs.8,00,000/- towards value of the car, for which, the opposite parties gave evasive reply. Hence the complaint to direct the opposite parties to pay Rs.8,00,000/- towards value of the Car, to pay a sum of Rs.2,34,800/- towards value of the missing articles, to pay Rs.1,00,000/- towards compensation for mental agony etc and costs.
4). The opposite parties opposed the above complaint by way of written version and contended that as per the procedure of valet parking, the valet parking staff has to necessarily note down the vehicle number on the original as well as on the counterfoil of the valet parking receipt for proper identification of the vehicle and hand over the counterfoil to the customer and they will hand over the vehicle after verification of the vehicle number. They did not hae dinner at their hotel. The receipt bearing No. 015770 does not contain the number of the vehicle and the same is created for the purpose of this case for unlawful gain. On the reverse of the said receipt, it is stated that the vehicle will be parked by the staff subject to the owner’s risk and the restaurant does not take responsibility or liability for theft of the vehicle. The allegation of keeping of the articles in the car is false. The car in question was already seized off by the concerned police. There is no deficiency in service on their part. Hence prayed to dismiss the complaint.
5). During the course of enquiry before the District Forum, in order to prove their case, the complainants filed their evidence affidavit and got marked Ex.A1 to A9. Whereas, the opposite parties filed their evidence affidavit and no documents were filed on their behalf. Heard both sides. Both sides filed their respective written arguments.
6) The District Forum, after considering the material available on record, dismissed the complaint.
7) Aggrieved by the said order, the complainants preferred this appeal before this Commission.
8). Both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments.
09) The points that arise for consideration are,
(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?
(ii) To what relief ?
10). Point No. 1 :
The contention of the appellants/complainants is that the first complainant is the owner of the Car bearing No. AP 28 AP 8008 is supported by Ex.A1 copy of the registration and Ex.A2 receipts of the respondents/opposite parties’ hotel for having dinner, which, corroborating the contention of the appellants that they went to the hotel of the respondents/opposite parties and they had the dinner there. Ex.A4 is the copy of the FIR which shows that the second complainant lodged complaint before the PS at Saifabad complaining that the vehicle was parked at the premises of the respondents/opposite parties’ hotel as per Valet parking receipt N. 015770 vide Ex. A3 with regard to theft of the same. Hence the contentions of the respondents Hotel that the appellants did not have dinner at their hotel and did not park the car in question should have no legs to stand.
11). The District Forum observed that there is no evidence to show whether the appellants/complainants received the insurance claim from the Insurance company or not, he can claim the insured value from the Insurance company and since the non-joinder of Insurance company as proper and necessary party, the complaint is not maintainable and hence dismissed the complaint.
12). Counsel for the appellants/complainants argued that it is settled position of law that the evidence beyond the pleadings is not acceptable as such the case of insurance as dealt by the Lower Forum is liable to be rejected. He relied on the decision of the Delhi State Consumer Disputes Redressal Commission in between Atula Virmani and M/s. Hotel Hayat Regency, reported in 2004 (2) CPJ 392, which was based on the decision of the Hon’ble National Commission in Mahesh Enterprises Vs. Arun Kumar Gumber and others, II (2001) CPJ 1 (NC), wherein, it was held that
“ authorized parking staff is responsible for theft of the car and also held that the facts constitute bailment and the complainant is entitled for compensation. The facts of the present case are almost similar. Hence in our view the OP is liable for deficiency in service”.
13) The respondents’ hotel did not place their own Valet Parking Receipt to prove that Ex.A3 was a created one and it should contain the number of the Car also. The respondents’ Hotel in the counter argued that a perusal of the reverse side of the Valet parking receipt would go to show that the vehicle will be parked by the staff subject to the owners’ risk and the restaurant does not take responsibility or liability for theft of the vehicle. By relying on the said argument, the respondents’ Hotel accepted Ex.A-3. Hence Ex.A3 can be treated as genuine. Suppose if Ex.A2 and Ex.A3 receipts are false and when the appellants/ complainants have lodged police complaint that the vehicle in question was not parked at the valet parking and it was not stolen, it is not known, as to why the respondents’ hotel did not give police complaint against them and placed their evidence before the police to prove that the complaint before the police given by the appellants is false. The respondents’ hotel did not place IN and OUT register of the vehicles. They did not place footages of CCTV cameras, if any, on the relevant date and at the relevant time. Ex.A2 receipts, two in number, show that an amount of Rs.2,210/- was paid towards food items. It is to be considered whether the bill included the charges of parking or free of cost. Ex.A3 valet parking receipt did not show any amount towards parking charges. Generally, parking charges would be included in the bill and other service charges rendered for the custody of the vehicle while the vehicle remains in the custody of the Hotel. It is the duty of the concerned staff to return the vehicle, when the customer hands over the parking receipt and failure of the same, the hotel management cannot escape from their liability for the theft or loss of the vehicle. It appears, the staff of the respondents Hotel permitted the vehicle to be taken out without obtaining the parking receipt from the appellants / complainants.
14). With regard to the amount of compensation, the vehicle was manufactured in the month of September, 2005 and the date of registration was 19.2.2005. The appellants claim an amount of Rs.8,00,000/- towards cost of the Car, but, no evidence was filed in support of their contention. The date of first registration, i.e., 19.02.2005. As per the complaint and the FIR, the vehicle in question was stolen on 24.01.2011, i.e, after six years from the date of purchase. The appellants/complainants did not place any material with regard to the cost of the vehicle in question when they purchased. But, it may be true that the cost of the vehicle in question was Rs.8 lakhs, but, now, it may be fixed at Rs.3,00,000/- at the time of theft relying on the decision of the Hon’ble National Commission, supra. There is no evidence on record to prove that the articles were found missing along with car and hence we cannot compensate for the same. Without evidence on record that the vehicle in question was insured, it cannot be presumed that the appellants may be entitled to the insured amount and consequently dismissal of the complaint as observed by the District Forum.
15). After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Commission is of the view that the respondents’ Hotel is liable to pay an amount of Rs.3,00,000/- along with interest @ 9% pa from the date of theft, i.e.,23.01.2011 till date of payment along with costs of Rs.5,000/- and other claims are liable to be rejected.
16). Point No. 2 :
In the result, the appeal is allowed setting aside the impugned order dated 27.01.2014 made in CC 445 of 2011 on the file of the DISTRICT FORUM -II, Hyderabad and consequently the complaint is allowed in part directing the respondents/opposite parties to pay an amount of Rs.3,00,000/- along with interest @ 9% pa from the date of theft, i.e.,23.01.2011 till date of payment and also to pay costs of Rs.5,000/-to the appellants/opposite parties. The other claims are rejected. Time for compliance four weeks.
PRESIDENT MEMBER Dated : 04.04.2018.
