Tamil Nadu

South Chennai

54/2012

R.Varalakshmi - Complainant(s)

Versus

Hotel Taj Vivanta Connemara - Opp.Party(s)

M/s.N.Maheswaraiah

05 Jan 2017

ORDER

                                                                        Date of Filing :   22.02.2012

                                                                        Date of Order :   05.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            

C.C.NO. 54/2012

THURSDAY THIS  5^th DAY OF JANUARY 2017

Mr. R. Varalakshmi,

W/o. Ramalingam,

No.67-A, New No.48, 7^th Avenue,

Ashok Nagar,

Chennai 600 083.                                        .. Complainant.

 

                        ..Vs..

1. The General Manager,

Hotel Taj Vivanta Connemara,

Binny Road,

Chennai 600 002.

 

2. The Manager,

Hotel Taj Vivanta Connemara,

Binny Road,

Chennai 600 002.                                          ..opposite parties.

 

Counsel for the Complainant               : M/s. T.K.RAjasekaran & another

Counsel for the opposite parties 1 & 2 : M/s.R.Subramanian & others.

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties   under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.50,000/- for the damages due to deficiency of service and also to pay a sum of Rs.1,00,000/- as compensation for mental agony and also Rs.5,000/- as cost of the complaint.

 

1. The averment of the complaint are brief as follows:

         On seeing the advertisement of the opposite party regarding the Jewellary exhibition, the complainant went to the opposite party hotel on 13.6.2011 at 7.30 p.m. to view the above said exhibition in her Maruti
Suzuki Grand Vitara car bearing registration No.TN 02 AF 0003.    The opposite party Hotel Wallet car parking facility is provided and the customers of the hotel cannot park their car by self driving hence the complainant handed over the keys of the car to the employees of the opposite party hotel.   After visiting the exhibition, when she came to take her car, the security manager and the 1^st opposite party informed the complainant that her car parked in the Hotel was damaged by the driver of Ambulance force vehicle bearing No.TN 18 E 6013.  

2.     The above said Ambulance Force vehicle bearing No.TN 18 E 6013 was running exclusive by the opposite party hotel for the Michelin Tyres Company guest staying at the opposite party hotel.  The 1^st opposite party apologized for the damage caused to the complainant vehicle due to the negligence of their staff and promised to repair the damages of the complainant’s vehicle on the opposite party hotel cost and to that effect.   The opposite party hotel given an undertaking letter taking responsibility for the above said accident on 17.6.2011 and provided alternate vehicle to the complainant, subsequently the opposite party-1, refused to pay the cost for the repair of the vehicle stating that the Hotel management refused to pay for the damages of the complainant’s vehicle. 

3.     Then the complainant gave complaint to the traffic police and the Sub Inspector of Police, F4 Thousand Lights Police Station registered FIR bearing No.1290/2011 on 25.6.2011 against the driver of the opposite party Ambulance Force vehicle bearing No.TN 18 E 6013.  Therefore, the opposite party staff had parked the complainant’s vehicle carelessly in the car parking area and the driver of the opposite party Ambulance Force vehicle bearing NO.TN18 E 6013 caused accident due to rash and negligent driving, causing loss to the complainant. 

4.     The damage to the above said complainant’s vehicle was caused due to the employees of the opposite party’s Hotel and hence the opposite parties are vicariously liable to the loss suffered by the complainant.  The act of the employees of the opposite party amounts to deficiency of service and she was put into  untold mental agony and they are liable to pay compensation for sufferings caused to the complainant.   The complainant had sent legal notice dated 17.8.2011 to the opposite party stating the above facts and the opposite party had sent reply dated 26.8.2011 with false allegation to the complainant’s counsel.  Hence the complaint.

5. Written Version of  opposite parties are in briefly as follows:

        The complaint is not maintainable at all and the same has to be dismissed in liminie.   The complainant herein is not a consumer as defined U/s 2 (1) (d) of the  C.P. Act as no services have been provided to her and furthers no fee was collected for parking her vehicle inside the Hotel premises.   Moreover vehicles are parked at owner’s risk.    The complainant has not approached this court with clean hands and is guilty of suppressing the facts. 

6.      It is wrong to allege that customers of the hotel cannot park their car by self driving.     That it is not binding on any guests that he / she should hand over the keys to the valet driver.   The guests are at will to park their cars on their own  at designated parking slots of the hotel.  The opposite party submits that if the guest wishes to take the service of the valet driver, it is purely his / her discretion.   Further, there is a very clear notice board displaced at the entrance to the hotel which says “Parking at Owner’s Risk”.   The opposite parties submit that the complainant had handed over the car keys to one of the valet driver’s and the car was parked very close to the entrance gate in the designated car parking slot.  

