DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 28^th day of February, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.32/2007

S.Ravisankar,

S/o.Sundararajan,

1, Srinagar, Koundampalayam,

Coimbatore – 40. - Complainant

(By Adv.Unny Thomas)

Vs

1. Krishnadas,

S/o.Thankappan,

Valmuttikulam,

Thekkegramam Post,

Chittur, Palakkad.

2. The Senior Commercial Manager,

Palakkad Divisional Office,

Southern Railway,

Olavakkode Post,

Palakkad. - Opposite party

(By Adv.T.R.Rajagopalan)

O R D E R

By Smt.Preetha.G.Nair, Member

Complainant is a businessman dealing in photocopiers. On 31.03.2005 the complainant's employee M.R.Jayakumar parked complainant's motorcycle bearing Regn. No.TN.38/K 7159 of Hero Honda Splendor at the vehicle parking stand of the Town Railway Station, Palakkad. The 1^st opposite party is the agent/contractor of the 2^nd opposite party for operating and maintaining the vehicle parking stand of the Town Railway Station. M.R.Jayakumar paid Rs.2/- being the parking fee for the vehicle to the 1^st opposite party. Thereafter on 1.4.05 Jayakumar came to the vehicle parking stand to take back the motorcycle entrusted with the opposite parties. Then the motorcycle was not to be seen in the stand. The 1^st opposite party

told him that the above said vehicle along with some others have been stolen from

the stand last night. Jayakumar filed a complaint to the Sub Inspector, Town North Police Station but nothing happened. The complainant states that the opposite parties are jointly and severally liable to ensure safety of vehicles entrusted to them for safe custody. Further the complainant stated that the opposite parties are charging fees for their services and they have not taken ample diligence for ensuring the safety of vehicle. Complainant had suffered huge financial loss as a result of the deficiency of service and unfair trade practice of opposite parties. Thereafter the complainant approached the opposite parties several times requesting compensation for the loss occasioned by them. But there was no response. Hence the complainant sent a lawyer notice dt.3.4.05 to the opposite parties demanding the value of the vehicle and compensation. The 1^st opposite party has sent a reply denying liability and containing false and baseless contentions. The 2^nd opposite party has not sent any reply notice. Hence the complaint.

2. After admitting the complaint notice was issued to the opposite parties for their appearance. 1^st opposite party was absent and was set ex-parte. 2^nd opposite party appeared through counsel and version filed stating the following contentions. The 2^nd opposite party stated that the parking area was given to the 1^st opposite party as per the terms and conditions of a license agreement executed by the 1^st opposite party in favour of the 2^nd opposite party. Further the 2^nd opposite party stated that as per the clause 13 of the agreement the 1^st opposite party alone is responsible for loss or damage to any vehicle while in his custody. In view of this condition 2^nd opposite party wrote a letter to the 1^st opposite party on 7.5.05 to dispose of the complainant's claim in terms of the clause 13 of the agreement. The 2^nd opposite party submitted that the alleged loss of the vehicle was on account of negligence on the part of the 1^st opposite party and he alone is responsible for the same. Thereafter the 2^nd opposite party stated that there is no contract or agreement between the complainant and 2^nd opposite party regarding the parking of the vehicle or its safe custody. So the 2^nd opposite party stated that there is no deficiency in service on the part of the 2^nd opposite party in respect of the transaction and therefore the complaint against the 2^nd opposite party be dismissed with costs.

3. Complainant and the 2^nd opposite party filed proof affidavits along with documents Ext.A1 to A6 marked on the side of the complainant. Ext.B1 and B2 series marked on the side of 2^nd opposite party. Matter was heard.

4. The issues to be decided are ;

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

2. If so, what is the relief and costs?

5. Issues 1 & 2: We perused relevant documents on record. The definite case of the complainant is that complainant's employee M.R.Jayakumar parked the complainant's motorcycle at the vehicle parking stand of the Town Railway Station, Palakkad. M.R.Jayakumar duly paid Rs.2/- being the parking fee for the vehicle to the 1^st opposite party and thereafter on 1.4.05 the vehicle was not seen in the stand. Ext.A3 is the parking fee receipt issued by 1^st opposite party. The complainant states that the 1^st opposite party informed that the above said vehicle along with some others have been stolen from the stand last night. It is seen that even after the receipt of the notice of the complaint 1^st opposite party has neglected to appear before the forum. The attitude of the 1^st opposite party will lead to the inference that what is stated in the proof affidavit of complainant is true. Since the 1^st opposite party has not appeared before this forum and filed any version, the evidence rendered by the complainant stands unchallenged. In view of the above circumstances, we are of the view that there is deficiency of service on the part of 1^st opposite party. But the 2^nd opposite party states that there is no privity of contract between the complainant and the 2^nd opposite party. As per Ext.B1, clause 13 of the agreement the licensee shall be responsible for loss or damages to the vehicle or their parts while in his custody. As per clause 13 1^st opposite party alone is responsible for the loss.

6. Hence we hold the view that there is deficiency of service on the part of 1^st opposite party alone. 2^nd opposite party is exonerated from liability. In the result complaint allowed.

7. We direct the 1^st opposite party to pay an amount of Rs.25,000/- (Rupees Twenty five thousand only) to the complainant towards the value of vehicle lost and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of communication of order failing which the whole amount shall carry interest at the rate of 9% per annum.

8. Pronounced in the open court on this 28^th day of February, 2009

Sd/-

Seena.H

President

Sd/-

Preetha.G.Nair

Member

Sd/-

Bhanumathi.A.K

Member

Appendix

Exhibits marked on the side of complainant

Ext. A1 – Certificate of Registration of TN-38 K7159 motorcycle

Ext.A2 – Insurance certificate

Ext.A3 – Parking fee receipt

Ext.A4 – Complaint filed by Shri.M.R.Jayakumar to Town North Police Station,

Palakkad.

Ext.A5 (Series) – Lawyer notie to opposite parties, 3 postal receipts and 3

acknowledgement cards

Ext.A6 – Reply notie dt.30/04/2005.

Exhibits marked on the side of opposite parties

Ext.B1 – Agreement executed by 1^st and 2^nd opposite parties

Ext.B2 (Series) – Copy of the letter issued by 2^nd opposite party to 1^st opposite party

with acknowledgement and copy of complaint

Cost (allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost.