ORDER

SRI.H.R. SRINIVAS, PRESIDENT

1.      This is the complaint filed by the complainant against the Opposite Parties (herein referred to as OPs) under Section 35 of the Consumer Protection Act, 2019 for the deficiency of service  in repudiating the claim of the complainant by OP-1 regarding non-payment of the repair charges of Rs.9,48,681.58 towards the vehicle No.KA-1 MP-6240 met with an accident  and to direct OP-2 to 4 to pay Rs.5,00,000/- as compensation for deficiency in service and Rs.2,00,000/- for causing him mental stress and agony cost and other reliefs as the commission deems fit.

2.      The brief facts of the complaint are: that the complainant is the owner of KA-01 MP-6240 “TATA Area Pure” passenger car insured with OP-1 for the period of 10.02.2019 to 09.02.2020 for the value of Rs.6,82,594/- and as paid Rs.18,634/- being the insurance premium. The complainant is running an Ice Cream franchisee by named “Micheal’s Ice Cream Burger” wanted to set up franchisee in mall of Travancore located near Thiruvananthapuram Airport Kerala. He went to Thiruvananthapuram on 03.09.2019 and booked a room with “Vibrant Stay” 2^nd OP through online OYO rooms i.e. 3^rd party running a chain of hotels, and rooms were booked from 03.09.2020 to 08.09.2020. 

3.      He checked in to the hotel on 03.09.2019 along with his brother in law one Ramachandra Fernandes at about 11.30 pm. At that time, one Althaf introduced himself as care taker of the hotel and requested him to handover the key of the car so that he can park the same and shift the vehicle as and when required to accommodate the guests. The property manager one Prem also requested him to cooperate with said Althaf in handing over the key of the car.  He handed over the key of the car to Althaf. On 04.09.2019 after returning to hotel by finishing his days work, as per the request of Althaf, the key of the car was handed over for parking and for its safety.

4.      It is contended that on 05.09.2019 in the morning, he had several missed call over his mobile from the owner of a LED lights selling store from whom he had a shopping on the earlier day and on enquiring with him, he came to know that his car has met with an accident.  The informer conveyed to the shop owner that they saw a car lying damaged by the side of the public road that AK Kulam, Thiruvanthapuram and while checking the car they found the bill from the shop and hence called the contact number mentioned in the bill to inform the accident. 

5.      The complainant was very shocked to hear that his car met with an accident which was parked with OP-2, 3 and 4. He immediately contacted Prem the manager of the hotel and the said Prem informed the complainant that around 2.30 am the care taker had stolen the vehicle and due to reckless driving he met with an accident, and the care taken abandoned the car and ran away from the place of the accident. Himself and the manager went to the place of the accident and found the car in damaged position by the side of Akkulam road.  Himself and the manager Prem approached Pettah Police Station and lodged a complaint.  They were not taken necessary steps to investigate the matter. On 01.11.2019 he made a complaint to the commissioner of police to conduct the investigation and also made a private complaint to the Addl. CMM Court at Thiruvananthapuram. The said complaint is still pending for investigation.

6.      In the meantime, the crystal Staffing solutions security service Kochi the 4^th OP who employed Althaf and the security providers for 2^nd OP, sent an undated communication admitting that their care taker used the said car and caused the accident due to negligence and expressed its regret.  Due to the said sudden and unforsean incident and not conversant with the native language, called the customer care of OP-1 which is an insurance company narrating the details of the accident and the incident. 

7.      He also lodged a claim of the insurance policy through customer care of OP-1. To his surprise OP-1 by communication dated 09.12.2019 alleged that at the time of lodging the claim through call center of OP-1, complainant himself has stated that he was driving the car at the time of accident but during the investing and the information gathered by OP-1, the vehicle was being driving by the staff of the hotel and hence there is suppression of material facts and the complainant did not cooperate with the investigator and the complainant violated condition No.1 of the policy and further since the complainant was residing in the hotel, there is a contractual relationship between the complainant and hotel owner which the policy do not cover any claim arising out of the contractual liability and called upon the complainant to submit more documents within 7 days failing which they would repudiate the claim. He denied any contract between him and the staff of the hotel and the said vehicle was stolen from the custody and he has not violated the terms of the condition.

