By Sri. MOHANDASAN.K, PRESIDENT
1.Complaint in short is as follows: -
The complainant herein is running an education Institution. As part of his job, he
had to travel to Ernakulum on 12/03/2019 from Kuttippuram Railway Station and the complainant had parked his Bullet bike numbered KL 54/J-7780 in the pay and park ground of second opposite party. After his work when the complainant reached back at Kuttippuram pay and park ground the complainant found that his bike was missing. After making earnest effort the complainant could not trace his bike and thus the complainant preferred a complaint before Kuttippuram Police on 15/03/2019 and Kuttippuram Police registered FIR which is numbered as 75/2019 and after investigation the Kuttippuram police filed final report stating that they could not trace out the bike.
2. Thus, due to the negligent act of the opposite parties, the complainant had suffered loss, injury, harassment, and mental agony. The complainant entitled compensation for the defective service of the opposite parties. The opposite parties are liable for breach of contract as it has not complied with the terms as it is guaranteed by the opposite parties and have acted extremely negligent in attending the complaint of the complainant and is therefore both opposite parties are liable to compensate the complainant for the loss and injuries caused. The opposite parties committed deficiency in service towards the complainant. Hence the complainant prays for Rs. 5,00,000/-as compensation and Rs. 10,000/- as the cost of the proceedings.
3. On admission of the complaint notice was issued to the opposite parties and on receipt of notice the opposite parties entered appearance and filed version denying the entire allegations in the complaint.
4. The first opposite party submitted that the averment in the complaint that the
Complaint is running an educational institution, that as part of his job he had to travel to Ernakulum on 12/03/2019 from Kuttipppuram Railway Station, that after his work when the complainant reached back at Kuttippuram pay and park ground the complainant found that his bike was missing, that after making earnest effort the complainant could not trace his bike, that due to negligent act of the opposite parties, the complainant had suffered loss and injury, harassment and mental agony, that for which the complainant is entitled for compensation, the opposite parties are liable for breach of contract as it has not complied with the terms as guaranteed by the opposite parties and have acted extremely negligent in attending the complaint of the complainant, that both parties are liable to compensate the complainant for the loss and injuries caused, that opposite parties committed deficiency in service to the complainant, that cause of action for the complaint arouse on 12/03/2019 that opposite parties are liable to pay an amount of Rs. 5,00,000/- towards compensation and Rs. 10,000/- towards cost, are all false and hence denied by the first opposite party.
6. The opposite party submitted that, the first opposite party is not known that the complainant had parked his bullet bike numbered as KL-54/J-7780 in the pay and park ground of second opposite party.
7. The first opposite party further submitted that as per Para 23 of the agreement dated 24/01/2019 made between the President of Union of India and opposite party No.2 herein, clearly stipulates that opposite party No.2 herein shall be solely responsible for safe custody of vehicle parked with him and for any loss, damage caused to/ of any vehicle in his custody. Para 23 read as follows:” the licensee / licensees shall be solely responsible for safe custody of vehicles parked with him /them and for any loss or damage caused to /of any vehicles in his /their custody and shall indemnify the administration against all claims /demands /action in respect of any loss or damage caused of / to any vehicles in his /their custody , and against injury /loss to life in the course of delivering the service and caused if any paid will be recovered from the SD/EMD and the licensee shall re coupe the SD/EMD as fixed earlier”. Para 24 of the said agreement states that “the contractor shall also indemnify and save harmless the railway, from and against, all actions. Suite, proceedings, losses, costs, damages, claims, and demands of every nature and description brought or recovered against the Railways by reason of any act or omission of the Contractor, his / her agents, or employees, in the execution of the services/works wherever applicable or in his/her guarding of the same. All sums payable by way of compensation under any of these conditions shall be considered as reasonable compensation to be applied to the actual loss or damage sustained, and whether or not any damage shall have been sustained.
