Andhra Pradesh
Chittoor-II at triputi
CC/78/2018
N.C.S.M.Prasad, S/o Late N.Subbarao - Complainant(s)
Versus
M/s Big Bazaar, Rep. by its Authorized Signatory, - Opp.Party(s)
In person
12 Mar 2020
ORDER
Filing Date: 20-11-2019 Order Date: 12-03-2020
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.
Present:- Sri. T.Anand, President (FAC)
Smt.T.Anitha, Member
THURSDAY THE TWELTH DAY OF MARCH, TWO THOUSAND AND TWENTY
C.C.No.78/2018
Between
Sri. N.C.S.M.Prasad,
Aged about 55 years,
S/o. Late N. Subba Rao,
Residing at # 581,
Andhra Bank Lane,
Balaji Colony,
TIRUPATI – 517502. ... Complainant
And
- M/s. Big Bazaar,
Represented by its authorized Signatory,
BNR Mall, 19-4-9/6, STV Nagar,
Air by Pass Road, Near TVS Show Room,
TIRUPATI – 517501.
- M/s. Smart Parking India Pvt. Ltd.,
Represented by its authorized Signatory,
BNR Mall, 19-4-9/6, STV Nagar,
Air by Pass Road, Near TVS Show Room,
TIRUPATI – 517501. … Opposite Parties
This complaint coming on before us for final hearing on 28.02.2020 and upon perusing the complaint and other relevant material papers on record and on hearing of Sri.N.C.S.M.Prasad, party in person for complainant and Sri.S.Kesava Kumar, party in person for opposite party No.1 and Sri.V.Sunil Kumar, counsel for the opposite party No.2 having stood over till this day for consideration, the Forum made the following.
ORDER
DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)
ON BEHALF OF THE BENCH
Complaint is filed under section 12 of the Consumer Protection Act 1986, praying for direction to the opposite parties to refund an amount of Rs.10/- collected from the complainant towards parking charges on 10.10.2018, to pay compensation amount of Rs.90,000/- for causing mental agony due to deficiency of service and unfair trade practice and to pay Rs.8,000/- towards litigation expenses.
2.The complaint allegations are as follows:- On 10.10.2018 at 2.45PM the complainant along with his son Mr.N.Sudeep Chandra went to BNR Mall on two wheeler bearing registration No.AP03 CB 5292 with an intention to buy dresses in Big Bazaar Show room (opposite party No.1) which is situated in BNR Mall. At the entrance of BNR Mall, security personnel have directed them to go inside and park two wheeler. At the entrance of parking area, Smart Parking India Pvt. Ltd (opposite party No.2) personnel have come and collected Rs.10/- towards parking charges for his vehicle vide receipt with token No.44722 and invoice No.SM02-04-4722. When he questioned the opposite party No.2 personnel about collection of parking fee from the visitors of BNR Mall, they said that opposite party No.2 has taken the parking for lease for BNR Mall and it is not possible to provide parking space at free of cost. The complainant and his son went into the Big Bazaar Show room and purchased dresses worth of Rs.2,997/- vide invoice No. 2696019000000349 dt: 10.10.2018 and came out at 3.35PM. While he was taking two wheeler from parking area, the opposite party No.2 personnel have demanded to return the parking fee token to them but he refused to give back to them and came out of BNR Mall. As per government of Andhra Pradesh rules and as per the directions of Hon’ble High Court of Andhra Pradesh, the commercial shopping malls should provide free parking place for the vehicles of the visitors/customers without charging parking fee. On 02.05.2003 the Hon’ble High court of Andhra Pradesh in the case between Ch. Madan Mohan and Others Vs Municipal Corporation of Hyderabad gave directions, not to collect any parking fee from the visitors and also held that builders/owners of commercial complexes or owners of apartments in a commercial complex have no absolute right to lease out or license out parking areas. In this case opposite parties 1 and 2 have violated the Government rules and judgment of Hon’ble High Court of Andhra Pradesh by collecting parking charges which amounts to unfair trade practice. He got issued two notices to opposite parties 1 and 2 dt: 12.10.2018 for which the opposite party had given reply through their counsel vide reply notice dt: 14.11.2018 which was received by complainant on 19.11.2018. It is therefore prayed to allow the complaint.
3.Opposite parties 1 and 2 have filed their separate written versions.