8.      On 31.12.2020, OP-1 repudiated the claim on the ground that the reply given by him is unsatisfactory and complainant has changing the version time and again and also regarding the manner of accident, and this willful, misrepresentation of the fact.  It is contended that, he handed over the key of the car to the hotel staff to take care of the car. It is the responsibility of the hotel to take care of the vehicle as per Section 148 to 161 of the Indian Contract Act. There is bailer and bailee relation and hence insurance company is not liable to settle the claim along with the contractual liability. Further denied that there is any contractual liability between him and the hotel and demanded the insurance company to pay the amount. The said vehicle was left with Focus Automobiles Thiruvananthapuram, Kerala who is the authorized service center of TATA motors and they prepared the estimate for Rs.9,48,681/- which exceeds insurance Declared value and hence the same is to be considered as total loss. Further the said service center is charging him Rs.100 per day as parking charges.  The matter was conveyed to OP-1 the insurance company and further informing that there is no misrepresentation of facts. 

9.      The key of the vehicle was handed over to the care taker of the 2^nd OP on the pretext of making effective management of the limited parking facility available at the hotel. Complainant with a bona fide impression that his car would be secured in a safe and secured manner in the parking area of the hotel, and not to cause inconvenience to the guests, handed over the key of the car.  There is gross negligence on the part of OP-2 and 3 which resulted in loss to the complainant both physically, mentally and financially and he has to suffer hardship and misery. 

10.    If at all it is construed that there is Bailor and Bailee contract between him and the 2^nd and 3^rd party, 1^st OP being the insurer of the vehicle primarily liable to indemnify the loss of the said vehicle and cannot repudiate the claim.  In the alternate, it is also prayed by the complainant that OPs are liable to compensate for the defy in service rendered by it in as much as OP-4 being the bailee had the duty to takecare to ensure the return of the car in the same manner as it was when it was handed over to the wallet service offered by the hotel of OP-3. Further OP-4 admitted the fault of its employee and undertook to pay the repair charges of the vehicle. But failed afterwards. In view of this OP-2 3 and 4 are liable to compensate for him for the defy in service and also the value of the vehicle. It is the responsibility of the OP-2 to take care of the vehicle of the guests.  In view of furnishing all the documents to the insurance company to substantiate that the vehicle was stolen by Mr.Althaf and caused the accident, the insurance company is liable to honour the claim.  There was no necessity for the complainant to make a false claim when his car stolen, complaint lodged, and the same was investigated by the insurance company who visited the spot of the accident.

11.    OP-1 has not denied the accident or the damage caused to the vehicle. Hence the repudiation of the claim of the complainant in respect of theft and accident amounts to deficiency in service on the part of OP-1 and also not finalizing the claim and indemnifying the loss amounts to unfair trade practice.  Due to the sufferance by the act of OPs, complainant has been put to severe strain, stress , mental agony and hence prayed the commission to allow the complaint and award compensation as prayed in the complaint.

12.    Upon the service of notice, OP-1, 2 and 3 appeared before the commission and filed their versions whereas OP-4 remained absent and placed exparte. 

13.    In the version filed by the insurance company i.e. OP-1 it is contended that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed against it. The claim of the complainant is not maintainable and totally on a misconceived basis and on erroneous assumptions. It is false, frivolous and filed to make unlawful gain. 

