Andhra Pradesh

Chittoor-II at triputi

CC/64/2019

B.Ramakrishna, S/o B.Venkatapathi - Complainant(s)

Versus

M/s Pantaloons, Rep. by its authorized signatory - Opp.Party(s)

National Association of Consumers (NAC)

12 Mar 2020

ORDER

                                                                                                              Filing Date: 12-06-2019                    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.64/2019

Between

Sri.B. Ramakrishna,

Aged about 45 years,

S/o. B. Venakatapathi,

Residing at Flat No.201,

Venkata Sai Residency,

Non – Teaching Colony,

Vidyanagar,

TIRUPATI – 517502.                                                                        ... Complainant

 

And

1. M/s. Pantaloons,

Represented by its authorized signatory,

BNR Mall, 19-4-9/6, STV Nagar,

AIR By Pass Road, Near TVS Show Room,

TIRUPATI – 517501.

 

2. 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, National Association of Consumers (NAC) president, counsel for the complainant and Sri.V.Sunil Kumar, counsel for the opposite party No.2, and opposite party No.1 is remained exparte 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 05.03.2019, 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 05.03.2019, the complainant along with his friend Mr.Sarath Kumar went to BNR Mall on two wheeler bearing registration No.AP13 AD 8554 with an intention to buy dresses in Pantaloons 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.18557 and invoice No.SM02-01-8557. 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 friend went into the Pantaloons Show room and purchased dresses worth of Rs.419.30/- vide invoice No. P31500118007356 dt: 05.03.2019 and came out. 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/multiplexes should provide free parking place for the vehicles of the visitors/customers without charging any parking fee from them. On 22.02.2019, in the case between V.Shyam Sunder Vs PVR multiplex, Vijayawada, the Hon’ble Krishna District Consumer Forum-II has relieved the public from the burden of paying parking fee in all multiplexes and malls. In this case opposite parties 1 and 2 have violated the Government rules and judgment of Hon’ble High Court of Andhra Pradesh directions by collecting parking charges which amounts to unfair trade practice. He got issued two notices to opposite parties 1 and 2 dt: 06.03.2019 for which the 2^nd opposite party had given an irresponsible reply through their counsel vide reply notice dt: 25.03.2019 which was received by complainant on 29.03.2019. It is therefore prayed to allow the complaint.

           3.Opposite party No.1 remained exparte opposite party No.2 filed written version contending 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 2^nd opposite party cannot conclude that, complainant had come to the mall for the purpose of purchasing dresses in the Pantaloons 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. 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 owners of the commercial complex. 

          4. 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 2^nd opposite party i.e. BNR Infrastructure Projects Pvt. Ltd., is only providing parking facility to persons who are visiting the mall which is a commercial complex. 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 2^nd 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 therein. The complainant is not a consumer in so far as the opposite party No.2 is concerned. The 2^nd 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 2^nd 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 where as in this matter 2^nd opposite party is not the owner of the commercial complex. It is therefore prayed to dismiss the complaint.

           5. The complainant filed chief evidence affidavit as PW-I and got marked Ex:A1 to A6. 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  as RW-1 but no documents are executed.

          6. 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?

          7. Point:- In  the written arguments the complainant argued that, he along with his friend purchased dresses worth of Rs.419.30/- vide Ex:A2 on 05.03.2019 in Pantaloons 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 25.03.2019 which was served on him on 29.03.2019 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.

         8. Opposite party No.2 had filed written arguments contending that 2^nd 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 premises owner namely M/s. BNR Infrastructure Projects Pvt. Ltd.,. There is no proof to show that the complainant along with his friend purchased clothes from Pantaloons show room by parking his two wheeler bearing No.AP13 AD 8554. 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 2^nd opposite party and the complainant. The complainant is not consumer of the 2^nd 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.

         9. The opposite party No.2 counsel placed reliance on several citations which are as follows:-

            i) The second opposite party relied upon decision of APSCDRC reported in CDJ 2011 APSCDRC Page 48 between Mittapally Govardhan Vs Manchala Rajeswari & Others wherein it was held that:- “Despite repeated contentions that the complaint was bad for non-joinder of necessary parties viz., either not impleading partners or directors the complainant did not take any steps to implead them”. The contention of opposite party No.2 is that the owner of the building was not impleded by the complainant despite bringing the fact to the notice of the complainant.

               In support of that contention the above decision was referred by the opposite party No.2. But we are of the opinion that the said citation may not be applicable to the facts of the present case on hand.

           ii) Another decision reported in CDJ 1998 SC 1033 of Hon’ble Supreme Court of India between Marine Container Services South Private Limited Vs Go Go Garments wherein it was held as follows:-   We are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all, litigants before the Commission under the Consumer Protection Act included. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and, if the facts found support him, his defense based thereon cannot be brushed away.

           iii) 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.

             iv) 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.

          10.The complainant filed Ex:A2 tax invoice in order to show that he had purchased dresses on 05.03.2019 from Pantaloons Show room 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”.

          11. 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 version filed by opposite party No.2 we are convinced that opposite party No.2 collected parking fee in violation of Government rules and judgment of Hon’ble of High Court of Andhra Pradesh. According to opposite party No.2, they are only agent and the owner of the Mall is 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 collecting parking fee from the customers who are coming to the Mall for purchasing goods.

         12. 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 Pantaloons 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/-.

          13. 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 12^th day of March, 2020.

            Sd/-                                                                                                             Sd/-

   Lady Member                                                                                           President (FAC)

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sri B. Ramakrishna (Chief affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Mrs. D. Khandimaddi (Chief affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	PARKING TOKEN (No:18557) issued by the Second Opposite Party (Computer generated copy in original). Dt: 05.03.2019.
	TAX INVOICE issued by the First Opposite Party (Original). Dt: 05.03.2019.
	Notice sent to the opposite parties (Office Copy). Dt: 06.03.2019.
	Postal Acknowledgement Card (Original).
	Reply Notice to your Notice Dt: 06.03.2019 sent by the second opposite party (Office Copy). Dt: 25.03.2019.
	Govt. of AP information obtained under RTI Act, 2005 (Photo copy). Dt: 10.01.2018.

 

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.