BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
FA.423/2012 against C.C .No.187/2010, Dist. Forum-II,Vijayawada,Krishna Dist.
Between:
1.Naga Raju, Hindu, 27 years,
Contractor of Car Parking Area,
NTR Complex, Besent Road,
Vijayawada -2, Krishna District.
Correct address being
Naga Raju, S/o.Narayan Rao,
Aged about 27 years, Occ: Unemployee,
R/o.New Rajiv Nagar,
Flat No.1808, Payakapuram,
Vijayawada. …Appellant/
Opp.party no.1
And
1.Murala Seetharamayya, S/o.Rajeswara Rao,
Indian, aged about 37 years, Occ:Business,
R/o.168-17-36, Pushpa Leela Nagar,
Tangellamudi, Eluru – 534 005,
West Godavari Dist. … Respondent/
Complainant
2. The Commissioner,
Vijayawada Municipal Corporation,
Vijayawada , Krishna Dist.
3. The Branch Manager,
The New India Assurance Co.Ltd.,
Branch Office,
1st Floor, L Prasad Mansion,
Powerpet, Eluru,
West Godavari District.
4. The Inspector of Police,
Governorpet, Vijayawada,
Krishna District.
5. The Branch Manager,
Sundaram Finance Ltd.,
Hanuman Junction Branch,
Hanuman Junction,
Krishna District.
(Respondent Nos.4 & 5 are not
necessary parties to the proceedings.) … Respondents/
Opp.parties
2 to 5
Counsel for the Appellant : M/s. V.Gowrisankar Rao
Counsel for the Respondents : M/s. K.Sarvabhowma Rao-R1.
R2-served.
M/s. A.Jayanthi-R3.
FA.642/2013 against C.C .No.187/2010, Dist. Forum-II,Vijayawada,Krishna Dist.
Between:
The Commissioner,
Vijayawada Municipal Corporation,
Vijayawada, Krishna Dist. Appellant/
Opp.party no.2
And
1.Murala Seetharamayya, S/o.Rajeswara Rao,
aged about 37 years, Occ:Business,
R/o.D.No.16B-17-36, Pushpa Leela Nagar,
Tangellamudi, Eluru – 534 005,
West Godavari Dist. … Respondent/
Complainant
2. I.Naga Raju,
Aged about 37 years,
Occ:Contractor of Car Parking Area,
NTR Complex, Besent Road,
Vijayawada -2, Krishna District.
3. The Branch Manager,
The New India Assurance Co.Ltd.,
Branch Office,
1st Floor, L Prasad Mansion,
Powerpet, Eluru,
West Godavari District.
4. The Inspector of Police,
Governorpet, Vijaywada,
Krishna District.
5. The Branch Manager,
Sundaram Finance Ltd.,
Hanuman Junction Branch,
Krishna District. Respondents/
Opp.parties
1,3,4 & 5.
Counsel for the Appellant : M/s. G.Jhansi
Counsel for the Respondents : M/s. K.Jyothi Prasad
M/s.V.Gowrisankar Rao-R2
Govt. Pleader-R4
QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HON’BLE INCHARGE PRSIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY, THE TWENTY EIGHTH DAY OF NOVEMBER,
TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
The appellant in F.A.No.423/2012 is the 1st opposite party and the appellant in F.A.No.642/2013 is the 2nd opposite party in C.C.No.187/2010. Both the appeals are directed against one and the same order dt.22.05.2012 of the District Consumer Forum-II, Vijayawada, Krishna Dist.
Since both the appeals arise out of one and the same order, and parties are the same, both the appeals are heard together and are being disposed of by passing this common order. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant is the owner of Maruthi Suzuki Swift Car bearing registration no.AP 37 YY TR 8620. On 16.08.2008 at about 10.30 p.m. he parked his car in the parking place of the first opposite party at NTR Complex, Vijayawada and paid the parking fee of Rs.40/-. Opposite party no.1 took custody of the car and issued receipt bearing no.48583, in favour of the complainant. The complainant returned to the parking place on 19.08.2008 at 16 hours and found his car missing. When the complainant enquired about his car, the opposite party no.1 failed to produce the same stating that the car was missing. On further enquiry, the opposite party no.1 gave evasive replies. Then the complainant lodged a complaint with Governorpet P.S. and it was registered as Crime No.192/2008 under Sec.408 of IPC. The complainant made many efforts to search the car, but he could not trace the same. The opposite party no.1 did not make any efforts to find out the car.
