Delhi

StateCommission

CC/544/2015

SH. NITIN RAWAT - Complainant(s)

Versus

M/S GOLD'S GYM - Opp.Party(s)

15 Jul 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 15.07.2016

Date of Decision : 03.08.2016

Complaint No. 544/15

 

In the matter of:

Shri Nitin Rawat,

S/o Late Shri Puran Singh Rawat,

R/o 161-A, Sainik Farms,

Cariappa Marg,

New Delhi-110016.                                                                                          …................ Complainant

 

VERSUS

M/s. Gold’s Gym,

Through its Managing Director / Franchisee,

Mr. S.K. Manchanda,

E-15, East of Kailash,

New Delhi-110065.                                                                                         ….....Opp. Party

                                                                

CORAM

 

O. P. Gupta - Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 O.P. Gupta - Member (Judicial)

 

1. The complainant has come forward on the allegations that he paid for availing services of OP for routine  physical workout to maintain health on the advice of doctor, consulted for back pain from 02.09.2014 to 01.03.2015. In order to enroll the complainant as member of the Gym, OP enrolled number of facilities that were offered by it and provided facilities and services section of the Gold Gym website. The facilities and services included strength training, the free weight area, personal training, cardio, massages, trave card, member transfers, fitness assessment and testing, steam room, valet parking, nutrition, weight loss, lockers etc. He was using Car No. DL-8CZ-2114  for commuting  to Gym and had been using valet parking facility offered by OP. As usual on 19.05.2015, he went to Gym and parked above car in the premises of the OP and handed over the keys of the car to the valet parking attendant.  He also entered  the details vis-à-vis the name, car no. and time of entry to the gym in the valet parking log maintained by the OP. As per practice adopted by OP, valet parking token bearing no. 000059 was given to the complainant by security staff of OP. Complainant proceeded for routine physical workout at the gym and after completing its routine,  he returned to take the car for his way back home.  But to his utter surprise and shock, he was told that the car he had handed over to the valet parking attendant, could not be returned back to him as it had been stolen. The said state of affairs points towards the gross negligence of the OP in making lapse in keeping the car keys and the car of the complainant safe and secure. He furnished the complaint to the police on the same day in which he mentioned that he handed over the keys of his Duster car bearing no. DL-8CZ-2114 to Mr. Ram / employee/driver of Mr. Manchanda, owner of the Gold Gym. Cash amounting to Rs.32,000/- original RC, DL, certificate and marksheet of 10 & 12^th , ATM Card and cheque book of ICICI Bank were in the car. After much persuasion the  police registered FIR on 21.05.2015.  Father of the complainant had passed away on 10.03.2015 and entire family was bereaved due to which the family stayed for two months in their Village – Bawal, Distt. Rewari, Haryana for performance of the last rites and ceremonies.  He could not renew the insurance of car due to said reason.  He was carrying cash of Rs.32,000/- for process of renewal of insurance of the car.  The price of the car was Rs.13,61,804/- and allied expenses thereupon Rs.57,000/- for which receipts were filed alongwith complaint. The car was fitted with good amount of accessories, namely, leather seat covers, JBLK high end music system, GPS system, front and rear steel bumper guards, floor mats, steering cover, chrome high lightings, car perfume etc. total amounting to Rs.1,50,000/-.  He has been deprived of so much on transport and for his commuting requirements had been travelling through taxi for which the expenditure till filing of complaint had been Rs.45,000/-.  He was deprived from using Gym services after registration of the FIR though he had paid membership fee till 01.03.2016.Thus, complainant is entitled for refund of consideration paid by him viz. Rs.35,000/- .  He was harassed and prayed to the extent that he suffered deterioration in his physical health which at times has taken graver proportions  so as to be subjected to severe medication.  Hence, this complaint for Rs.16,80,804/- as compensation for loss suffered by complainant as direct consequences of deficiency in service by OP, Rs.5 lacs as compensation for mental agony, trauma and harassment  as well as compensation for fulfilling current commuting requirements and  professional loss, interest @24% on the amount as determined by this Commission from date of theft till the date of actual payment, Rs. 50,000/- towards cost of litigation.