7.     At the outset, the opposite parties state that the hotel does not own any ambulance and hence the question of running the ambulance bearing No.TN. 18E 6013 by the hotel does not arise.   Being in hospitality industry the opposite parties went to the extent of giving the complainant a free drop to her residence.   The opposite parties state that they are not given any undertaking letter taking responsibility for above said accident.   The opposite parties submit that the employees of the opposite party were not involved in any manner for the alleged loss suffered by the complainant leave alone the alleged vicarious liability on the part of the complainant.   It is totally complementary.   Therefore no deficiency in service can be alleged or attributed on the part of the opposite parties and the compliant is liable to be dismissed.

8.       In order to prove the averments of the complaint, the complainant has filed proof affidavit along with for evidence and documents Ex.A1 to Ex.A6 marked.  Proof affidavit of opposite parties filed and Ex.B1 & Ex.B2 marked on the side of the opposite parties.

9.   At this juncture, the point for the consideration before this

      Forum is:  

 

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite parties as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

10. Point No.1

          As per the admitted case that the complainant went to the opposite party’s Hotel in her Maruti Suzuki Grand Vitara Car bearing registration No. TN 02 AF 0003 to attend the Jewellery Exhibition which was held in the opposite party’s Hotel campus and parked the said vehicle in the opposite party’s hotel Wallet car parking and handed over the keys of the car to the employee of the opposite party’s hotel.  Similarly, it is an admitted fact that after visiting the exhibition when the complainant came to take her car, the security manager and the 1^st opposite party informed the complainant that her car parked in the hotel was damaged by the driver of Ambulance Force vehicle bearing No.TN 18E 6013 and in turn the 1^st opposite party apologized for the damage caused to the complainant’s vehicle.

11.    At this juncture the only allegation made by the complainant is that the 1^st opposite party has refused to pay the cost of the repair of the vehicle, though the occurrence would have been taken place only due to the negligence of the opposite parties.   On the other hand, the opposite party would contend that the hotel does not own any ambulance and hence the question of running the ambulance bearing No.TN 18E 6013 by the hotel does not arise.    In fact, that in her hurry to go to the exhibition, the complainant did not even collect the car key tag from the security and the complainant has not at all paid any cost for a car parking, and it is totally complimentary.   Further, they would submit that the guests are at will to park their cars on their own at designated parking slots of the hotel and it is not binding on any guest that she should hand over the keys to the valet driver.    In fact, no undertaking letter given by the opposite party as alleged by the complainant and hence there is no deficiency of service on the part of the opposite parties.

12.    At this point of time the duty cost upon the complainant to prove the allegation made in the complaint against the opposite parties by means of acceptable evidence.  First of all, on going through the evidence it is narrated that on seeing Ex.A1 advertisement, the complainant had attended the Jewellery exhibition which was held in the opposite party’s hotel on 13.6.2011 and at 7.30 p.m. and parked the car bearing registration No.TN 02 AF 0003 in the opposite party’s hotel Wallet car parking facility is provided and she handed over the key of the car of the employee of the opposite party hotel.  After visiting from the exhibition  when she came to take car,  the security manager and the opposite party was informed that her car was damaged by the driver of Ambulance Force vehicle  bearing No.TN-18 E 6013 which was running exclusive by the opposite party hotel for the Michelin Tyres Company and therefore the  1^st opposite party apologized for the damage caused vehicle due to the negligence of their staff and promised to repair the damages of the complainant vehicle on the opposite party’s hotel cost and for which Ex.A3 letter given by the opposite party is marked and also the opposite party’s hotel management has provided their car for four days from 14.6.2011 to 17.6.2011 for the usage of the complainant.  

13.    It is further seen from the evidence, that thereafter the complainant gave  a complaint to the traffic police, F4 Thousand Lights Police station registered in crime No.1290/2011 on 25.6.2011 against the driver of the opposite party Ambulance Force Vehicle bearing No.TN 18 E 6013 and the FIR is marked as Ex.A2.  Ex.A4 is the invoice for the repair cost of the vehicle and Ex.A5 is the photographs showing the damage of the said vehicle.   Further it is stated by the complainant that the opposite party has failed to comply the promise given by them.   Hence the complainant had issued a legal notice Ex.A6 to the opposite parties and in turn the opposite party had sent reply dated 26.8.2011 with false allegation and not come forward to comply the demands.  

14.    At the outset, on perusal of the evidence of the opposite party with due to care and caution, it is narrated that there is very clear notice board displayed that at the entrance to the hotel which says “Parking at Owner’s Risk” and the car was parked very close to the entrance gate in the designated car parking slot.   Further stated that the alleged damage was caused by the Michelin Tyre Company Ambulance, they have no control over the act of the driver of the Ambulance.   Further it is learnt that the FIR has been registered only against the driver of the Michelin Tyre Company and the alleged Ambulance Michelin Tyre company bearing No.TN 18E 6013 and therefore it is a matter between the complainant ant the Michelin Tyre Company only.    The opposite parties have nothing to do with the same and therefore the non-joinder of the insurance company also fatal to the complainant’s case.  Moreover, as no consideration charged for extending the car facility to the guest and it is totally complementary, the complainant is not at all a consumer as defined u/s. 2 (1) (d) of the C.P. Act and hence there is no deficiency of service committed by the opposite parties.

