Tamil Nadu

North Chennai

105/2014

M.RajeshKumar,S/o.Late.Muthu, - Complainant(s)

Versus

Sri.Arjun,S/o.Nataraj naidu(Contractor),NMD Colony - Opp.Party(s)

M/s.M.Muthukumaran

22 Jul 2016

ORDER

                                                            Complaint presented on:  03.06.2014

                                                                Order pronounced on:  15.09.2016

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 15^th    DAY OF SEPTEMBER 2016

 

C.C.NO.105/2014

 

M.Rajesh Kumar,

Son of Late Mr.Muthu,

No.28, Bajanai Koil Street,

Peirya Kavanam Post,

Ponneri, Chennai – 601 204.

                                                                                    ….. Complainant

 

..Vs..

1. Sri. Arjun,

Son of Mr. Natraj Naidu,

Contractor (Vehicle Parking)

NMD Colony, D/32, Pandian Street,

Arumbakkam,

Chennai – 600 106.

 

2. M/s. Fun World & Resorts India (Pvt) Ltd.,

Represented by its Managing Director,

Sri. Vinod Kumar Sabharwal,

Palace Grounds (Opp TV Tower),

JC Nagar,

Bangalore – 560 006.

 

3.The Secretary,

Tamil Nadu Tourism Development Corporation Ltd.,

‘Tamil Nadu Tourism Complex’

Wallajah Road,

Chennai 600 002.

.....Opposite Parties

Date of complaint                                 : 05.06.2014

Counsel for Complainant                      : M/s.N.Muthukumaran

Counsel for  1^st Opposite party                : Ex –parte

 

Counsel for 2^nd Opposite Party                      : M/s. Sree sun Associates

 

Counsel for 3^rd Opposite Party                       : M/s. A.Vijayakumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant along with his two friends visited Tamilnadu Government Tourist Fair at Island grounds on 09.02.2014 organized by the 3^rd opposite party.  The 3rd opposite party allotted the contract to the 2^nd opposite party to organize the fair and accordingly he did it.  The Complainant parked his Royal Enfield motor bike bearing Registration No.TN -18- F- 9586 in the fair.  He purchased fair entry ticket at Rs.15/- per person and also paid Rs.20/- for parking his motor cycle.  The said bike is valued at Rs.1,06,043/-.  Around 8.00 p.m to return his home he went to pick his bike and found that it was missing.  The employees at the parking slot gave negligent answer when he questioned missing of the vehicle.  The Complainant gave a complaint at D1 police station and FIR was registered in crime No.147/2014 on 10.02.2014 under section 379 I.P.C.  The 3^rd opposite party being the controller have failed to impose any condition to the 2^nd opposite party being the principal contractor for organizing the fair who had given sub-contract to the 1^st opposite party for managing the parking lot.  Therefore the 2^nd & 3^rd opposite parties are liable for the incident for the negligent of the sub-contractor/1^st opposite party.  The Complainant sent legal notice dated 18.03.2014 and subsequently on 15.04.2014 to the 2^nd opposite party. The 2^nd opposite party on receipt of notice replied him that the 1^st opposite party is the sub-contractor for maintenance of vehicle stand and he had also paid Rs.35,00,000/- for the said contractor.  Clause 11 of the agreement clearly stated that the responsibility loss of the vehicle fully vested with the 1^st opposite party. The negligent act of the 1^st opposite party amounts to unfair trade practice and deficiency in service. Hence the Complainant filed this complaint to pass an order to pay a sum of Rs.1,00,000/- towards value of the bike and also to pay a sum of Rs.1,00,000/- for compensation towards negligence and mental agony with cost of the complaint. 

2. WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY IN BRIEF:

           The 2^nd Opposite Party is the organizer of the 40^th India Tourist and Industrial Fair 2014, held at islands Grounds at Chennai and conducting the same for many years without any default and deficiency. The 2^nd Opposite Party is no way connected for the loss and not at all responsible to the Complainant for the alleged theft of his motor cycle in the said fair. It is pertinent to mention that as per the Memorandum of Agreement dated 30.01.2014 the 2^nd Opposite Party company sub-let the contract of parking to the 1^st Opposite Party and as per the clause No: 11 of the said agreement which runs as follows:

          “11. And whereas the second party shall be responsible for any loss/theft of helmets/vehicles and accessories and first party is not liable in any manner.”