 

2. The OP was served for 02.12.2015. Its counsel appeared, filed memo of appearance and received copy of complaint.  He was directed to file WS within four weeks with an advance copy to the complainant. On 02.02.2016 the counsel for OP wanted to file WS which was beyond prescribed period of 30 days permissible under Consumer Protection Act. In view of decision of Hon’ble Supreme Court in New India Assurance Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. AIR 2016 SC86, WS was not taken on record.

 

3. The OP moved an application u/s 17 Consumer Protection Act for dismissal of the complaint for want of pecuniary jurisdiction. The complainant filed reply to the same and application has been kept pending to be decided alongwith final arguments.
4. The complainant filed his own affidavit in evidence.  He reiterated the averments made in the complaint and relied upon documents Annexure A-1 to Annexure A-13.

 

5. I have gone through the material on record and heard the arguments. First I proceed to decide the application of OP u/s 17 of the  Act regarding dismissal of complaint for want of pecuniary jurisdiction.  The counsel for OP submitted that complainant has claimed reimbursement of  Rs.16,80,404/- and Rs.5 lacs for mental agony totalling Rs.21,80,404/- to invoke the pecuniary jurisdiction of this Commission. The price claimed  by complainant is of brand new car as in April, 2013.  Out of the same Rs.11.99 lac was the cost of the said car as on 03.04.2013, complainant got the last insurance policy by Bajaj Allianz and declared value of  Rs.10.25 lacs.  The value of the car would have further reduced by 10% on account of use between period 21.04.2014 to 20.04.2015 and thereby value must have come to Rs.9,22,500/-.  Award of damages is within the discretion of this Commission, the same may be awarded or may not be awarded and therefore the same cannot form basis of valuation complaint at the date of filing. He has relied upon the decision of National Commission in Shahbad Co-operative Suga Mills Ltd. Vs., National Insurance Co. Ltd. & Ors. II (2003) CPJ  81in which it was held that interest claimed by complainant till date of filing complaint, pendent lite and future, cannot be added for the purpose of pecuniary jurisdiction.  The same has been followed by BSES Rajdhani Power ltd. Vs M/s. Saraf Project Pvt. Ltd. FA No.84/2009 dated 07.08.2013.

 

6. Counsel for OP relied upon the decision in CC No.203/2002 titled as Dilip Damodar Soparkar and Ors. Vs. Network Construction Pvt. Ltd. decided by Maharashtra State Commission on 26.03.2004, CC No.12/04 titled as Zujarbhai Y. Katawala Vs. Marol Land Developers and Ors. decided by Maharashtra State Commission on 26.02.2004, CC No.135/2011 titled as Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute decided by National Commission on 30.03.2012, CC No.19/14 titled as Vinita Goyal Vs.Unitech Ltd.  decided by Haryana State Commission on 21.02.2014, appeal titled as Jagdish Thapliyal Vs. United India Insurance Co. Ltd. decided by National Commission on 04.02.2010 to make out that exaggerated value can be checked.  The same are not applicable to the facts of the case in hand.  In fact if contention of the OP is accepted, it would run contra to decision of Hon’ble Supreme  Court in Charan Singh Vs. Healing Touch Hospital and Ors. where it was held that Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. In the said case order of the National Commission dismissed the complaint holding that claim of Rs.30 lacs made by complainant was unrealistic, exaggerated and excessive. The said order was set aside by Hon’ble Supreme Court.

 

7. The complainant has opposed said application by filing reply. I have gone through the application and reply. To my mind the decision in Shahbad Co-operative Suga Mills Ltd. Vs., National Insurance Co. Ltd. & Ors. is not applicable  as that pertains to interest only.  It does not speak of  compensation for mental agony, harassment etc.

 

8. Total value of the amount claimed by the complainant towards principal, amount of compensation has to be seen for the purpose of  pecuniary jurisdiction. Whether the same would be granted or not and whether it would be in full or part is not relevant. The jurisdiction is to be decided on the basis of claimed amount by the complainant and not amount which may be awarded by the court at the last stage. Viewed in that light the total of the amount claimed by complainant comes to Rs.22,30,804/-. Hence this Commission has pecuniary jurisdiction. The application is dismissed.

 

9. Now, coming to the merits of the complaint, the case of the complainant is that he handed over his Duster car in the valet parking of Op. The same was lost due to negligence of OP. In support of his case, he has filed copy of  purchase invoice of the car, copy of insurance policy, copies of receipts of expenditure, copy of receipt showing membership of complainant with OP, copy of valet parking log book of OP and copy of police report, copy of email dated 23.07.2013 written by Ms. Pooja Malhan on behalf of OP to Radhika Joshi. The said  mail contains list of facilities available with the OP. The same includes valet parking.
10. The counsel for OP tried to escape from the said mail on the ground that same has been sent by personal mail of Pooja Malhan and not the official mail of OP. The complainant suitably replied the same by stating that Pooja Malhan informed that office mail was not working on that day and so she sent mail from her personal mail.

 

11. Moreover, counsel for complainant submitted that difference in mail address has not caused any prejudice to the OP.  The reason bign that it reproduces the facilities shown to be available with OP, at the website of the OP. The list available on website at C-11 is placed at page-46 & 47.  The same contains valid parking/as one of the facilities available. It is only this which is in dispute in the present case.

 

12. The counsel for OP wanted to make out that the complainant had left his car outside the premises of OP, the OP is not responsible for safety of such car.  According to him membership of OP was for the purpose of facilities of Gym only and did not include safety or responsibility of car of the members. The same is demolished by copy of Vallet Log book maintained in the office of Op.  Copy of this annexure C-6 is at page 37 & 38.  There is  no reason why the Op is maintaining the log book of valet parking, if it was not to  take care of the vehicle of  the members.  The car of the complainant finds mention at Sl. No.59.
13. Counsel for complainant relied upon the decision of the National Commission in FA No.102/04 titled as M/s. Hotel Hyatt Regency Vs. Atul Virmani decided on 01.08.2008.  In that case issue involved was if the keys of car given by customer of Five  Star for parking to the  uniformed valet of the hotel is stolen, whether the Five Star is responsible for making good the loss to the consumer.  It was held in the said judgement that facilities provided free of cost like newspapers, complementary fruit basket and mineral water bottles. Luggage facility for few hours after early checking out is also provided and so also valet parking facilities are not actually free of cost. They are more than made up by exorbitant rental charges, from high charges for food and very high entrance fee for discotheque etc. It was held if hotel authorities  cannot keep car safely, they should have put a big board at the entrance of the hotel proclaiming ‘Beware giving car keys to the valet of this hotel does not ensure safety of your car, Management is not responsible for theft of the car’. This has not been done by the hotel. Hence, hotel was held responsible and the order of this Commission  awarding Rs.2 lacs with 10% interest from the date of theft till date of payment and Rs.5,000/- as cost was uphold.

 

14. In the cited cases, earlier decision of National Commission in Mahesh Enterprises Vs. Arun Kumar & Ors. II (2001) CPJ 1 was followed.  In that it was held that circumstances would constitute bailment and the person responsible for the management of the parking area was liable to make good the loss.

 

15. However, it may be observed that the value of car declared by complainant for the purpose of insurance was Rs.10.25  lacs as per copy of insurance policy available  as Annexure-C-II at page-26.  Thus, claim of the claimant should be confined to that amount only instead of the full purchase price of Rs.13,61,804/-.

 

16. There is no reason to disallow claim of the complainant for Rs.57,000/- towards allied expenses, Rs.1.50 lacs for accessories like leather seat covers, JBLK high end music system, GPS system, front and rear steel bumper guards, floor mats, steering cover, chrome high lightings, car perfume etc. for which he has placed on record the copies of the receipts.  This is more so when OP has failed to controvert the same due to his WS being taken of the record as mentioned in the beginning of this judgement. The complainant is also entitled to loss of cash of Rs.32,000/- kept in the car for the purpose of insurance which expired and which could not be renewed due to death of father of the complainant.

 

17. The expenses of Rs.45,000/- incurred by complainant for commuting through taxi are unfounded and is disallowed. Refund of Rs.35,000/- paid by him for registration as member of Gym is declined. Reason being that he availed facilities for certain period and he could utilise the same for remaining period also.

 

18. The complainant has claimed Rs.5 lacs as compensation for mental agony. There are no details of the same. The same is restricted to Rs.2 lacs including cost of litigation.

 

19. To sum up, the OP is directed to pay Rs.14.64 lacs alongwith interest @12% per annum from the date of theft i.e. 19.05.2015 till date of payment.

 

20. A copy of this order be sent to both the parties free of cost as per rule.

 

21. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

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