IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 24th day of September 2009 CC.61/2006 K.Sreedharan, Priya Nivas, P.O.Eachur, Kannur Dist. Complainant (Rep. by Adv.O.K.Sasindran) 1. General Manager, BSNL, Telecom District, Thavakkara, Kannur. 2. Dvisional Engineer, Telecom, BSNL, Kannur 1. Opposite parties 3. Secretary, Eachur Service co.op.Bank, Eachur. (Rep. by Adv.A.Abdul Azeez) O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay Rs.22, 422/- with cost. The case of the complainant is that he is an account holder and a regular customer of 3rds opposite party. On13.10.2005 at about 12.30 P.M he had gone to the bank with his Maruthi 800 car having No.Kl.13 H.1729 and parked the car in front of the bank in the compound. After completing the transaction, he came out and to his utter dismay noticed that the car was completely disfigured by paint spilled from the top. When he viewed the surrounding, he noticed that on the top of the bank building some workers were working for the construction of Tower for opposite parties 1 and 2 and it was on account of their utter negligence and carelessness the paint was spilled and fell on the car during their work. At the time of parking the car there was no sign board or other indication restricting the parking of the vehicle. Immediately the complainant orally made complaint about the incident to 3rd opposite party and also contacted 2nd opposite party through telephone. When contacted the 2nd opposite party apologized for damage and assured that the BSNL would looked into and give compensation for the damage. So the complainant took the car to popular Vehicles they have estimated Rs.12122/- and gave a quotation. The damage caused to the vehicle is purely on account of the utter negligence and deficiency of service of opposite party. It is the bounden duty of opposite parties to warn customers by restricting the parking of vehicle near such construction. The complainant had sustained Rs.12, 122/- as repair charge, Rs.300/- notice charge and Rs.10,000/- as compensation. This loss was due to the negligent act of opposite party. Hence this complaint. Upon receiving the notice from the Forum opposite parties 1 and 2 appeared and filed version. 3rd opposite party also appeared through Adv.A.Abdul Azeez and filed version. The opposite parties1 and 2 contended that the complaint is not a consumer as per the Act. So the complaint is liable to be dismissed. They further contended that the work of construction and painting the tower at Eachur was carried out by a contractor who is solely responsible for the alleged loss or damage if any caused to the complainant and hence he should be a party and hence the complaint is liable to be dismissed. Opposite parties 1 and 2 are unaware of the incident till11.11.05. On 11.11.05, the 2nd opposite party told the complainant the above fact that a contractor is constructing the tower. The complainant was also told the name and designation of officer of Indian Mobile Communication Wing, but no steps was taken by the complainant. So the opposite parties 1 and 2 have no liability. Moreover, the damage caused to the vehicle of the complainant is not due to the negligence of deficiency of opposite parties 1 and 2. The contractor of BSNL mobile wing has provided 24 hours security at the site and if the paint was spilled accidentally over the complainant’s car, he should have reported the matter to the Security or to any responsible person. So there is no deficiency on the part of opposite parties 1 and 2 and hence the complaint is liable to be dismissed. 3rd opposite party also filed version and contended that they had leased 30 sq.meter on the roof top of then bank building to BSNL for the construction of 27 sq.meter tower and one room having the area of approximately 150 sq.ft. Accommodating associated equipments as per the agreement dt.16.5.05. As per the agreement, the construction work or the subsequent function is not in any way related to the opposite party. There is sufficient space in the compound to park the vehicle of customer and this opposite party has no reason to warn any customer or to put sign board. The alleged spilling of paint and disfiguration of the car is only due to the negligence of the workers appointed by BSNL. So the bank is not liable to pay anything to the complainant as the owner of the building. So there is no deficiency or unfair trade practice on the part of 3rd opposite party and hence the complaint is liable to be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency on the part of opposite parties? 3. Whether the complainant is entitled to get any remedy as prayed in the complaint? 4. Relief and cost. The evidence in this case consists of the oral testimony of PW1, PW2,DW1and DW2 and Exts.A1 to A4, C1 and B1 to B3 (2) Issue Nos. 1 & 2 Opposite parties 1 and 2 contended that the complainant is not a consumer of them as per consumer protection act. According to opposite parties 1 and 2 complainant has not purchased or hired any service from them. The complaint is filed for compensation for repainting his car which was occurred due to spilling of paint over the complainant’s car bearing No.KL.13.H.1729 on 13.10.05, while he parked his car in front of 3rd opposite party. According to the complainant the paint was spilled over his car due to the negligence of workers working for the construction of BSNL Mobile tower on roof-top of bank’s building. It is true that the complainant has not purchased or availed any service from the opposite party with respect to the subject matter of the complaint. So it is seen that the complainant is not a consumer with respect to opposite parties 1 and 2. But regarding 3rd opposite party admittedly complainant is a regular customer of 3rd opposite party and Ext.A4 proves that on the date of alleged incident also he has availed the service of 3rd opposite party by paying LIC premium through the bank. So undoubtedly it is clear that the complainant had availed service of 3rd opposite party on 13.10.05 and hence the complainant is a consumer of 3rd opposite party and hence issue No.1 is found in favour of the complainant. The complainant’s further case is that all the opposite parties are liable for the alleged incident and hence all of them are liable to compensate the complainant. But it is found that the complainant is not a consumer of opposite parties 1 and 2 and hence they have no liability to compensate the complainant. The remaining question is whether the 3rd opposite party has any liability co compensate the complainant. It is true that an establishment must take care of its customers who has been using the premises for their transaction and to provide safety measures to a customer who has entered in the premises for availing their service. The DW2 ie.3rd opposite party deposed that “ Bank sâ property 8 cent BWv. AXn 7 cent covering Dv. Compound \pf-fn car park sN¿m-\p-ff ØeT apgp-h³ roofing BWv. So from this it is seen that the 3rd opposite party had taken much care of its customers. The case of the complainant is that he had parked his car in front of the bank. If it is parked inside the compound, which has roofing, the alleged incident would not have occurred. So it cannot be considered that the 3rd opposite party ought to have taken much care about the car parked outside the compound under open air. So we cannot attribute negligence on the part of the 3rd opposite party by saying that they have to take car all its surroundings like a panchayth or Municipality. So in this case from the available evidence on record, it can be seen that there was no negligent or deficiency of service on the part of 3rd opposite party and hence the complainant is not entitled to get any remedy as prayed in the complaint. The complainant is not the consumer of opposite parties 1 and 2 since he has not availed any service from them. Hence issueNo.1 and 2 found against complainant. In the result, the complaint is dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the estimate of repairs issued by Popular vehicles and services A2 &A3.Copy of the lawyer notice and reply notice A4.Copy of the certificate dt.12.7.08 issued by OP 3 Exhibits for the opposite parties B1.Copy of the reply notice dt.6.12.05 B2. Copy of the terms and conditions of purchase order dt.30.9.04 No. Tender- 009/PO/2004/05/21 of General Manager, Kerala telecom circle, Tvm. B3.Letter dt.11.11.05 sent by LIC of India to OP2 and estimate Exhibits for the court C1.Suyrvey report dt.8.7.08 Witness examined for the complainant PW1.Complainant PW2.Pramod.P Witness examined for the opposite parties DW1.P.M.Balakrishynan DW2.K.K.Madusoodhanan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
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