MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellant/complainant against the order, dated 3.3.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 1336 of 2009 vide which, it dismissed the complaint. 

2.         Briefly stated, the facts of the case, are that the complainant being the owner of scooter make Kinetic Honda bearing registration No. HR-03-B.9493, which she parked in the parking lot of Neelam Cinema being run by OP No.2 (now respondent No.2) vide parking slip No. 5013 dated 15.1.2009. It was stated that when the complainant came back after visiting the office, she found that her scooter was missing. She informed OP No.2 regarding the theft of her scooter. The complainant alongwith OP No.2 made best efforts to search the scooter, but the same could not be traced.  The complainant contacted the Police and got registered FIR No. 26 dated 23.1.2009. It was further stated that the vehicle was hypothecated with the State Bank of India and after making all the payments, she became the owner of the said vehicle. It was further stated that the untraced report had not been received till date. It was further stated that the OP No.2 failed to safeguard the vehicle of the complainant. It was further stated that the abovesaid act of the OPs, amounted to deficiency, in service. Hence, the complaint was filed.

3.         None appeared on behalf of the OP No.2, despite service. Hence, OP No.2 was proceeded against ex-parte. 

4.         Reply was filed by OP No.1, wherein, it was stated that the complaint against the answering OP was not maintainable, as it had given the parking lot on licencee to OP No.2, who was running the same. It was further stated that as per the amended terms & conditions of paid parking area w.e.f. 19.3.2008, issued by the Municipal Corporation (Licensor), Chandigarh, in case of theft of a vehicle, the licencee would be responsible. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OP.

5.         The parties led evidence, in support of their case.

6.       The learned District Forum, dismissed the complaint, in the manner, referred to, in the opening para of the order.  

7.            Aggrieved by the order, passed by the learned District Forum, the appellant/complainant, has filed the instant appeal. 

8.         We have heard Sh.Arun Dhir, Advocate, proxy for Ms.Smriti Dhir, Advocate for respondent No.1 and, have perused the record, carefully.

9.       None is present on behalf of appellant/complainant to argue the case. Only Sh.Aman Dhir, Advocate, proxy for Ms.Smriti Dhir, Advocate for the respondent/OP No.1 appeared and contended that OP No.1 was not negligent in the matter as the licencee i.e. OP No.2 was solely responsible for the loss of the vehicle parked in the parking lot. It was further contended that OP No.2 was the licencee of OP No.1 at the relevant time. It was further stated that, as per amended terms & conditions of paid parking area w.e.f. 19.3.2008, issued by the Municipal Corporation (Licensor), Chandigarh, in case of theft of a vehicle, the licencee was to be responsible for the theft of vehicle from parking area.

10.       From the facts of the case, it is evident that the complainant parked his scooter vide slip No. 5013 in the parking area of Neelam Cinema, Sector 17, Chandigarh on 15.1.2009 being run by OP No.2 and when she came back to get back the same, during the designated parking hours, the same was found stolen there-from. Thus OP No.2 was negligent in properly safeguarding the scooter of the complainant. Had he taken proper precautions, the scooter would not have been stolen. Had the contractor, after getting the slip back, which was issued at the time of parking, then nobody else would have taken the scooter, except the complainant, who was in possession of the original slip. As per the amended terms and condition No.23 of the paid parking areas w.e.f. 19.3.2008 “The licencee shall be responsible for theft(s) of vehicle(s) from parking areas. But, thelicencee shall not be liable for theft of any article(s) kept in the vehicle or for damage caused to the vehicle(s) while parked in the parking area. The contractor shall not be held responsible for any theft/damage to the vehicle before and after parking hours, even though the parking token was issued.”  OP No.2 was, thus, deficient, in rendering service.

11.            Admittedly, the scooter of the complainant was insured for a sum of Rs.9,000/- (Annexure C-1) and the complainant could very easily recover the insured amount, as the Insurance Company, is liable to indemnify the loss occurred on account of the theft of scooter of the complainant. It is evident from the impugned order that at the time of arguments, the Counsel for the complainant admitted that the scooter, in question, was insured with the National Insurance Co. for a sum of Rs.9,000/-. C-1 is a copy of the Insurance Policy of the scooter. No averment was made by the complainant, in the complaint, that the scooter was insured with the aforesaid Insurance Company or that she had been indemnified for the loss thereof, by the said Company. Under these circumstances, it can be presumed that she might have been indemnified for the loss of the scooter by the Insurance Company. If such an indemnification for the loss, has not been made, by the Insurance Company, the appellant may file the claim and it shall be for the Insurance Company to decide the same. In these circumstances, the appellant cannot be granted compensation for the loss of the scooter.

12.            However, it may be stated here, that the complainant suffered a lot of physical harassment and mental agony, on account of the loss of the scooter. Under these circumstances, the complainant, was deprived of the use of the vehicle. In the absence of scooter, she must have hired any other vehicle, for going to any place, in the city and coming back to her house. This must have added to her miseries. The District Forum did not take into consideration, this aspect of the matter. The District Forum was, thus, wrong in dismissing the complaint as a whole. The complainant was certainly entitled to compensation, for physical harassment and mental agony, suffered by her, on account of the aforesaid act and conduct of OP No.2. The order of the District Forum, to this extent, being illegal is liable to be set aside.

13.       With the foregoing discussion, the appeal filed by the complainant is allowed and OP No.2 is directed to pay a sum of Rs.2500/-, as compensation, in lumpsum, to the complainant, for causing physical harassment and mental agony, within 30 days, from the date of receipt of a copy                                       of the order. In case, OP No.2 did not pay the aforesaid amount, within 30 days, from the date of receipt of a copy of this order, then the aforesaid amount shall be paid with interest @ 8% p.a. from the date of order till realization. It is further directed that in case, OP No.2 failed to pay the aforesaid amount then OP No.1 i.e. Municipal Corporation is directed to pay the same from the security, if any, deposited by the OP No.2, with OP No.1, at the time of taking the contract.

13.       The parties are left to bear their own costs.

14.            Copies of this order be sent to the parties, free of charge.