15.    At this juncture, on careful perusal of the rival submission put forth on either side, it is crystal clear that the complainant car bearing No.TN 02 AF 0003 was damaged by the Ambulance Force vehicle bearing No.TN 18 E 6013 on 13.6.2011, when the car was parked in the car parking slot of the opposite party’s hotel.  It is further seen that the Ex.A2 FIR was registered the driver of the Ambulance Force vehicle bearing registration No.TN 18 E 0613 for rashness and negligence of driving of the vehicle belongs to the Michelin Tyre Company.  From the above receipt it is clearly admitted by the complainant that the alleged vehicle TN 18 E 0613 belongs to the Michelin Tyre Company. 

16.      In such circumstances it is noticed from the version and the evidence of the opposite parties that the opposite parties have no way connected with the Michelin Tyre Company and therefore nothing to do with the act of the driver of the said vehicle.   While being so, it is alleged by the complainant that the Ambulance Force vehicle bearing No.TN 18 E 0613 was running exclusive by the opposite party hotel for the Michelin Tyres Company guest staying at the opposite party’s hotel.   It is the duty of the complainant to prove the same, while the opposite party denied, but no relevant document to show that the opposite parties are responsible for the Michelin Tyres Company and thereby such allegation has not been proved by the complainant. 

17.    The next allegation stated by the complainant that the opposite party had given an undertaking letter dated  17.6.2011 taking responsibility for the above said accident and the same is marked as Ex.A3.  At the outset on careful perusal of Ex.A3 it is seen the receipt as follows:

“13.6.2011 அன்று இரவு ஆக்சிடென்ட் ஆனதால், நாங்கள் பொறுப்பு ஏற்று, இப்பவும் மேற்படி      ட்டலில் இருந்து என்னுடைய உபயோகித்திற்காக 14.6.2011 to  15.6.2011 and 16.6.2011  17.6.2011 ஆகிய 4 நாட்களுக்கு எங்கள் வண்டியை கொடுத்துவிட்டு இன்று 17.6.2011 இரவு 8.00 மணிக்கு நல்லவிதமாக எங்கள் வண்டி (car No. TN09 BJ 1833)   எங்கள் டிரைவர் திரு.எஸ்.கணேஷ்  அவர்கள் மூலம் திருப்பி அழைத்திருக்கிறோம்.”  

Therefore Ex.A3 is no way useful to the case of the complainant that this relevant to prove that the opposite parties has taken responsibility for the damages caused to the complainant vehicle.  

18.    At this point of time, though there is no dispute that the complainant’s vehicle got damaged on 13.6.2011 while it was parking slot of the opposite party hotel but Ex.A3 is  not sufficient to establish that the opposite party is held responsible as alleged in the complaint, since, it is well known fact that the damage was caused by Ambulance Michelin Tyre Company which is no way connected with the opposite party.  Moreover, the employees of the opposite parties are not involved in any manner for the alleged loss suffered by the complainant.  Not only that Ex.A2 FIR has been registered only against the driver of the Ambulance Force Vehicle bearing No. TN 18 E 0613.  In such circumstances the non impleading of the said Michelin Tyres Company its fatal to the complainant case and thereby this complaint has lost its merits as rightly pointed out by the learned counsel for the opposite parties.

19.       In the light of above facts and circumstances and observations made above the complainant has not proved any deficiency of service on the part of the opposite parties by means of relevant and consistent evidence.  Hence this forum, can easily come to the conclusion without any hesitation that there is no deficiency of service on the part of the opposite parties.   Thus point No.1 is answered accordingly.  

20.   Point No.2

          As per the view concluded in point No.1, the complainant is not entitled for any relief as prayed for in the complaint.  Thus the point No.2 is answered accordingly.

In the result, the complaint is dismissed.  No cost.

          Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th  day  of  January 2017.

 

MEMBER-I                                                                        PRESIDENT.

Complainant’s side documents:

Ex.A1-         -       - Copy of ZAK Jewels advertisement.

Ex.A2- 25.6.2011  - Copy of First information report.

Ex.A3- 17.6.2011  - Copy of Undertaking letter by the opposite party.

Ex.A4-         -       - Copy of Invoice.

Ex.A5-         -       - Photographs.

Ex.A6- 17.8.2011  - Copy of Legal notice sent by complainant.

 

Opposite parties’ side document: -

Ex.B1- 26.8.2011  - Copy of reply notice sent by the opposite party to the

                              complainant.

 

Ex.B2-         -       - Copy of Ack. card.

 

 

MEMBER-I                                                                  PRESIDENT.