14.    It is contended that the complainant obtained an insurance policy “Digit private car package policy” valid from 10.02.2019 to 09.02.2020. The vehicle met with an accident on 05.09.2019 and the intimation was received to its call center on the said day itself.  While intimating the fact of accident and the claim the complainant informed that while he was searching for room he suddenly  took a u turn and in the mean while a dog came on its way and as it was raining he lost the control and the vehicle met with an accident. Upon receipt of the said information they registered a claim bearing No.201900076591. They appointed a surveyor to investigate and assess the loss and also to ascertain the real cause of the accident and the nature of the loss. The investigator after inspection conducted a survey and suspected the damage do not tally with the cause and nature of the loss mentioned in the complaint and recommended for appointment for an investigator. Based on the same, an investigator was appointed to ascertain the true cause of loss and during the investigations it was found the complainant was not the actual driver whereas the vehicle was in possession of the hotel employee who had taken the vehicle from the possession of the complainant met with an accident.

15.    Surprisingly, the complainant suppressed the material facts. Further it is contended that they sought clarification from the complainant and to know what was the reason for suppressing the actual facts.  The policy of insurance issued is a contractual ability, subject to the exclusion under the policy of insurance.  After obtaining the clarification given by the complainant and on the basis of the evidence collected and on the records, policy terms and conditions it repudiated the claim of the complainant.

16.    The principle of insurance like any other contract, strictly governed by the terms and conditions.  After evaluating the materials and the facts it repudiated the claim, knowingfully well complainant has stated and made a false statement as to the cause of the accident, place of accident and details, and made a willful misrepresentation.  Further as per the terms and conditions any claim arising out of any contractual liability insurance company is not bound to honour the claim.  The complainant handed over the vehicle to the employee of the hotel for temporary purpose and as such there is relationship of Bailer and Bailee between the complainant and OP2 3 and 4 and hence under Section 148 to 161 of the Indian Contract Act the responsibility of returning the vehicle in the good condition lies on OP2 3 and 4.  Hence there is no deficiency on its part and repudiation of claim of the complainant is not a deficiency in service, and hence by denying the allegations made in each and every para of the complainant, prayed the commission to dismiss the same.

17.    In the version filed by OP-2 and3 it is contended that OP-2 and 3 are the most renouned and affirmed name in the hospitality sector in the country.  The present complaint filed by the complainant is on false misleading concocted story by abusing the process of law. The intention of the complainant is to make unlawful gain and to make OP-2 and 3 suffer unlawful loss.  The complaint i not maintainable under the provisions of Consumer Protection Act. Since the matter is still under investigation by the concerned police, this commission lack jurisdiction to decide the complaint.

18.    It is further contended that, the complainant has failed to prove the deficiency in service on their part and also unfair trade practice by them.  The present dispute is beyond the scope of the Consumer Protection Act.  Out of pure greed and nefarious intention the complainant filed this complaint by suppressing material facts.  The averments are very vague, baseless, with mala-fide intention and on misconceived facts. 

19.    It is further contended that the complainant booked a room with OP-2 operated by OP-3 for a period of 6 days.  OP-3 has entered into right to use agreement with OP-2 for a period 2018 to 2020 . OP-4 supplied man power known as care taker “CT” for business of OP2 and 3 in Kerala. OP4 deployed one of their employees at the said property for the day to day work. In case any liability arises due to the defy in service by the said care taker his employees i.e. OP-4 shall solely be liable for the same as there is employee and employer relationship between the caretaker and OP-4.

20.    It is contended that on 03.09.2019 complainant reached OP-2 and 3 hotel and handed over his car key to CT for parking. On 04.09.2019 the complainant returned to hotel and again the care taker requested for the keys of the car due to some parking issues . On 05.09.2019 it came to the knowledge of the complainant that his car has been stolen by the CT which with met an accident. Thereafter the complainant rushed to the accident spot found the car damaged and the CT was missing the same was reported to the nearest PS who started investigation.  It is contended that, the CT was an employee of OP-4 at that time and he was performing his obligations and duties in the said property. Hence the employer OP-4 who deployed the CT in the property would be liable for the act done by its employees. Hence OP-2 and 3 cannot be held liable for any of the alleged misdeeds of the care taker appointed by OP-4 and they cannot be saddled with any liability. 