The complainant further stated that he purchased the car and paid life tax in a total sum of Rs. 4,11,900/-. The accessories worth Rs.15,000/- were fixed to the car. The car was purchased under finance and hypothecated to M/s.Sundaram Finance Ltd., Chennai. The car was insured with the opposite party no.3 insurance company. The insurance company is liable to pay the cost of the car, as it was missed due to theft committed while in the custody of opposite party no.1, during the coverage time. Opposite party no.2 i.e. Commissioner of Vijayawada Municipal Corporation is competent authority who issued licence to the Contractor i.e. opposite party no.1 and it is the duty of the opposite party no.2 to protect the interests of the owners of the vehicles, parked in the parking area. The S.I. of Police, Governorpet did not investigate the case properly. Hence, the complainant filed the complaint seeking direction to opposite party no.2 cancel the licence given to opposite party no.1 to run the parking place, to replace the old vehicle with new Maruthi Suzuki Swift LTD., to pay compensation of Rs.5 lakhs, to direct the S.I. of Police, Governorpet P.S., Vijayawada to reinvestigate the crime altering the FIR u/s. 379 IPC along with other concerned sections and to take action against opp.parties 1 and 2, to direct the opposite party no.3 to provide insurance claim facilities if the Maruthi Swift car is not found out on investigation by police and fix liability on all opposite parties 1 to 3 to return/replace the car with a new one.
Resisting the complaint, opposite party no.1 filed his version admitting the parking of the car and denied the liability and further contended that the opposite party no.1 was a successful bidder in an auction for conducting lease of premises i.e. parking area in NTR complex. The opposite party no.1 is entitled to collect the parking fee for the vehicles parked in NTR complex. There was no condition imposed on opposite party no.1 to arrange protection for the vehicle parked in that area. Boards were displayed at several places stating that the parking fee will be collected, only for utilising parking place, but not for providing any protection or security to the properties. The owner of the vehicle has to take all precautions to keep the vehicle in lock and key while parking the vehicle. The fee was paid only for utilising the premises for parking and vehicle was not entrusted to opposite party no.1 for custody or protection. The complainant himself was negligent in leaving the vehicle, without proper care. The vehicle was parked at owner’s risk. If any loss is caused to the complainant, he may claim compensation from insurance company. The opposite party no.1 is not liable to pay any amount.
Opposite party no.2 filed version almost on the same lines of the written version filed by opposite party no.1 and further contended that the opposite parties 1 and 2 are not vested with the duty of providing security. That the vehicle was not in the custody of the opposite party no.1 or opposite party no.2. Payment of parking charges does not confer any right to seek protection or security to the vehicle and the vehicles were parked at owners’ risk and the same was displayed conspicuously at the parking place.
Opposite party no.3 insurance company filed version admitting existence of insurance policy and further contended that the car was not lost or missed while it was in the custody of the complainant/insured. Therefore, this opposite party is not liable to pay the claim. The liability of opposite party no.3 would arise only when the vehicle was stolen from the custody of the insurer or in the premises of the insured. As per IMT No.13 the insurer shall not be liable in respect of the vehicle, while the vehicle was used elsewhere than the premises of the insured. Inspite of addressing number of letters, the complainant did not submit the criminal case record of the vehicle, the original keys of the vehicle and the particulars of the hypothecation agreement. Therefore the claim of the complainant was closed as inadmissible.The opposite party is not liable to pay any amount to the complainant.
Opposite party no.5 filed written version contending that the complainant had availed loan facility of Rs.5,23,760/- repayable in 49 monthly instalments for purchase of Maruthi Suzuki Swift Car and entered into a loan agreement. The vehicle was hypothecated to 5th opposite party. The complainant committed default in payment of instalments. The mere demand to pay lawful money does not amount to harassment.
During the course of enquiry, before the District Forum, the complainant filed his evidence affidavit and got marked Exs.A1 to A11. The opposite parties 1 and 2 filed their affidavits. On behalf of third opposite party, its Manager filed his affidavit. On behalf of oppsosite party no.5, its Deputy Manager(Legal) filed his affidavit and Exs.B1 to B11 were marked.
Based on the evidence adduced and pleadings put forward, the District Forum allowed the complaint, in part, directing the opposite parties 1 and 2 to pay jointly and severally a sum of Rs.3,48,750/- to the complainant with interest thereon @ 9% p.a. from the date of complaint i.e. 12.08.2010 till payment or realisation and to pay a sum of Rs.2000/- towards costs.
Aggrieved by the said order, the opposite party no.1 filed F.A.No.423/2012 and opposite party no.2 filed F.A.No.642/2013 questioning the legality and validity of the impugned order of the District Forum.
Heard both sides and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The admitted facts are:
The first opposite party was successful bidder in the auction for conducting lease of premises i.e. parking area in NTR Complex. Therefore he is entitled to collect the parking fee for the vehicles parked in NTR complex. The complainant purchased Maruthi Suzuki Swift Car by availing loan from 5th opposite party i.e. M/s. Sundaram Finance Ltd., Chennai. The said vehicle was hypothecated to 5th opposite party and was insured with the 3rd opp.party insurance company. The said vehicle was registered vide
registration no. AP 37 YY TR 8620. On 16.08.2008 at about 10.30 p.m. he parked his car in the parking place of the 1st opposite party at NTR Complex, Vijayawada and paid parking fee of Rs.40/- and 1st opposite party took custody of the car and issued receipt bearing no.48583 vide Ex. A1 in favour of the complainant . When the complainant returned to the parking place on 19.08.2008 at about 16 hours, he found his car missing. When the complainant enquired about his car , the opposite party no.1 failed to produce the same stating that the car was missing. Then the complainant lodged a complaint with Governorpet P.S. and it was registered as Crime No.192/2008 under Sec.408 of IPC .