As per the said clause 2^nd Opposite Party Company is no way responsible for the alleged missing of vehicle as claimed by the Complainant herein. As seen on the receipt of the legal notice from the Complainant, the 2^nd Opposite Party have forwarded the details and related documents and conveyed him the copy of the said memorandum of Agreement to the Complainant herein and he filed the same along with his Complaint as document. In the instant case the Complainant never lodged the Complaint to the nearby police station immediately on the occurrence of alleged theft in a very suspicious manner he lodged the Complaint of theft only on the next day i.e on 10.02.2014 at around 11.00 a.m. No reason was adduced by him for the said delay of lodging the Complaint to the competent authorities. The Complainant never produced the Insurance Certificate of the said vehicle and in order to defame the 2^nd Opposite Party’s company name and fame he chose this alleged theft of vehicle parked in the parking area is totally a false one. The Complainant never filed the report of the police authorities in this regard. The Complaint is liable to be dismissed for following reasons and also in the interest of justice.

1. For suppression of materials facts.
2. For misleading the Hon’ble  Forum
3. For abusing the court process.
4. For no submission of insurance certificate of the alleged missing vehicle.
5. For non submission of status report of the police authorities with costs.

3. WRITTEN VERSION OF THE 3^rd  OPPOSITE PARTY IN BRIEF:

          It is submitted that the Tamil Nadu Tourism Development Corporation Ltd.(TTDC Ltd.,) has organized the 40^th India Tourist and Industrial Fair 2014 at Island Grounds. Chennai – 600 009 for 70 days through the Private event manager of M/s. Fun World and Resorts India (PVT) Ltd., Bangalore – 560 006. The matter of missing of Royal Enfield Motor Bike Classic 350 CC UCE bearing Engine No.U3SCOBEO70760 Chasis No.ME3U3S5CO BEO 70760 and registration TN 18 F 9586 was not brought to the notice of the Manager (Fair) TTDC Ltd., at Island Grounds, Chennai – 600 009. Further, it is submitted that Thiru M.Rajesh Kumar, the Complainant herein has not made any Complaint at the Fair Administrative office at Island Grounds, Chennai – 600 009 on 09.02.2014.  The TTDC Ltd. will not be liable, being the principal contractor and the organizer of the Fair for the acts of the 1^st & 2^nd Opposite Parties, as per the agreement deed made with the 2^nd Opposite Party.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

5. POINT NO :1

          It is an admitted fact that the 3^rd opposite party corporation allotted the contract to the 2^nd opposite party to organize the Tamilnadu Government Tourist Fair and accordingly he organized in the Island ground in 2014 and on 09.02.2014 the Complainant went to the Fair in his Royal Enfield motor bike bearing No. TN- 18- F- 9586 and Ex.A1 is the registration certificate of the vehicle and he purchased entry Fair ticket of Rs.15/- and also parked his vehicle and obtained Ex.A2 receipt on payment of Rs.20/- for parking the vehicle at 5.10 p.m. and at about 8.00 p.m. he went to pick up the vehicle it was not found and when he questioned the employee in the parking slot, he gave negligent answer and thereafter on the next day the Complainant gave a complaint about the theft of the vehicle at D1 police station and on the basis of the complaint Ex.A3 was registered.