4. Opposite party No.1 contended as follows:-At the outset, complaint averments are denied. Notice dt:12.10.2018 issued by the complainant had been forwarded to opposite party No.2. There are many retailers in the BNR Mall and opposite party No.1 is one among them and unaware about the arrangement regarding parking area. It is the responsibility of the Mall or its agent to ensure maintenance of the common area of the mall used the parking space. Opposite party No.1 being one among the occupant in the Mall is neither responsible nor liable for any issue related to common area/parking area. It is denied that opposite party No.1 has violated the Government rules and collected parking fee. In fact, the parking fee is paid by the complainant to opposite party No.2 and not to the opposite party No.1. The opposite party No.1 is not collecting parking fee from any of its customers. It is stated that the complainant is the customer of opposite party No.1 to the extent of service/product delivered by opposite party No.1 and not for the parking fee which the complainant had alleged to have paid to third opposite party towards parking facility. The parking fee paid by the complainant to the third opposite party is without any privity to the service/product provided by the opposite party No.1. It is further stated that there is no cause of action against opposite party No.1. There is no principal and agent relationship between opposite party No.1 and opposite party No.2, it is prayed to dismiss the complaint.
5.Opposite party No.2 written version contended as follows:- The opposite party No.2 denies the entire allegations and averments made by the complainant. It is denied that the complainant had himself to have parked his two wheeler in the parking area in BNR Mall which belongs to M/s. BNR Infrastructure Projects Private Ltd., who are the owners of the commercial complex. The 2nd opposite party cannot conclude that, complainant had come to the mall for the purpose of purchasing dresses in the Big Bazaar Show room which is situated in the BNR Mall. The complainant has not produced any proof to prove his credibility as ownership of two wheeler alleged to have parked inside the commercial complex. The complainant has not proved before this court that the complainant himself parked the vehicle inside the parking area. The 2nd opposite party further stated that the said vehicle with registration No.AP03 CB 5292 does not belongs to the complainant as per their records. It is denied that, complainant utilized the services of the opposite party No.2 in true spirit. The complainant claimed to have parked the two wheeler inside the commercial complex belonging to M/s.BNR Infrastructure Projects Pvt. Ltd., being the real owner of the commercial complex and also parking space inside it.
6. It is denied that opposite party No.2 has acted as an agent to M/s.BNR Infrastructure Projects Pvt. Ltd., and as such BNR Infrastructure Projects Pvt. Ltd., is principal and opposite party No.2 is its agent. Being the agent of BNR Infrastructure Projects Pvt. Ltd., they collect charges towards maintenance of the parking area on behalf of the principal and also working under instructions of the BNR Infrastructure Projects Pvt. Ltd.,. The principal of the 2nd opposite party i.e. BNR Infrastructure Projects Pvt. Ltd., is only providing parking facility to persons who are visiting the mall. The parking charges are being paid for the purpose of taking care of the vehicle by the commercial complex owners and not towards parking fees as alleged by the complainant. The 2nd opposite party does not have any independent authority to act on its own or to provide any facility on its own or have any right to do so inside the commercial complex. There is no privity of contract between opposite party No.2 and complainant. The complainant is not a consumer in so far as the opposite party No.2 is concerned. The 2nd opposite party further stated that, right to park vehicles is basically provided only by M/s. BNR Infrastructure Projects Pvt. Ltd., authorities and not by opposite party No.2. The complainant has failed to implead the complex owners i.e. M/s. BNR Infrastructure Projects Pvt. Ltd., who are the actual and necessary party to the contract, but wrongly chosen the 2nd opposite party in order to harass them. The complainant therefore has not come to the court with clean hands and complaint is liable to be dismissed for non-joinder of necessary party. By virtue of Section 230 of the Indian Contract Act, agent could not be sued when principal name had been disclosed. The complainant ought to have approached proper forum for redressal. There is no specific allegation against opposite party No.2 that they committed deficiency in service. Further there is no cause of action as against opposite party No.2 to file complaint. The Hon’ble High Court of Andhra Pradesh in the case between Ch. Madan Mohan and Others Vs Municipal Corporation of Hyderabad held that owners of commercial complex do not have right to collect parking fee whereas in this matter the 2nd opposite party is not the owner of the commercial complex. It is therefore prayed to dismiss the complaint.
