Karnataka

StateCommission

A/1522/2013

M/s. Axis Fortification Pvt. Ltd. - Complainant(s)

Versus

Swarn Kamal, S/o. N.K. Verma - Opp.Party(s)

H.G. Lakshmana Gowda

27 Sep 2023

ORDER

                                                                    Date of Filing : 30.09.2013

  Date of Disposal : 27.09.2023

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

 

DATED: 27.09.2023

 

PRESENT

HON’BLE Mr JUSTICE HULUVADI G RAMESH : PRESIDENT

 

Mr KRISHNAMURTHY BSANGANNANAVAR: JUDICIAL MEMBER

 

Mrs DIVYASHREE M:LADY MEMBER

 

 

APPEAL No.1522/2013

 

 

M/s Axis Fortification Private Limited

Having office at

No.570, Sri Sai Tower

3^rd Floor, HMT Layout

HMT 2^nd Block

Vidhyaranyapura Main Road

Bangalore-560 097                                                             Appellant

 

(By Mr. H.G.Lakshmana Gowda, Advocate)

 

-Versus-

 

1. Sri Swarn Kamal

    S/o Sri N.K. Verma

    Aged about 36 years

    No.315, Jyothi Clique Apartments

    4^th Cross, Abhya Reddy Layout

    Kaggadasapura Main Road

    C.V.Raman Nagar

    Bangalore-560 093

  

    (By Mr.Ajay J.N. Advocate)

 

2. H.C.G Bangalore Institute of Oncology

    HCG Towers

    No.8, P.Kalinga Rao Road

    Sampangiram Nagar

    Bangalore-560 027                                                    Respondents

   

    (By Mr Manjunath B.K Advocate)

                                                     

 

 

: ORDER :

 

Mr JUSTICE HULUVADI G RAMESH : PRESIDENT

 

1.       This is an Appeal filed under Section 15 of Consumer Protection Act 1986, by OP2 aggrieved by the Order dated 05.09.2013 passed in Complaint No.1518/2012 on the file of I Additional District Consumer Disputes Redressal Forum, Bengaluru (for short, the District Forum).

 

2.       Heard the Arguments of the Learned Counsel for Respondent No.1. None appeared for Appellant and Respondent No.2.  Taking into consideration of the vintage of the case, taken up the matter to decide the case on merits

3.       The District Forum after enquiring into the matter, allowed the Complaint in part and directed the OPs to pay compensation of Rs.1,50,000/- to the Complainant along with interest at the rate of 12% per annum from 21.05.2012 till realisation within 30 days from the date of the order.  Further directed the OPs to pay Rs.2,000/- to the complainant towards cost of the litigation.

 4.      Aggrieved by this Order, OP2 is in Appeal inter-alia, contending amongst other grounds that, it is the security agency employed by the Respondent No.2 & it managed the security services at the Hospital premises and not managed the car parking facilities.   Hence, he is not responsible to make any joint or several liabilities to the theft of the car, the car parking was free and he had not collected any car parking fee.  Further it is pleaded that insurance company is not the party in the complaint since the insurance company is the necessary & proper party to the compliant, but the District Forum decided the case without the involvement of the insurance company and fact relating to their defense.   Further pleaded that there was no commitment of custody of the car as it is clearly displayed on the Notice Board that the ‘Car parking is at owner’s risk’ and the Appellant is working under H.C.G Bangalore Institute of Oncology/Respondent No.2 hence, he is not liable to satisfy any such claim and thus seeks to set aside the impugned order by allowing the Appeal.