8. The first opposite party further contented that there is no cause of action for this and so the Forum have no jurisdiction to try this compliant. It is further submitted that there is absolutely no evidence to show that the alleged damages caused to the complainant and no evidence has been produced to substantive the alleged damages either before the Railway authorities or before the Forum. The attempt of the complainant is to enrich himself at the cost of exchequer. The opposite parties submitted that to redress the grievance of the passengers Railway has various grievance redressal measures available at Divisional and at Headquarters level. The complainant herein has neither intimated nor exhausted those remedial measures available at various levels. The compensation claimed is without any basis. Hence the submission of the opposite parties is that there is no deficiency in service on the part of the first opposite party and the railway is not liable to pay any amount as compensation to the complainant and the complaint is liable to be dismissed against the first opposite party.
9. The second opposite party filed version denying the averments in the complaint contending they are false, fabricated and without any basis. According to the second opposite party complaint is not maintainable either in law or fact against the second opposite party. The complaint is filed with malafide intentions, with view to gain monitoring benefits from the second opposite party.
10. The second opposite party submitted that this is pure case of theft by unknown person which is revealed by the complaint himself. The opposite party denied the version of the complainant that he enquired with the staff at duty at Kuttippurram Railway station and the same was recorded by the SI of Kuttippuram Police. It is further submitted that the theft was committed on 12/03/2019 and the complaint was preferred before the Investigation officer only on 15/03/2019, which is suspicious. It is further submitted that the complainant has not impleaded the insurance company as an opposite party in this complaint. It is contended that a case already been filed before the JFCM Court Tirur and so the complainant cannot approach another court for the remedy of the same purpose and so it is double jeopardy. The submission of the opposite party is that a complainant cannot sue the one and same party for the same crime twice. It is further submitted the issue involved is a criminal nature and which cannot be question before consumer Forum and that too committed by an unknown person. The criminal act is dealt with the police and so Consumer dispute redressal forum has no jurisdiction over criminal action committed by unknown person. The opposite party further submitted that it is duty of the insurance company to compensate the loss occurred due to theft. The second opposite party is not liable to compensate the complainant as prayed in the complaint. The compensation claimed by the complainant is made with malafide intention, with a view to gain monitory benefits. The contention of the opposite party is that there is no negligence occurred from the part of any of the staff working with pay and park, Kuttipppuram took place. The Consumer Dispute Redressal Forum has no jurisdiction to take cognisance on theft. There is no deficiency in service, no wilful negligence on the part of second opposite party. The second opposite party submitted that they are not liable to pay Rs. 5,00,000/- towards compensation and Rs. 10,000/- towards the cost of the proceedings. The prayer is to dismiss the complaint with cost to the second opposite party.
11. The complainant and opposite party filed affidavits and documents. The documents on the side of complainant marked as Ext. A1 to A8. No document is produced on the side of opposite parties. Ext. A1 is copy of FIR in crime No.75/2019 Kuttippuram Police station dated 15/03/2019. Ext. A2 is copy of final report submitted by the Kuttippuram Police station in crime No. 75/2019 u/s 379 IPC case dated 02/01/2020. Ext. A3 copy of referral notice nil dated. Ext. A4 is copy of receipt issued by licensee S. Veluswamy dated 12/03/2019. Ext. A5 is copy of train tickets from Ernakulum to Kuttippuram and Kuttippuram to Ernamkulam. Ext. A6 is the copy of registration certificate of vehicle No. KL-54-J-7780. Ext. A7 is copy of driving license No.54/2158/2002 dated 03/03/2014. Ext. A8 is copy of insurance
policy with policy No. 411700/31/2019/ABRE/48551 valid from 27/09/2018 to
26/09/2019.
12. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:
1. Whether there is deficiency in service on the part of the opposite parties
2. Reliefs and cost.
13.Point No. 1 and 2
The case of the complainant is that, he entrusted his motor bike KL-54J-7780 with the second opposite party on 12/03/2019. The second opposite party is a licensee of pay and parking at Kuttippuram railway station , Malappuram. While the complainant approached, it was found his bike has been missed. Then he preferred a complaint before a Kuttipuram police on 15/03/2019 and the police registered FIR as 75/2019. Now the complainant prays for the compensation from the opposite parties. The first opposite party stated that they are not responsible for the grievance of the complainant and the sole responsibility if at all , it is rested with the second opposite party as per the agreement executed between the first and second opposite parties. But the first opposite party did not produce agreement before the Commission.
