DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:354 of 2010] Date of Institution : 03.06.2010 Date of Decision : 05.10.2011 --------------------------------------- Sh. Shashi Kant Wadhawan son of Sh. Satpal Wadhawan resident of House No.114, Sector 10, Chandigarh. ---Complainant. V E R S U S 1. Sh. Sanjeev Kumar, Contractor of Parking opposite K.F.C. Sector 8, Chandigarh (Resident of House No.1797, Manimajra, U.T., Chandigarh). 2. Municipal Corporation through its Commissioner, U.T., Chandigarh, Municipal Corporation Building, Sector 17, Chandigarh. ---Opposite Parties. BEFORE: SHRI LAKSHMAN SHARMA PRESI DENT SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Baljeet Singh, Advocate for the complainant. Sh. Atul Sharma, Advocate for OP No.1. Sh. Rajesh Sood, Advocate for OP No.2. PER LAKSHMAN SHARMA, PRESIDENT Sh. Shashi Kant Wadhawan has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein for the following reliefs:- i) To pay a sum of Rs.66,000/- being the difference in the Insured Declared Value of the car and the amount proposed to be paid by the Insurance Company; ii) To pay a sum of Rs.34,000/- as cost of accessories; iii) To pay a sum of Rs.25,000/- as cost of the kit bag; iv) To pay a sum of Rs.50,000/- as compensation for mental agony and harassment; v) To pay a sum of Rs.80,000/- on account of difference of value of car and the purchase price; vi) To pay a sum of Rs.25,000/- as costs of litigation. vii) To pay any other relief, which the Forum deems fit. 2. In brief, the case of the complainant is that he was owner of car bearing Regd. No.CH-04-A-1470 (Maruti Swift). The said car was insured with Bharti Axa General Insurance Company Limited vide Policy (Annexure C-11) for the period 07.12.2009 to 06.12.2010. The Insured Declared Value of the said vehicle was Rs.4,25,000/-. According to the complainant, on 07.03.2010, he had parked his car in the parking lot of Sector 8, Chandigarh where the complainant along with his family member had gone for a meal at K.F.C. Restaurant, Sector 8, Chandigarh. According to the complainant, the said parking lot has been allotted to OP No.1 (Contractor) by OP No.2 – Municipal Corporation. The complainant paid parking fees to OP No.1, who issued parking slip (Annexure C-2) to the complainant. It has further been averred that after having meal, when the complainant returned to the parking lot, he found his car missing. He immediately contacted the employees of OP No.1 at the parking lot but they refused to divulge any information or to help the complainant in any way. Having no other alternative, the complainant reported the matter to the police and F.I.R. No.47 dated 7.3.2010 was registered with Police Station, Sector 3, Chandigarh. It has further been pleaded that after the car was insured, the complainant got affixed the following accessories in the car, which were not covered by the insurance policy: - (a) Alloys wheels Rs.15,000-00 (b) Car Stereo, Central Locking, Gear Lock. Rs.19,745-00 It is also the case of the complainant that at the time of theft, a kit containing 2 tennis rackets, one track suit of Adidas Company, Skipping rope and a pair of tennis shoes of Adidas Company were lying in it, which were also stolen along with the car. According to the complainant, though the Insured Declared Value of the car was paid to him by the Insurance Company, he has not been paid the price of the wheel alloys, car stereo, central locking and gear lock and the kit containing the items mentioned above. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the reply filed by OP No.1, it has denied all the allegations made in the complaint and pleaded that no document has been placed before the Forum to prove that the complainant had ever visited the tennis ground in Sector 10. According to OP No.1, there is no mention of wheel alloys, stereo or tennis kit in the F.I.R. So, the averments to this effect in the complaint are afterthought. According to OP No.1, Para 23 of the terms and conditions of the agreement is not applicable in the present case. It has been pleaded that the complainant has not purchased another new vehicle in lieu of the lost vehicle. According to OP No.1, Bill (Annexure C-7) is procured document as it bears the date 18.01.2010 and the vehicle was purchased by the complainant on 15.03.2010. So, the above said bill does not pertain to any item affixed in the said car. According to OP, as the loss caused to the complainant has been duly indemnified by the insurance company. So, he is not liable to pay any compensation to the complainant. Thus, according to OP No.1, there is no deficiency on its part and the complaint deserves dismissal. 4. In the reply filed by OP No.2 – Municipal Corporation, it has been pleaded that the complainant is not a consumer qua the answering respondent and OP No.2 has nothing to do with the matter. The averments regard affixation of accessories and presence of tennis kit in the car have been denied. It has further been pleaded that as per the terms and conditions of the agreement arrived at between OP No.1 and OP No.2, it is not liable for the theft of the car from the parking lot. Thus, according to OP No.2, there is no deficiency on its part. So, the complaint qua it deserves dismissal. 5. We have heard the learned counsel for the parties and have gone through the documents on record. 6. Admittedly, the car of the complainant (i.e. Maruti Swift bearing Regd. No.CH-04-A-1470) was insured with Bharti Axa General Insurance Company Limited vide Policy (Annexure C-11) for a period from 07.12.2009 to 06.12.2010 and the Insured Declared Value of the said vehicle was Rs.4,25,000/-. Admittedly, the complainant has received the Insured Declared Value of the car. 7. It is proved from the Parking Slip (Annexure C-2) bearing No.008243 that the complainant had parked his car in the parking lot of Sector 8, Chandigarh. This parking slip also bears the vehicle number as ‘1470’ and the name of the contractor as ‘S. Kumar’. The complainant paid the parking fee of Rs.5, as mentioned on the slip itself. Therefore, the complainant is a consumer qua OP No.1. 