7. The complainant filed chief evidence affidavit as PW-I and got marked Ex:A1 to A8. On behalf of the opposite party No.1, Sri. Kesava Kumar Salpadi, S/o. S.Kannaiah, working at Admin. Manager at Big Bazaar filed chief evidence affidavit and no documents are marked. On behalf of the opposite party No.2 Mrs.Khandimaddi, D/o. Manickam MuthuKarupanna Thevar who is working as director of opposite party No.2 filed chief evidence affidavit but no documents are executed.
8. Now the Point for consideration is:-
Whether there is deficiency of service and unfair trade practice on part of the opposite parties? If so, to what extent, the complainant is entitled for the reliefs sought in the complaint?
9. Point:- In the written arguments the complainant argued that, he along with his son purchased dresses worth of Rs.2,997/- vide Ex:A2 on 10.10.2018 in Big Bazaar Show room (opposite party No.1) by parking their two wheeler in the parking area and by paying parking fee of Rs.10/- to opposite party No.2 personnel for which parking fee token was issued. It is the contention of complainant that the collection of parking fee from the consumer is against Andhra Pradesh Government rules and also in violation of direction of Hon’ble High Court of Andhra Pradesh given in the judgment between Ch. Madan Mohan and Others Vs Municipal Corporation of Hyderabad. It is further argued that he caused two legal notices to opposite parties 1 and 2 in this regard, but opposite party No.2 having received the notice issued irresponsible reply on 14.11.2018 which was served on him on 19.11.2018 but opposite party No.1 did not even respond to the notice and as such the complainant is seeking refund of parking fee of Rs.10/- paid to opposite party No.2 in addition to compensation of Rs.90,000/- for undergoing mental agony due to deficiency of service on part of the opposite parties.
10. The opposite party No.1 in the written arguments submitted that there are many retailers in the Mall and opposite party No.1 is one among them and opposite party No.1 is unaware of the parking arrangements made by the Mall and as such it is the responsibility of the Mall or its agent to ensure maintenance of Common Area of the Mall and parking space. It is further contended that opposite party No.1 never violated the Government rules and judgment of Hon’ble High Court of Andhra Pradesh with regard to collection of parking fee. It is further argued that opposite party No.1 has nothing to do with payment of parking fee by complainant to opposite party No.2. It is further argued that the complainant is not consumer of opposite party No.1 and there is no cause of action to file the complaint against opposite party No.1.
11. Opposite party No.2 had filed written arguments contending that 2nd opposite party is a Private limited company and involved in providing parking facilities for people who enter the Malls and complexes belonging to the Mall owners and also worked under the owner of the Mall or the building owner namely M/s. BNR Infrastructure Projects Pvt. Ltd.,. There is no proof to show that the complainant along with his son purchased clothes from Big Bazaar by parking his two wheeler bearing No.AP03 CB 5292. The complaint has to be dismissed for non-joinder of necessary party i.e. Mall owner M/s. BNR Infrastructure Projects Pvt. Ltd.,. It is argued that opposite party No.2 acted only as an agent to M/s. BNR Infrastructure Projects Pvt. Ltd., who is principal being an owner of the commercial complex and collected maintenance charges towards maintenance of parking area on behalf of the principal. It is submitted that principal of opposite party No.2 i.e. M/s. BNR Infrastructure Projects Pvt. Ltd., are the persons who are providing parking facilities to persons who are entering the BNR Mall and also taking care of vehicles which are being parked inside the commercial complex belonging to them. The said charges collected are being paid for the purpose of taking care of the vehicle by the commercial complex owners and not towards parking fees as alleged by the complainant and the collected charges goes to the bank account of the principal M/s. BNR Infrastructure Projects Pvt. Ltd.,. The opposite party No.2 does not have any independent authority or right to act on its own inside the commercial complex belonging to the principal. There is no privity of contract between the 2nd opposite party and the complainant. The complainant is not consumer of the 2nd opposite party. By virtue of Section 230 of Indian Contract, the agent could not be sued when the principal has been disclosed and the complaint needs to be dismissed for non-joinder of necessary parties. In Ch.Madan Mohan And Others Vs Municipal Corporation of Hyderabad case the Hon’ble High Court of Andhra Pradesh decided that the owners of commercial complex do not have right to collect parking fees and whereas in this instant case opposite party No.2 is not the owner of the commercial complex. Finally it is contended that opposite party No.2 has not committed any deficiency of service and involved in unfair trade practice as alleged by the complainant and as such it is prayed to dismiss the complaint.