“As per the Terms of the Agreement entered into between OP-3 and 4 as per Clause 2.2  and 7(e):

“the agreement is on a principal to principal basis between the parties thereto. The service provider shall perform all the services hereunder as an independent service provider and nothing contained therein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master or servant or employer and employee between the parties hereto or any affiliates thereof or to provide either  party with the right, power or authority whether express or implied to create any such duty or obligation on behalf of the other party. The service provider acknowledges that its rendering of the service is solely within its own control subject to the terms and conditions agreed upon and agrees not to hold itself out to be an employee, agent or servant of Opposite party No.3 or affiliated thereof.”

Clause No.7(e):

“Any claim from any statutory  authority or any employee, consultant, representative of the service provider or employee, consultant, representative of a subcontractor of the service provider with respect to the terms of service/employment of the employee, consultant, representative with the service provider or with the subcontractor of the service provider with any matter set out in clause the clause, any at, commission or omission, negligence, misrepresentation, fraud, forgery, dishonesty, misconduct or violation of any of the terms and conditions of this agreement by the indemnifying party or its personnel. Further the indemnifying party shall co-operate with indemnified party in defending any claim/s against indemnified party by any local, state or central authority with respect to any leavers, taxes, duties, fines, and/or penalties etc., due and payable by the indemnifying party, and shall indemnify the indemnified party. Fully and without limit, against the same. The indemnifying party recognizes that the indemnities provided under this agreement shall be in addition to and not in lieu of any other remedy available to indemnified party under this agreement or by law.”.

21.    In view of this, there is no privity of contract between oP2 ,3 and the said CT.  OP-4 has been in constant touch with and with communication with the Complainant. OP.4 by communication, admitted the fault of its employee and was ready to settle the issue by providing a similar vehicle to the complainant.  The complainant was ready to accept the same from OP-4 as per email dated:16.10.2019. It was also informed by the OP-4 that they are looking out for the same model car of the complainant and after deducting the insurance amount they are ready to support the complainant to the maximum extent they can. Later the complainant was not satisfied with the vehicle offered by OP-4 as it was a fraud vehicle from Rajasthan sold to two persons with fake numbers. In view of this OP2 and 3 are not at fault.

22.    Complainant has been adamant and abusing the provision of the CP Act.  Since there is no deficiency  in service on their part, complainant is not entitle for any of the damages or compensation from them. The compensation under the Act can be awarded to a consumer only in respect of loss and injury suffered by the consumer due to negligence of the service provider or any deficiency in service attributable to the such service provider. Denying the allegations made in each and every  para of the complaint prayed the commission to dismiss the complaint.

23.    In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

24.    Our answers to the above points are:-

POINT NO 1: In the Affirmative

POINT NO 2 : Partly in the affirmative

                      For the following.

REASONS

POINT NO 1:

25.    It is not in dispute that the complainant is the owner of car KA 01 MP 6240. The RC of the vehicle is produced. It is also not in dispute as can be gathered by the version and the evidence produced along with documents, that the complainant took the hotel room from 03.09.2020 till 08.09.2020 run by OP-2 and 3 with the help of the care taker. It is also not in dispute that the complainant handed over the key of his vehicle for Wallet Parking through the care taker appointed by Op-4 who inturn entered into an agreement of house keeping and other related activities running the hotel owned by OP-2 managed and run by OP-3.  It is also not in dispute that the from the documents filed that the said vehicle parked by the care taker in the premises of the hotel was stealthily and without the permission of the complainant was taken out by the employee of the caretaker one Althaf and he drove the vehicle without authority and caused the accident. The police report as well as the complaint filed to the CMM Court at Thiruvananthpuram and also the inspection/investigation report by OP-1 also reveals that the accident has taken place and the vehicle got damaged . 