 

5.       Perused the Impugned Order, grounds of Appeal and records of District Forum.

6.       Admittedly, the Complainant/Respondent No.1 herein is the owner of a Maruthi Swift Car bearing registration No.CH 03 V 3464. OP1/Respondent No.2 herein is a reputed cancer hospital at Bengaluru. OP2/ Appellant herein is a security Agency employed by OP1 for supervising and managing of the vehicles of the clients of of the hospital who are visiting for managing their medical requirements. Complainant’s mother-in-law was admitted in the OP1’s hospital for treatment of cancer and on 21.05.2012, the complainant visited the hospital for attending his mother-in-law and he had travelled by using his Maruti Swift Car, which he parked in the hospital parking area, which is managed by the OP No.2 and to ensure no inconvenience caused to any other person visiting the hospital, he had handed over the keys of the car to OP No.2 and he moved into the hospital for seeing his mother-in-law. After little time, he came down to take certain things kept in the car, he observed that his car was missing from the area where he had parked the car. On enquiring with the OP2, to whom he had entrusted the ticket for the purpose of retrieval of the car, he responded that the car cannot be located and has been stolen.  Thereafter, the complainant along with OP2 visited the jurisdictional police station and lodged a complaint, thereafter the jurisdictional police conveyed that whereabouts of the missing car is not traceable. 

7.       The stand taken by the OP1 that the personnel of the security agency neither will take the custody of the car to park at an appropriate parking space not act as a custodian of such car.  It is only that, the personnel of the security agency will be custodian of the keys and hand over the same upon production of parking ticket to them.  Hence, he is not liable to pay such damages.

8.       While OP2 taken a stand that on 21.05.2012 complainant visited the hospital and when he needed to retrieve some article from his car, at this juncture he found that the car was not traceable are all false and incorrect.  The complainant saw the car being driven out, stopped the driver and took his bag from the car. The complainant allowed the car to be driven away and thereafter, he came with the counterfoil of ticket when it was noticed that the person who drove the car had produced a counterfoil which bear the correct registration number of the car, but was of a different serial number and denies that when the complainant car cannot be located and has been stolen.

9.       On perusal of the records of the District Forum, particularly the affidavit evidence of the complainant it is seen that in Para 15, he avers that ‘I submit that the car’s insured value was  Rs.1,72,659/-.  I submit that even if the insurance company were to honour my claim, it will pay the said sum at the most.  I submit that the said sum hardly compensates me for the loss suffered by me and I will not be able to buy the same car in the said amount’.    Further on perusal of the additional affidavit evidence of the complainant it is seen that in Para 3, he had avers that ‘the car is insured with the New India Assurance Co. Ltd., and the policy bearing No.67020231100100001108.  The insurance policy is a third party protection as mandated by the Motor Vehicles Act and theft is not covered under the insurance.  During my meeting with the Insurance Company’s personnel regarding the processing of the claim, they have indicated that the maximum payable amount is Rs.1,50,000/- for the loss of the car under the contract of insurance.   Further in Para 4, he avers that ‘it is respectfully prayed that the District Forum be pleased to deduct Rs.1,50,000/- from the total compensation of Rs.9,25,000/- as claimed in the complaint filed by me’.

10.     It is the bounden duty of the Security Agency employed by OP1 for the security of the vehicles of his clients visiting for their various medical requirements and the security is honour bound to take care of the vehicles parked in all sense of the word, for which purpose he acknowledges the parking by issuing a token. Further the car in question is of 2006 model and the value of the car according to the complainant is Rs.5,11,567/-.  In this regard, on perusal of the policy document annexed to the affidavit evidence of the complainant wherein it is observed that name of the insured owner is Mr.Swarn Kamal; model of the car Maruti Suz/Swift VXI; policy was issued by New India Assurance Co. Ltd., covering the period 12.00.00 am of 31.01.2012 to 11.59.59 pm of 30.01.2013 and the IDV of car is Rs.1,72,659/-.

11.     Thus in view of forgoing observation, though the complainant lodged the complaint with the police, the car was not traced, the District Forum after giving depreciation for 6 years and also deducting the amount entitled to be received from the Insurer of the Complainant,  awarded Rs.1,50,000/- with interest at the rate of 12% per annum from 21.05.2012 till realisation as compensation and litigation cost of Rs.2,000/- to the complainant is just and proper and the same does not call for any interference by this Commission.   Accordingly, Appeal is dismissed with no order as to costs.

12.     The Statutory Deposit in this Appeal is directed to be transferred to the District Commission for further needful.

 

13.     Return the LCR forthwith.

 

14.     Send a copy of this Order to the District Commission as well as to the parties concerned, immediately.

 

 

Lady Member                   Judicial Member                     President

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