As rightly observed by the District Forum, whenever a vehicle is handed over to a person for specific purpose, the person keeping the vehicle would be a bailee and the person handing over the vehicle would be a bailor, as provided under Sections 151, 152, 160 and 161 of Indian Contract Act. It is the duty of the bailee, to take care of the goods bailed, as if he would take care of own goods. Therefore, it is the duty of the opposite party no.1, to take care of all the vehicles, which are parked in the parking area till they are returned, to the person, who parked the same. He cannot escape from such liability, by saying that he has collected the fee for keeping the vehicle in the parking area and not more than that. In the present case, no doubt, entrustment of the vehicle may not be for three days and he paid for only one day. But the opposite party no.1 has got every right to collect extra parking fees for keeping the vehicle for more than one day.
The District Forum rightly relied on the decision in Hotel Hyatt Regency vs. Athul Virmani in F.A.No.1102/2004 on the file of National Commission decided on 01.08.2008, wherein the complainant visited a hotel paying the amount of Rs.900/-, which includes entrance fee and got his car parked in the parking slot by the representative of the hotel taking key from the complainant herein. After the complainant came out in the night, he found the vehicle missing. The State Commission, New Delhi found the hotel liable to pay the value of the vehicle. On appeal, the National Commission has confirmed the order of the State Commission.
In similar circumstances, the Hon’ble National Commission in Mahesh Enterprises vs. Arun Kumar Gumber and other reported in 2001 (2) CPJ PAGE 1 (NC) observed that “in our opinion in the facts and circumstances of the case , the State Commission was legally right in holding that the facts and circumstances would constitute the bailment and persons responsible for the management of parking was liable to make good loss”.
Though the learned counsel for the appellant/opp.party no.1 contended that the District Forum failed to see that the vehicle was parked at owner’s risk, but the appellant/opposite party no.1 has not adduced any evidence to show that the vehicles are being parked at owners’ risk.
In view of the above discussion, we are of the view that the opposite party no.1, the contractor, who was managing the parking area is liable to make good the loss, as it is his duty to keep the car safe. However, we are not inclined to agree with the finding of the District Forum that the opposite party no.1 was actually conducting the parking area on behalf of the opposite party no.2 Corporation and as such, the Corporation is also vicariously liable. In this case, the opposite party no.1 is not managing the parking area under the supervision or guidance of the opposite party no.2. He was managing the parking area independently as per the terms and conditions of the licence given to him for collecting parking fee. Therefore, it cannot be said that the opposite party no.1 is managing the parking area, on behalf of the opposite party no.2 Corporation. As such, the opposite party no.2 Corporation is not vicariously liable along with opposite party no.1, to make good loss, caused to the complainant. The parking fee was given to the opposite party no.1 on contract and as such the opposite party no.1 alone is responsible for anything happens, regarding the parking of the vehicles in the parking area. There is no privity of contract between he opposite party no.2 Corporation and the complainant. Therefore, for the loss of car of the complainant from the parking area, the opposite party no.2 Corporation is noway responsible or liable. In these circumstances, we hold that the 2nd opposite party Corporation is not vicariously liable to pay the compensation to the complainant along with opposite party no.1.
It is true that the complainant obtained Ex.B1 Insurance Policy from opposite party no.3 Insurance Company and the same was subsisting, when the vehicle was parked in the parking area. The opposite party no.3 insurance company contends that the insurance policy covers only the theft of the vehicle, from the custody of the policy holder or from his premises and not from the custody of a care taker. According to the complainant, the opposite party no.1 was the care taker of the car. Admittedly, the car is not actually committed theft of from the custody of the complainant. It is also not established that the car was removed by someone by committing theft of it from the parking area. Infact, the police registered the case for the offence of criminal breach of trust and not as a case of theft. Under these circumstances, the opposite party no.3 insurance company cannot be held liable, to pay the insurance amount. That apart Exs.B3 to B5 notices issued by the opposite party no.3 to the complainant clearly show that the complainant did not submit the relevant papers and the original keys of the car to the insurer despite notices. Thus, there is no deficiency in service on the part of the opposite party no.3. Therefore, the District Consumer Forum has rightly dismissed the complaint against opposite party no.3.
For the afore said facts and circumstances, we are of the view that the complainant established deficiency in service on the part of the opposite party no.1, who is the appellant in F.A.No.423/2012 and failed to establish deficiency in service on the part of the Commissioner, Vijayawada Municipal Corporation, Vijayawada i.e. opposite party no.2 and the appellant in F.A.No.642/2013. Accordingly, the impugned order of the District Forum is to be modified.
In the result, the appeal in F.A.No.423/2012 is dismissed and confirming the order of the District Forum in so far as it relates to appellant/opp.party no.1 is concerned. The appellant/opposite party no.1 is directed to pay costs of Rs.5000/- to the respondent no.1/complainant. The appellant/opposite party no.1 is directed to comply with the order, within four weeks.
F.A.No.642/2013 is allowed. The impugned order of the District Forum against appellant/opposite party no.2 is hereby set aside. No order as to costs.
INCHARGE PRESIDENT
MEMBER
PM* Dt.28.11.2013