12. The opposite party No.2 counsel placed reliance of several citations which are as follows:-
i) In the decision reported in CDJ 2008 SC 1891 between Prem Nath Motors Ltd., Vs. Anurag Mittal the Hon’ble Apex Court it is held that Section 230 of Contract Act categorically makes it clear that an agent is not liable for the acts of a disclosed principal subject to a contract of the contrary. No such contract to the contrary has been pleaded. An identical issue was considered by this Court in the case of Marine Contained Services South Pvt. Ltd., Vs. Go Go Garments AIR 1999 (SC) 80 where a similar order passed under the Consumer Protection Act was set aside by this Court. It was held that by virtue of Section 230 the agent could not be sued when the principal had been disclosed.
ii) Another decision reported in CDJ 2016 SC 704 between Virender Khullar Vs American Consolidation Services Ltd. & Others the Hon’ble Apex Court it held as follows:- Respondent No.1 was simply acting as agent of company as such, in view of Section 230 of the Act, it cannot be held personally liable to enforce contract entered between its principal and appellants – As far as liability of Respondent No.2 Central Fidelity Bank and that of Respondent No.4 is concerned, it is rightly held by Commission that Respondent No.4 had carried consignment and delivered same as per Bill of Lading and there is no contract between appellants and Respondent No.4 – Also Respondent No.2 Bank cannot be held liable for deficiency of service, as amount was not collected from consignee, as such there was no question of remitting it to appellants – complainants by Bank – There is no infirmity in impugned order passed by Commission – Appeals dismissed.
iii) Another decision rendered by State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in the case between M.K.Goel Vs LIC in first appeal No.419 of 2013 it is held as follows:- The respondent/opposite party had only facilitated securing of policy, from the New India Assurance Company Limited. The question, as to whether, repudiation of claim by the New India Assurance Company Limited (Insurer) was legal and valid or not, could not be determined, without impleading the said company. In other words, the controversy in the complaint could not be effectively and completely adjudicated upon, in the absence of the New India Assurance Company being a party to the complaint. The finding of the District Forum holding that the complaint was bad for non-joinder of necessary party, and as such, liable to be dismissed, is correct. The order of the District Forum, being legal and valid, is liable to be upheld.
iv) In another decision rendered by State Consumer Disputes Redressal Commission, in the case between Taruna Madaan Vs.Charanjit Sachdeva it was held as follows:- the contract was entered between the complainant and opposite parties Nos.2 and 3 through opposite party No.1, who acted as an Agent. In these circumstances, by virtue of Section 230 of the Contract Act, the complainant could not have maintained this complaint against opposite party No.1 on the ground that there was deficiency in service on the part of opposite parties Nos.2 and 3 or that they adopted unfair trade practice. Opposite party No.1 could not have been made liable jointly and severally with those opposite parties.
13.The complainant filed Ex:A2 tax invoice in order to show that he had purchased dresses on 01.07.2017 from Big Bazaar situated in a BNR Mall and in order to prove that he parked the vehicle by paying Rs.10/-, he filed parking token under Ex:A1. It is the contention of the complainant that in view of the Hon’ble High Court of Andhra Pradesh Judgment, the collection of parking fee is prohibited. In Ch.Madan Mohan And Others Vs. Municipal Corporation of Hyderabad reported in AIR 2003 the Hon’ble High Court of Andhra Pradesh held as follows:- “In view of the above, I must hold that builders/owners of commercial complexes or owners of apartments in a commercial complex have no absolute right to lease out or license out parking areas to the petitioners. Such leasing or alienation is prohibited by the Apartments Act as well as various rules and regulations. I must, however, hasten to add that in case of residential multi-storeyed buildings, it is always permissible for the associations of apartment owners to regulate, without any extra charges, the enjoyment of common areas and common places by arriving at a consensus and conditions to be complied with by the users for availing such facilities. In so far as multi-storeyed commercial complexes are concerned, the builder/owner under law has impliedly accepted by reason of building permission and other provisions to keep parking places for the use by visitors to the complex and hence builders/owners or their licensees cannot charge any fees”.