          6. The Complainant issued legal notice Ex.A9 to the 2^nd opposite party and the same was received by him under Ex.A10. The 2^nd opposite party sent Ex.A11 mail including memorandum of the agreement entered between the 2^nd opposite party and the 1^st opposite party.  The 2^nd opposite party stated in his reply that he gave the sub-contract for the parking of the vehicle to the 1^st opposite party and if any loss/theft of the vehicle the 1^st opposite party is only liable.  The memorandum entered between the 1^st opposite party and the 2^nd opposite party clearly reveals that the 1^st opposite party paid sub-contract amount of Rs.35,00,000/- to the 2^nd opposite party. Further as per the memorandum of agreement clause 11, the 1^st opposite party shall be responsible for any loss/theft of helmet/vehicle and accessories and the 1^st opposite party is not liable in any manner.  Therefore, as per the agreement in respect of the parking of the vehicle if any loss or theft of the vehicle, the 1^st opposite party contractor is only liable.  The case in hand the Complainant vehicle was lost or committed theft when the vehicle is in the custody of the 1^st opposite party. Therefore, we hold that the 1^st opposite party has  not taken care to protect the vehicle of the Complainant, inspite of that he had paid Rs.20/- as parking fare under Ex.A2, we hold that the 1^st opposite party has committed  deficiency in service. 

          7. The 2^nd opposite party is only a organizer of the trade fair and he gave sub-contract to the 1^st opposite party for parking the vehicle and the 2^nd opposite party is the principal contractor from the 1^st opposite party.  Since Ex.A11 memorandum of agreement clearly involves the 1^st opposite party only liable we hold that the 2^nd &3^rd opposite parties have not committed any deficiency in service. 

8. POINT NO :2

          The Complainant estimated that the bike value is at Rs.1,06,043/-. The Complainant pleaded in the complaint that he had purchased the vehicle on 07.07.2011. Nearly after Two and half years the vehicle was committed theft. However, the Complainant had not filed insurance of the vehicle to know the IDV value of the vehicle.  Therefore what could be the exact value of the vehicle on the date of theft of the vehicle, definite evidence is not available?  Considering that the vehicle was purchased in the year 2011 and he used the vehicle for more than two and half years we feel that, it would be appropriate to fix the value of the vehicle would be Rs.50,000/- and for the same the Complainant is entitled from the 1^st opposite party.  The Complainant suffered with mental agony due to loss of vehicle is accepted and in view of the same, it would be appropriate to order a sum of Rs.25,000/- towards compensation for mental agony, besides a sum of Rs.5000/- towards litigation expenses. The complaint in respect of the 2^nd & 3^rd opposite party is liable to be dismissed.     

     In the result the complaint is partly allowed. The 1^st opposite party is ordered to refund a sum of Rs.50,000/- (Rupees fifty thousand only)towards the cost of the vehicle to the Complainant and also to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amounts shall be payable to the complainant within 6 weeks from the date of receipt of the copy of this order, failing which the amounts shall carry 9%  interest till the date of payment. The Complaint in respect of the 2^nd & 3^rd Opposite Party is dismissed.

         Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 15^th day of September 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 08.06.2011                   Vehicle Registration Certificate

Ex.A2 dated 09.02.2014                   Parking Vehicle Ticket

Ex.A3 dated 10.02.2014                   FIR

Ex.A4 dated 18.03.2014                   Legal Notice

Ex.A5 dated 20.03.2014                   Returned cover

Ex.A6 dated 20.03.2014                   Acknowledgement Card

Ex.A7 dated 01.04.2014                   RTI Letter

Ex.A8 dated 03.04.2014                   Reply from Public Information Officer

Ex.A9 dated 15.04.2014                   Legal Notice

Ex.A10 dated 19.04.2014                 Acknowledgement Card

Ex.A11 dated 22.04.2014                 Reply e-mail from the 2^nd Opposite Party

Ex.A12 dated 26.04.2014                 Legal Notice

Ex.A13 dated 29.04.2014                 Returned Cover

Ex.A13 dated 05.05.2014                 Legal Notice through courier and returned cover

LIST OF DOCUMENTS FILED BY THE  2^nd OPPOSITE PARTY :

Ex.B1 dated 30.01.2014                   Memorandum of Agreement

LIST OF DOCUMENTS FILED BY THE  3^rd  OPPOSITE PARTY :

                                                ……NIL ……

                                     

MEMBER – II                                                               PRESIDENT