BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 359/2005 Filed on 28.10.2005<br /> Dated : 30.06.2008<br /> <br /> Complainant : <br /> <br /> Josemon Francis, Vadakkekara House, Edavetty P.O, Thodupuzha. <br /> <br /> (By adv. A. Gnanaprakasam)<br /> Opposite parties:<br /> <br /> 1.The Managing Director, K.T.D.C, Mascot Square, P.M.G Junction, Thiruvananthapuram.<br /> <br /> 2.The Manager, Mascot Hotel, P.M.G Junction, Thiruvananthapuram.<br /> <br /> (By adv. V. Manikantan Nair)<br /> <br /> This O.P having been heard on 31.05.2008, the Forum on 30.06.2008 delivered the following:<br /> ORDER<br /> SMT. S.K. SREELA: MEMBER<br /> The brief facts of the case are as follows: The complainant who was an occupant of Mascot Hotel from 02.06.2005 to 03.06.2005 had parked his Tata Indica car in the specified parking area pointed out by the security guard. The vehicle was parked on the front side of the Hotel by the side of the banyan tree. By about 5.30 p.m on 02.06.2005, the said banyan tree collapsed from the roots and a portion of the tree fell on the complainant's car causing heavy damage to the car. The said tree was standing in a very dangerous condition. The tree was very old and decayed and was standing on heaped soil. The decay was easily visible too. This accident would not have occurred if the Hotel authorities had taken timely action and it had occurred due to the negligence of the opposite parties. The complainant had to spend Rs. 183927/- to repair the damaged car out of which he obtained Rs. 140285/- from the Insurance company and he had to pay Rs. 43642/- from his own pocket. The complainant issued a notice to the opposite parties through his lawyer for refund of the said amount along with compensation, but since there was no positive response this complaint has been enunciated. <br /> The opposite parties have filed their version contending as follows. The complaint is not maintainable. The allegation that the complainant had parked the car at the specified parking area pointed out by the security guard of the opposite parties are denied. The banyan tree was not standing in a dangerous condition and it was very healthy. The Hotel authorities are not expected to destroy the natural beauty emanating from a healthy tree, which will be against true love of environments. The said tree fell down due to heavy wind which is purely an 'Act of God' and beyond the control of these opposite parties. There is no deficiency in service on the part of the opposite parties. The opposite parties are not responsible for the protection of the vehicles parked in the hotel compound. Moreover, it was clearly displayed “PARKING AT OWNER'S RISK”. The opposite parties are not expected to protect the inmates of the hotel against any act or danger which are purely beyond the control of these opposite parties. Hence prays for dismissal of the complaint with costs of these opposite parties. <br /> The complainant and the 2nd opposite parties have filed affidavits. The complainant has been examined as PW1 and marked Exts. P1 to P10 on his part. 2nd opposite party has been examined as DW1 and marked Exts. D1 to D4. <br /> The issues raised for consideration are:-<br /> (i)Whether there is any deficiency in service on the part of the opposite parties?<br /> (ii)Whether the complainant is entitled for the reliefs claimed for?<br /> Point No. (i):- Admittedly a banyan tree in Mascot Hotel collapsed causing damage to cars on 02.06.2005. The matter to be considered is whether the collapse of the banyan tree was due to he negligence on the part of the opposite parties. The complainant alleges that the said tree was standing in a very dangerous condition and that the tree was very old and decayed and was standing on heaped soil, the decay was easily visible too. The opposite party has contended that it was a healthy tree. The complainant alleges that he was asked to park the car at the specified area pointed out by the security guard of the opposite parties. We cannot understand the circumstance which forced the complainant to park his car without any protest under a tree which the complainant alleges to be in a dangerous condition. It is very hard to believe that a prudent man like the complainant will ever park his vehicle under a tree which is conspicuously in a dangerous condition as detailed in the complaint. Moreover, the pictures and the video clipping