26.    It is not in dispute rather admitted by OP-1 that the vehicle owned by the complainant has been insured with it.  The insurance document clearly shows that the vehicle was insured for ID value of Rs.6,82,594/- wherein OP-1 has collected Rs.4,620/- being the premium for own damages and add on premium of  Rs.4,437/- besides the liability to the 3^rd party premium, in all, it has collected Rs.18,634/- towards the policy issued by OP-1 in respect of the said vehicle.  It is not the case of the OP-1 that the vehicle was not driven by a person who has no license to drive the vehicle. On the other hand, it is the specific case of OP-1 while repudiating the claim that there is a misrepresentation of the fact to the effect that according the complainant himself has informed that he was driving the vehicle at the time of accident. Whereas after their investigation by the investigator, it was found that some person of the hotel was driving the vehicle and caused the accident and there by damaged the vehicle. 

27.    When such being the case, this is not the ground for OP-1 to repudiate the claim of the complainant. If the contention of OP-1 is taken into consideration that the complainant handed over the vehicle to the Wallet parking to the care taker of OP-2 3 and 4 and that there is a existence of bailor and bailee relationship and OP2 3 and 4 are liable to be compensated. We are of the opinion that the contract between the complainant and OP-1 is in respect of the insurance is a “Contractual Liability and Obligation” which OP-1 is bound to honour the terms and conditions of the contract. On the other hand, the act of the care taker of OP-4 which was entrusted by OP-2 and 3 amounts to “Negligence and Tortious Liability” for which they have to pay the damages to the complainant.

28.    Denying the insurance claim by OP-1 amounts to deficiency in service  and also unfair trade practice for having received the premium for own damages and 3^rd party damages and denying for the own damages.  It is immaterial whether the vehicle was driven by the complainant or by any other person who is lawfully permitted to drive such a kind of vehicle. It is to be observed here that the ID value of the vehicle Rs.6,82,594/- which OP-1 is bound to pay the same. 

29.    Under the contract Act Section 151, 152 there is relationship between the complainant and OP-2 3 and 4 and the care taker, of Bailer and Bailee wherein the person who receives the goods is a bailee whereas the person who hands over the goods is a bailor.  The duties and obligations and responsibilities are clearly mentioned in the provisions relating to bailment under the Contract Act.  It is the bounden duty of the bailee to return the goods as it was received by it at the time of taking the possession of the said goods, failing which bailee is liable to compensate for the damages caused to the goods.  It is held very clearly in the decision relied on by the complainant as well as reported in Taj Mahal Hotel Vs United India Insurance Company:-

“A. Consumer Protection- Consumer/Consumer Dispute/Locus Standi – Subrogation/Assignment of Consumer Claims- complaint filed by insurer as a subrogee of consumer – Held , Maintainable- Requirement for the same , clarified.

B. Consumer Protection – Services- Entertainment, Leisure, tourism and sports services- Liability of hotels for theft or loss of vehicles of guests – Prima facie liability rule i.e. wherein innkeeper is presumed to be liable for loss or damage to vehicle of his guest, but can exclude his liability by proving that loss did not occur due to any fault or negligence on his part, as opposed to common law rule/strict liability rule wherein innkeeper is treated as an insurer and made responsible regardless of presence or absence of negligence on his part- Applicability of:”

30.    Further the documents produced marked clearly shows that the care taker i.e OP-4 has in unequivocal terms admitted the misdeed of its employee i.e. Althaf in stealing the car from the parking area to whom the same was entrusted for its safety and also agreed to pay the repairing charges and in the alternate to provide the vehicle of the same model and year of manufacturer and in fact they made a attempt to provide an alternative vehicle of the same model which was registered in the state of Rajasthan which the complainant refused to receive on the ground that the said vehicle is a fraud vehicle run by manipulating the number plate for about 4 years and the same was sold to two persons by fraudulent means.  In view of all these, we are of the opinion there is deficiency in service on the part of OP0-1 in repudiating the claim of the complainant for ID value of the vehicle on flimsy grounds.  Secondly there is defy in service on the part of oP2 3 and 4 in not vigilant in keeping the vehicle in their custody properly and are negligent in allowing the employee of OP-4 Althaf to take away the vehicle who caused the accident. In view of this, we answer POINT NO.1 PARTLY IN THE AFFIRMATIVE against OPs.

POINT No.2:

31.    In view of our answers Point No.1, and as pointed out above OP-1 has insured the vehicle for Rs.6,82,594/- (ID values) which it is bound to pay the same to the complainant along with interest at 12% pa from the date of accident till payment of the entire amount. 

32.    The complainant has produced the  estimation for repair of the vehicle which amounts to Rs.9,48,681/-. Since the complainant is getting the ID value of the vehicle from OP-1, the difference has to be borne out by OP-2 3 and 4  jointly and severally along with interest at 12% per annum on the said amount.  Further the act of OPs in not settling the claim of the complainant well in time made the complainant to suffer physically mentally and financially for which we direct OP-1 to pay Rs.25,000/- as damages, and OP-2, 3 and 4 a sum for Rs.75,000/- as damages . Further all the OPs are directed to pay Rs.10,000/- in proportion towards the litigation expenses to the complainant. In view of this, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. OP No.1 is hereby directed to pay a sum of Rs.6,82,594/- being the ID value of the car to the complainant along with interest at 12% per annum  from the date of accident till payment of the entire amount.
3. Further OP-2, 3 and 4 are jointly and severally hereby directed to pay  difference of amount i.e. after getting deducted the ID value of the vehicle from Rs.9,48,681/- to the complainant along with interest at 12% per annum on the said amount from the date of accident.
4. Further OP-1 to pay Rs.25,000/- towards damages and OP-2 3 and 4 together a sum for Rs.75,000/- as damages to the complainant. Further all the OP 1 to 4 are directed to pay Rs.10,000/- in proportion towards the litigation expenses to the complainant..
5. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 05^th  day of February 2022)

MEMBER                          PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Registration certificate

Ex P2: Copy of the Private car package insurance policy

Ex P3: Copy of Room booking details.

Ex P4: Copy of the FIR

Ex P5: Photograph

Ex P6: CD in respect of the accident to the complainant’s car.

Ex P7: Copy of the complaint to the commissioner of police,

Tiruvanthapuram, Kerala

Ex P8: Copy of the complaint regd. With the Addl. CJM, Tiruvanthapuram

Ex P9: Letter written by Crystal staffing Solutions to me.

Ex P10: Copy of the letter written by insurance company.

Ex P11: Letter written by the complainant to company.

Ex P12: Letter dt: 31.12.2019 addressed to the complainant by insurance company.

Ex P13: Copy of the reply given by the complainant.

Ex P14: Postal acknowledgement

Ex P15: Email Correspondences & estimation.

Ex P16: Certificate u/S 65B.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Firoz Trasgar, Authorized Representative of OP-2& 3

RW-2: Sri B.Shivayya Bableshwar, authorized Signatory of OP-1.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the letter of authority.

Ex R2: Copy of the service agreement between Crystal staffing solutions with OYO.

Ex R3: Copy of the email correspondences.

Ex R4: Copy of the policy schedule along with terms and conditions.

Ex R5: Copy of Final Survey report.

Ex R6: Copy of Investigation report.

Ex R7: Copy of letter dt:09.12.2019.

Ex R8: Cop of letter of complainant dt:19.12.2019

Ex R9: Copy of the repudiation letter of OP-1 dt: 31.12.2019.

Ex R10: CD

Ex R11: Certificate u/S 65B of the Evidence Act.

MEMBER                  PRESIDENT

RAK*