8. Annexure C-3 is the copy of F.I.R No.47 dated 7.3.2010. It corroborates the version of the complainant to the effect that the car was stolen from the ‘Parking Near KFC, Sector 8, Chandigarh’. Otherwise also, OP No.1 has not specifically denied the factum of theft of the car from the parking area. So, from the material on record, it has dully been proved that the car mentioned above was stolen from the parking area mentioned above. 9. Clause 23 of the amended terms and conditions (Annexure C-6) executed between OP No.1 and OP No.2 relating to the paid parking areas w.e.f. 15.02.2010 reads as under:- “23. Theft of vehicles:- The licencee shall be responsible for theft(s) of vehicle(s) from parking areas. But the licencee 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.” 10. From the reading of the above clause, it is clearly established that as agreed between the OPs, the contractor is liable to make good the loss on account of theft of vehicle(s) from the parking area(s). 11. Reference may be made to the case of THE MYSORE DASARA EXHIBITION AUTHORITY Versus S.B. MANIKYA RAJU & ANR., reported as II (2006 ) CPJ 173 (NC). The Hon’ble National Commission held in Paras 8 to 10, interalia, as under: - “8. In the present case, the same would be the position. From the terms and conditions of the contract the contractor was required to ensure that no damages are caused to the vehicle kept in the parking plot and in the case of theft the contractor would be fully responsible. It is also specifically provided that the staff for the parking area should be employed by the contractor himself at his cost. Further, there is no evidence on record to indicate that the respondent Nos. 2 was acting on behalf of the petitioner or was their agent in any manner. There is no bailment of car to the petitioner, nor the possession of the car was given to the petitioner. Further, the contract was given by the petitioner to the respondent No.2 so that traffic can be regulated in a parking zone. 9. In this view of the matter, in our view, the petitioner would not be liable to pay any compensation to the complainant. The sole liability rests with the respondent No.2, Contractor. By a contract he was permitted to operate the parking lot and was in his charge throughout. He has undertaken to pay for the loss suffered by the consumer. 10. Further, the vehicle was insured, and by this time, it can be presumed that the insurance claim must have been settled, and, therefore, before executing the order, the District Forum would verify from the complainant whether any amount is received from the Insurance Company, if the claim is settled. If the amount is received, the respondent No.2, will be liable to reimburse only the balance amount, if any. For this purpose, complainant would file necessary affidavit.” 12. Admittedly, the complainant has received the I.D.V of the car from the Insurance Company. So, he has been duly indemnified for the loss of car. The complainant has claimed an amount of Rs.19,743/- on account of theft of the accessories i.e. car stereo, central locking and gear lock, fitted in the car and which were not covered under the insurance policy. He has placed on record copy of bill (Annexure C-7) vide which he purchased these items. This bill is dated 18.01.2010 i.e. prior to the purchase of the car, [which was purchased on 15.3.2010 vide Sale Certificate (Annexure C-5)]. So, this document does not relate to the stolen car. Even in the insurance cover note, there is no mention of these items. 13. Similarly, Annexure C-8 is Bill for the purchase of Lawn Tennis Racket and Kit Bag totaling worth Rs.21,500/-, dated 09.03.2010 whereas the vehicle in question was stolen on 07.03.2010. Therefore, the question of keeping these items in the car on the date of theft does not arise. Hence, the complainant has failed to prove that the accessories mentioned above were affixed with the car and the kit mentioned above was lying in the car. So, he is not entitled for indemnification of the loss due to the alleged theft of these articles. 14. In these circumstances, the only relief, which can be awarded to the complainant is the adequate compensation for the harassment, which he suffered on account of the theft of his vehicle from the parking lot of OPs. Thus, in our considered view, the complainant is entitled for Rs.20,000/- as compensation to be paid by OP No.1. 15. The complaint qua OP No.2 is liable to be dismissed as OP No.1 shall only be responsible for theft(s) of vehicle(s) from parking areasas per Condition No.23 reproduced above. Accordingly, the complaint qua OP No.2 is dismissed. 16. In view of the above findings, this complaint is allowed on qua OP No.1 (Contractor) with the following direction to OP No.1:- (i) to pay an amount of Rs.20,000/- to the complainant as compensation for harassment and mental agony suffered by him on account of theft of his vehicle from the parking area allotted to OP No.1. (ii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 17. This order be complied with by OP No.1 within 30 days from the date of receipt of its certified copy, failing which OP No.1 shall be liable to pay Rs.20,000/- to the complainant along with penal interest @18% p.a. from the dates of filing the complaint i.e.03.06.2010 till its realization besides payment of Rs.7,000/- as costs of litigation. 19. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 5th October, 2011. (LAKSHMAN SHARMA) PRESIDENT (JASWINDER SINGH SIDHU) MEMBER Ad/-
C.C.No.354 of 2010 Present: None. --- The case was reserved on 04.10.2011. As per the detailed order of even date recorded separately, this complaint has been allowed qua OP No.1 only and the same has been dismissed qua OP No.2. Announced. 05.10.2011 President Member
| | MR. JASWINDER SINGH SIDHU, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