14. Ex:A6 is the letter addressed to Public Information Officer and Country Planning Department, Government of Andhra Pradesh, Amaravati dt: 10.01.2018 by the complainant seeking information regarding collection of parking fees in theatres and multiplex. For that reply is received stating that, there is no provision for collection of parking fee in theatres and multiplex and multiplex complexes. The contention of the complainant is that there are rules by Government of Andhra Pradesh to collect parking fees and contrary to the rules, the parking fee has been collected by opposite parties 1 and 2 from the consumers. The argument of the opposite party is twofold. Firstly it is contended that, opposite party No.2 is only an agent of BNR Mall and act on the instructions of the principal i.e. BNR Mall and as such whatever liability is there, opposite party No.2 cannot be held liable as it is only an agent. The above referred citations are relied upon with regard to the principle that agent is not liable for the acts of the principal. Secondly it is contended that in the absence of BNR Mall as party to this opposite party, the dispute cannot be adjudicated effectively. First of all there is no document filed by opposite party 2 and 1 to show that there is an agreement between BNR Mall and opposite party No.2 to collect parking fee. In the absence of any document in this regard, we are not in a position to accept the contention of opposite party No.2 that BNR Mall is necessary party in this case. Nothing prevented opposite party No.2 from filing implead petition to implead BNR Mall. But opposite party No.2 did not take any such steps. From the written versions filed by opposite parties 1 and 2 we are convinced that each is throwing blame on the other regarding collection of parking fee. According to opposite party No.1 they are not concerned about collection of parking fee by opposite party No.2. According to opposite party No.2, it is only an agent and the owner of the Mall i.e. BNR Infrastructure Projects Private Limited and as per the agreement between them, parking fee is collected. So it is not denied that opposite party No.2 is not collecting parking fee from the customers who are coming to the Mall for purchasing goods.
15. In view of the judgment of the Hon’ble High Court of Andhra Pradesh that builders/owners of commercial complexes have no absolute right to lease out or license out parking areas which is prohibited by apartments act as well as various rules and regulations, we are of the view that the collection of parking fee from the consumers by opposite party No.2 is illegal. The argument of opposite party No.2 that the complainant is not consumer within the definition of Section 2(1)(d) of Consumer Protection Act, 1986 does not hold water, in view of the fact that the complainant purchased dresses by entering into the Big Bazaar situated in BNR Mall by parking his vehicle in the common area space where the opposite party No.2 collected parking fee. Hence we are inclined to allow this complaint. Accordingly the complaint is partly allowed by holding opposite parties 1 and 2 jointly and severally liable to pay parking fee of Rs.10/- and pay compensation amount of Rs.1,000/- in addition to costs of litigation of Rs.2,000/-.
16. In the result, complaint is partly allowed directing the opposite parties 1 and 2 to refund an amount of Rs.10/- (Rupees ten only) being the parking fee charges and also compensation amount of Rs.1,000/- (Rupees one thousand only) and costs of litigation of Rs.2,000/- (Rupees two thousand only) to the complainant. The order shall be complied within six (6) weeks from the date of receipt of copy of this order failing which, the above said compensation amount of Rs.1,000/- (Rupees one thousand only) shall carry interest @ 9% p.a from the date of this order till realization.
Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 12th day of March, 2020.
Sd/- Sd/-
Lady Member President (FAC)
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: Sri N.C.S.M. Prasad (Chief Affidavit filed).
Witnesses Examined on behalf of Opposite PartY/S.
RW-1: Sri Kesava Kumar Salpadi (Chief Affidavit filed).
RW-2: Mrs. D. Khandimaddi(Proof Affidavit filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
Exhibits (Ex.A) | Description of Documents |
Computer generated copy of PARKING TOKEN bearing Token No.44722. Dt: 10.10.2018. | |
Computer generated copy (in Original) of TAX INVOICE/BILL OF SUPPLY BIG BAZAAR (FUTURE RETAIL LTD), Tirupati. Dt: 10.10.2018. | |
Notices(2) sent to the Opposite Parties. Dt: 12.10.2018. | |
Postal Acknowledgement Cards (2) in Original. | |
Reply Notice for your Letter Dt: 12.10.2018 sent by the 2nd opposite party. Dt: 14.11.2018. | |
Self attested photo copy of Government of Andhra Pradesh Information Under RTI Act, 2005. Dt: 10.01.2018. | |
Photo copy of Certificate of Registration(AP03CB5292 Regd. Owner: Indira Priya Darsini). | |
Self attested photo copy of Board displayed(BNR ”FREE PARKING INSIDE THE MALL”) by the opposite parties. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s
NIL
Sd/-
President (FAC)
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to: 1) The Complainant,
2) The Opposite parties 1 and 2.
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