BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No  : 1510 of 2009

Date of Institution :  22.12.2009

Date of  Decision   :  02.02.2011

Subhash Kumar son of Sh. Ved Prakash, H.No.26, Police Colony, Chandigarh.

….…Complainant

V E R S U S

[1]  Sh. Bhagat Ram, Contractor of Cycle/ Scooter Stand at ISBT, Sector 43 (24 Hours Service) Paid Parking, resident of House No. 68, Vijay Nagar, Jullandhar (Panjab).

[2]     Chandigarh Transport Undertaking, through its Divisional Manager, Industrial Area, Phase-I, Chandigarh.

[3]  The Oriental Insurance Co. Ltd., Regional Office: SCO No. 109-110-111, Surendra Building, Sector 17-D, Chandigarh – 160017, through its Regional Manager.

                         ..…Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

SH.ASHOK RAJ BHANDARI            MEMBER

          MRS.MADHU MUTNEJA              MEMBER

PRESENT: Sh. Deepak Aggarwal, Adv. for Complainant.

           Sh. Harmanjit Singh, Adv. for OP No.1.

     None for OP No.2.

         Sh. K.S. Bhangu, Adv. for OP No.3.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant, who owned a Bajaj Pulsar 180 CC motorcycle bearing Regn. No. CH-04-J-4308, with Colour Ebony Black (Metallic) costing Rs.61,580/- parked the same on 27.08.2009 at around 12.45 PM in the parking of OP No.1, against proper receipt [Annexure C-3] and thereafter, boarded the bus from ISBT Sector 43, Chandigarh to go to village Sarthali (District Ropar). To his utter surprise, on the next day i.e. 28.08.2009, when he reached the parking area to take back his motorcycle, the same was not there and despite putting his best efforts, he could not find the said motorcycle. It was alleged that the motorcycle was stolen from the said parking area due to negligence and dereliction of duty on the part of OP No.1. Immediately, the matter was brought to the notice of Police Authorities and the OP No.3. It was further alleged that the OP No.1 had indulged in unfair trade practice by charging Rs.10/- for full day from each customer/ general public, whereas as per the rate contract, he was entitled to charge only Rs.6/- for full day. Hence, the present complaint has been filed, alleging the above act of OP as gross deficiency in service and unfair trade practice and claiming the payment of Rs.61,580/- as the total price of the motorcycle, Rs.1.00 lakh as compensation for harassment and mental agony & Rs.11,000/- as litigation costs etc.

2]      Notice of the complaint was sent to OPs seeking their version of the case.

3]      OP No.1 in his written statement/ reply, while admitting the factual matrix of the case/reply, pleaded that he had been performing his duties diligently since January, 2009 and there was no complaint of theft, damage etc. whatsoever against him till date. It was submitted that on receipt [Annexure C-3], the number of motor cycle CH-04-J-4308, allegedly having been stolen from the parking lot of OP No.1, was not clear. The allegation with respect to charging of more than the approved rates, has also been refuted by the OP. It was asserted that as per terms and conditions of the parking, the OP was not liable for any theft, damage etc. of the vehicle parked in the parking area and if any harm had taken place, then the concerned Insurance Company of the vehicle was liable to pay compensation. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with heavy costs.

4]      OP No.2 in its written statement/ reply, pleaded that the Complainant had no locus standi to file the complaint against the answering OP. Site of the Cycle/ Scooter Stand was allotted to OP No.1 under the contract. All the terms and conditions were also reduced in writing. A license was also given to the Contractor and as per contract/ agreement, the licensee was wholly liable for any damage, loss, any unwanted act or any injury caused to any one. Since the Complainant did not make any complaint or any report in respect to the issue involved to the answering OP, it was not liable at all for any unwanted or any uncalled for act. Rest of the contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with costs.

5]      Parties led evidence in support of their contentions.

6]      Since none appeared for the OP No.2 on 02.02.2011, therefore, we proceed to dispose of this complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the one of the OPs [OP No.2].

7]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs No.1 and 3. We also heard the arguments put forth by the learned counsel for the parties. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having parked his Bajaj Pulsar 180 CC Motorcycle bearing Regn. No. CH-04-J-4308 with colour Ebony Black (Metallic) costing Rs.61,580/- at the parking place of OP No. 1 on 27.08.2009 and that the motorcycle in question was stolen from the said parking site, have all been admitted. It is also a fact that the Complainant brought the matter to the notice of OP No.1, who is the main party in this case, as well as OP No. 2, which is primarily a proforma party. In addition, the Complainant also informed OP No. 3, which is the Insurance Company, who had comprehensively insured the motorcycle in question for the relevant period of time. Since the Complainant could not retrieve his motorcycle on the subsequent day i.e. 28.8.2009 from the parking area, he took up the matter with OP No. 1 and has alleged deficiency on its part, claiming the full amount of the motorcycle i.e. Rs.61,580/-, Rs.1.00 lakh as compensation and Rs.11,000/- as litigation costs as OP No. 1 refused to oblige the Complainant to pay up the said amounts. This has led to the present complaint.