of the incident goes to show that it is a healthy tree with green leaves. The opposite parties further contend that they are not responsible for the protection of the vehicles parked in the hotel compound and it was clearly displayed “PARKING AT OWNER'S RISK” which is corroborated by Ext. D1 photographs and Ext. D2 video clipping. The parking area is for ensuring orderly parking and the complainant has no case that the opposite party has collected any amount from him as parking fee. The opposite party has provided a free parking space and they have not undertaken to ensure the safety of the vehicle. As per the deposition of DW1, for the inmates of the hotel, they have provided underground parking facility which has not been proved otherwise by the complainant. Hence, since the opposite party has not charged any parking fee and when there is a board displaying “PARKING AT OWNER'S RISK”, the opposite party cannot be fastened with the responsibility of the safety of the vehicle. <br /> Another aspect to be considered is, what resulted in the fall of the tree, whether it is due to the negligence of opposite parties in not cutting the decayed tree as alleged by the complainant or due to the Act of God as contended by the opposite parties. We perused the records on file produced by both parties. Ext. D3 is the weather report of the India Meteorological Department, Thiruvananthapuram. As per D3, it is evident that there was rainfall on that day and as per it, it is to be concluded that the weather condition was not normal on 02.06.2005 in Thiruvananthapuram city. The opposite parties' hotel is in the heart of the city. Taking all the above into consideration we have to conclude that due to unfavourable weather condition, the tree collapsed causing damage to the vehicle of the complainant, which can only be considered as an unexpected event which is totally out of control of the concerned authorities and a clear case of Act of God for which nobody could be faulted and hence the opposite parties cannot be made liable. <br /> According to the opposite parties, the 1st and 2nd opposite parties are only employees of KTDC which is a corporate body and the corporation is not made a party and hence no case will lie against opposite parties 1 & 2. It is an admitted fact that the opposite parties are a body corporate and as such in our view, the Managing Director, Department of KTDC, Government of Kerala is also an essential party to the complaint. <br /> For the foregoing discussions it is to be concluded that the opposite party has succeeded in establishing that there is no negligence and deficiency in service on their part and the damage has been caused solely due to the Act of God which is beyond their control. <br /> Point (ii):- In the light of the above discussions, the complainant is found not entitled for any reliefs claimed.<br /> In the result, the complaint is dismissed. No order as to costs.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th June 2008. <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> O.P.No. 359/2005<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of Bill No. 581 dated 03.06.2005 of the Mascot Hotel. <br /> P2 - Photocopy of Invoice No. 3160 dated 11.06.2005 of Kulathunkal Motors, Tvpm. For Rs. 13955/-.<br /> P3 - Photocopy of Invoice No. 3124 dated 10.06.2005 of Kulathunkal Motors, Tvpm. for Rs. 123276/-.<br /> P4 - Photocopy of Bill No. 1848 dated 11.06.2005 for Rs. 38570/-.<br /> P5 - Photocopy of Bill No. 1849 dated 11.06.2005 for Rs. 5510/-.<br /> P6 - Photocopy of Invoice No. 3245 dated 13.06.2005 of Kulathunkal Motors, Tvpm. for Rs. 2616/-.<br /> P7 - Photocopy of cash receipt No. 2820 dated 13.06.2005 for Rs. 17581/-.<br /> P8 - Original photograph of the scene of accident.<br /> P9 - Copy of advocate notice dated 08.07.2005.<br /> P10 - Photocopy of two postal acknowledgement cards dated 08.07.2005.<br /> III OPPOSITE PARTIES' WITNESS :<br /> <br /> DW1 - Syam Sundar.<br /> <br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> <br /> D1 - Original photos of the scene 6 Nos. <br /> D2 - Original video C.D of the scene of the accident. <br /> D3 - Original copy of weather report of Tvpm city as on 02.06.2005 from India Meteorological Department, Govt. of India letter No. C 201(WR)/4127 dated 23.10.2006.<br /> D4 - Photocopy of reply notice dated 14.07.2005.<br /> <br /> <br /> <br /> PRESIDENT<br />