13. The second opposite party contented that since there is a complaint before the Police as a theft case and the matter is pending before magistrate court, the consumer forum has no jurisdiction to the entertain the complaint also alleges the principle of double jeopardy. But it is evident that the complainant approached the consumer disputes redressal for getting compensation for the loss sustained to him on account of deficiency in service committed by the opposite parties. The complaint before the police is not for getting compensation for his loss. So, there is no merit at all in the contention of the second opposite party.
14. The perusal of documents, it appears that the police have closed the complaint and filed final report as per Ext. A2 stating that to treat the complaint as undetectable. The complainant was issued referral notice Ext. A3. The complainant had insured the vehicle as per Ext. A8 and he is entitled insured amount of Rs. 1,08,244/- as per Ext.A8. But the theft was happened on 12/03/2019 and the undetectable report has been filed by police only on 04/01/2020. So, the complainant lost his motor bike on 12/03/2019 and the same was reported as undetectable after 10 months. Of course, the insurance company is liable to compensate the complainant, but only after closing the police complaint. Hence during this 10 month, the complainant was in trouble and he was compelled to avail alternative facilities for his travel purpose.
15. In addition to that the complainant submitted that he purchased the vehicle through his hard-earned money. The market value of the motor bike is the IDV assessed at the time of availing insurance policy which the insurance company is liable to pay to the complainant. The complainant is entitled a reasonable amount towards the inconvenience and hardships suffered by the complainant for the period of loss of vehicle and till receiving the insured amount from the insurance company and we consider it as Rs. 1,00,000/-. We also find the complainant is entitled an amount of Rs. 5,000/- as the cost of the proceedings.
16. The affidavit and documents show that the complainant duly entrusted the vehicle to the second opposite party. But due to carelessness and due to defective service theft was happened while the vehicle was in custody of the second opposite party. It is the duty of the second opposite party to keep the vehicle safely till the complainant takes back the vehicle. So, there is gross deficiency in service on the part of the second opposite party in the matter and he is liable to compensate the complainant. But the second opposite party is a contractor working under the first opposite party and so the first opposite party is also liable to compensate the complainant. The first opposite party has not produced the agreement between the first and second opposite party. Hence, we find the opposite parties are liable to compensate the complainant as stated above. The complaint stands allowed as follows:
The opposite parties are directed to pay Rs. 1,00,000/-(Rupees One lakh only) to the complainant on account of inconvenience and hardships suffered by the complainant in the matter.
The opposite parties are also directed to pay Rs. 5000/- (Rupees Five thousand only) as the cost of the proceedings.
The opposite parties are directed comply this order within one month from the date of receipt of copy of this order, failing which the compensation and cost will carry interest @9 % per annum from the date of this order till realization.
Dated this 20thday of March, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant :Nil
Documents marked on the side of the complainant : Ext.A1to A8
Ext. A1 : Copy of FIR in crime No.75/2019 Kuttippuram Police station dated
15/03/2019.
Ext. A2 : Copy of final report submitted by the Kuttippuram Police station in crime
No. 75/2019 under section 379 IPC case dated 02/01/2020.
Ext. A3 : Copy of referral notice nil dated.
Ext. A4 : Copy of receipt issued by licensee S. Velu Swamy dated 12/03/2019.
Ext. A5 : Copy of train tickets from Ernakulum to Kuttippuram and Kuttippuram to
Ernamkulam.
Ext. A6 : Copy of registration certificate of vehicle No. KL-54-J-7780.
Ext. A7 : Copy of driving license No.54/2158/2002 dated 03/03/2014.
Ext. A8 : Copy of insurance policy with policy No. 411700/31/2019/ABRE/48551 valid
from 27/09/2018 to 26/09/2019.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