ii] OP No.1, in its written statement/ reply while admitting the factual matrix of the case, has pleaded that the parking receipt [Annexure C-3] submitted by the Complainant with the Motorcycle No. CH-04-J-4308 is not clear. Further it has also rebutted the allegations of the Complainant in respect of over charging of the parking fee i.e. Rs.10/- instead of Rs.6/-. It has further pleaded that it was not liable for making payments for any theft or damage of the vehicle parked in the parking area and that for any kind of harm/ damage or loss, only the concerned Insurance Company was liable to pay the compensation. On this ground, it has prayed for the dismissal of the complaint with heavy costs. 

iii] OP NO. 2 in its written statement/ reply has pleaded that the Cycle/Scooter Stand was allotted to OP No. 1 under a Contract and all the terms and conditions were reduced in writing. Under the licence granted to the Contractor, the licensee i.e. OP No. 1 was wholly liable for any damage, loss or any unwanted act or injury caused to anyone.  It has further stated that the Complainant has not made any complaint to this OP and, therefore, it was not liable to pay any amount to the Complainant as there is no deficiency of service on its part and on this ground, it has prayed for the dismissal of the complaint.

iv] On a close and detailed study of the entire case, we find that so far as OP No. 1 is concerned, its liability to make good the loss suffered by the Complainant is already there in the license document under Condition No. 31 of the Contract signed between OP No. 1 and OP No. 2. Therefore, OP No. 1 cannot wriggle out of its commitment to safeguard the motorcycle parked by the Complainant in its parking area. Since admittedly, the motorcycle in question has been stolen from the parking area owned by OP No.1 by and large, OP No. 1 is bound to pay to the Complainant for the loss suffered by him.

v]  So far as OP No.2 is concerned, it is only a Licensing Authority, which has given the parking licence to OP No. 1 for the parking area and has also prescribed the parking fee. In addition, a contract has been signed between the parties, giving details of the terms and conditions of the contract. Under these terms and conditions (Clause 31), the liability for any loss, damage or injury suffered by the users of the parking area solely lies with the licensee and not the licensor. Here we are fortified by an authoritative ruling of the Hon’ble National Commission in the case “The Mysore Dasara Exhibition Authority Versus S.B. Manikya Rajy & Another”, reported as 2006 (2) CLT 330, wherein it was held as under:-

“………….the licensor would not be liable to pay any compensation to the Complainant. The sole liability rests with 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. In the result, the Revision Petition is partly allowed. The Petitioner is not liable to pay any amount as compensation to the Complainant and the sole liability is that of Respondent No. 2 the Contractor. There shall be no order as to costs.”

    Therefore, in view of the above, in the present case, there is no liability for payment on the part of OP No. 2 and as such, the present complaint qua OP No.2 is dismissed.

vi] It has been pleaded in the complaint that the vehicle in question has been comprehensively insured by the Complainant with OP No. 3, which is, therefore, a necessary party. As such, in case of any loss, injury or damage, it is the primary responsibility of the OP No. 3 to make good the loss. This plea has also been taken by OP No.1. However, the Complainant has not disclosed as to whether he has filed any claim with OP No. 3 or that he had received any claim from OP No.3 or not. OP No.3 has also not given any such information.

Vii] It is a well settled law that if at all the contractor/ licensee has to make good the loss suffered by the person, who has used the parking facility in its parking lot, the amount in question may only be the difference between the total amount claimed by the Complainant and sum already paid by the Insurance Company. It is not known to this Forum as to what was the total amount of the claim preferred by the Complainant for the theft of the motorcycle with OP No. 3 and out of which how much has since been paid by OP No. 3 to him. In the absence of this essential information, it is not possible to pass any order in respect of allowing the payment of the balance amount to the Complainant by OP No.1. It is an established rule that in order of priority, it is the Insurance Company first, which has to make the payment for the insurance claim, as rightly pointed out by OP No. 1 and it is only subsequently, if any amount remains unpaid, that the Parking Contractor may be obliged to pay the same, if otherwise admissible. Any such figure for the balance amount has neither been supplied by the Complainant nor by OP No. 3 - Insurance Company and hence, no relief could be allowed to the Complainant in respect of the same.

8]      Keeping in view the above details of the case, in our considered opinion, there is no merit, weight or substance in the present complaint. It is also lacking in some absolutely essential and relevant information which was required to be given to this Forum to enable it to pass any order. Therefore, in the absence of the requisite details, appropriate data and as per case law cited on the subject, the Complainant has no case at all. In view of all this, the present complaint cannot succeed in favour of the Complainant and against the OPs and we order accordingly. We dismiss the complaint. However, the respective parties shall bear their own costs.

9]     Certified copy of this order be communicated to the respective parties, free of any charge. After compliance, file be consigned to record room.

Announced

02.02.2011

Sd/-

                                (LAKSHMAN SHARMA)

MEMBER

Sd/-

                                (ASHOK RAJ BHANDARI)

MEMBER

     Sd/-

(MADHU MUTNEJA)

MEMBER