COMPLAINT FILED: 02.01.2010<br /> DISPOSED ON: 29.04.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 29TH APRIL 2010<br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.11/2010<br /> <br /> COMPLAINANT Mohammed Nasrulla,<br /> S/o Mohammed Saifulla,<br /> Aged about 21 years,<br /> R/at No.10, 2nd Cross,<br /> Shamanna Garden, <br /> Pipeline,<br /> Bangalore – 560 026. <br /> <br /> Advocate: Sri. J.A. Rafee<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. The Proprietor, <br /> Apsara Theatre,<br /> Kalasipalya,<br /> Bangalore – 560 002.<br /> <br /> 2. The Manager,<br /> The Oriental Insurance <br /> Company Limited,<br /> Do-10, # 213-217,<br /> Nagaprabha Chambers,<br /> III Main, 4th Cross,<br /> Chamarajpet,<br /> Bangalore – 560 018. <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> This is a complaint filed U/s 12 of CP Act 1986, by the complainant, seeking direction against the Opposite Party-1 and 2 (herein after called as O.Ps) to pay Rs.40,000/- towards the insurance amount of the vehicle and Rs.20,000/- towards mental agony, hardship along with interest at 18% p.a. and costs on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. The brief averments made in this complaint are as fallows: <br /> <br /> Complainant being absolute owner of the vehicle being TVS Star City Two Wheeler bearing chassis No.MD625KF5462B08932, Engine No.AF5A61151600, 2006 Model, Black Colour, vide Registration No.KA-04 EN-9672; insured the same with OP-2 under the policy No.423000/31/2008/15832 dated 19.03.2008 by paying the necessary amount. Copy of the RC book and insurance policy are produced. Complainant on 02.11.2008 along with his friend Mr. Aleem went to the theatre of the OP-1 to view a movie at 8-30 pm and parked the said vehicle in the parking place of the theatre belonging to the OP-1. Parking person issued receipt by collecting parking fee of Rs.5/-. After seeing the movie complainant along with his friend returned to the parking place to pickup the vehicle, but was surprised that the said vehicle was missing from the parking place, he searched everywhere, but the said vehicle was not traced. Having no alternative complainant lodged complaint before Police; Kalasipalyam Police registered the Cr. No.198/2008 U/s 379 of IPC against the unknown accused persons for committing theft of the vehicle. Copies of the theatre tickets, parking fee receipt, complaint, FIR are herewith produced. Kalasipalyam Police after investigation failed to trace the vehicle belonging to the complainant and submitted ‘C’ report and copy of ‘C’ report is produced. Complainant approached OP-1 and 2; they failed to give any amount to the complainant. Having no other alternative on 31.11.2009 complainant caused legal notice to OP-1 and 2 requesting them to pay the vehicle amount within a stipulated period. Inspite of service of notice OP-1 and 2 failed to settle the insurance amount of the vehicle. Complainant is put to untold misery, mental agony and hardship due to the theft of the vehicle. Under these circumstances complainant felt deficiency in service on the part of the OP. Hence filed this complaint for the necessary reliefs. <br /> <br /> 3. On registration of the complaint notices were sent to OP-1 and 2. Inspite of service of notice OP-1 and 2 remained absent without any sufficient reason or cause. Hence OPs-1 and 2 are placed ex-parte. <br /> <br /> 4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copies of the vehicle insurance certificate, policy schedule, RC book, voters ID, reply of OP-2, DL, FIR, complaint, ‘C’ report of the police, film ticket 2 numbers issued by OP-1, parking fees receipt, notice to the complainant by police, copy of the legal notice, RPAD receipts. <br /> <br /> 5. It is contended by the complainant that he being a RC owner of the vehicle TVS Star City Two wheeler bearing chassis No.MD625KF5462B08932, Engine No.AF5A61151600, 2006 Model, Black Colour, vide registration No.KA-04 EN-9672; insured the same with OP-2 for a sum of Rs.1,00,000/- under the policy No.423000/31/2008/15832 dated 19.03.2008. The policy is valid from 19.03.2008 to mid night 18.03.2009. On 02.11.2008 complainant along with his friend Mr. Aleem went to Apsara theatre to view a movie at 8-30 p.m. after parking vehicle in the parking place. The film tickets and the receipt issued by parking in-charge person is produced. After seeing the movie complainant along with his friend returned to the parking place found that vehicle was missing from the parking place. Complainant searched everywhere but unable to trace the vehicle, complainant lodged the police complaint. Kalasipalyam Police registered Cr No.198/08 U/s 379 of IPC against the unknown accused persons. After investigation police submitted ‘C’ report the copy of the FIR, complaint, ‘C’ report are produced. Complainant made a claim before OP-1 and 2. OP-2 has given reply to the complainant stating they are unable to consider the claim of the complainant since the vehicle was parked in the parking lot at the custody of the cinema theatre. Complainant may file case against the theatre owner and closed the file as no claim. Copy of the said letter is produced. OP-1 and 2 has not given any response to the legal notice dated 24.11.2009. Hence complainant is before us. <br /> <br /> 6. We have perused complaint averments unchallenged, complainant’s affidavit evidence. The documents produced by the complainant corroborates the case of the complainant. The complainant is the RC owner of the TVS Star City two wheeler. The said vehicle is insured with OP-2 policy is in force from 19.03.2008 to mid night 19.03.2009. On 02.11.2008 when the complainant was seeing the movie at OP-1 theatre, vehicle parked at parking lot of OP-1 was missing. Kalasipalyam police also investigated the crime and filed ‘C’ report. As per the terms of the insurance policy OP-2 is liable to honour the claim of the complainant. Repudiation of the claim of the complainant by OP-2 amounts to deficiency in service on its part. OP-2 was not justified in asking the complainant to approach OP-1. For no fault complainant was made to suffer both mental agony and financial loss. <br /> <br /> 7. OP-1 having issued parking fees receipt for Rs.5/- to the complainant towards parking of the vehicle, cannot escape from the liability, though there is a condition; on the receipt that they are not responsible for any loss, damage or theft of the vehicle parked. These conditions are one sided and not enforceable and binding on the complainant. There is a clear negligence on the part of the staff of the OP-1 proprietor / lessor. OP-1 being the proprietor of the theatre is responsible for the negligent acts of its staff. As per Section 2(d)(g) of the CP Act there is a deficiency in service on the part of the OP-1. We are satisfied that complainant is able to prove the deficiency in service on the part of the OP-1 and 2. From the very fact of OP-1 and 2 remaining ex-parte; inference can be drawn that OP-1 and 2 admits all the allegations made by the complainant in toto. Under these circumstances we are of the considered view that OP-2 is liable to pay the I.D. value of insured vehicle being Rs.28,333/- and litigation cost of Rs.2,000/- to the complainant and OP-1 to pay compensation of Rs.5,000/- to the complainant. Repudiation of the claim of the complainant by OP-1 and 2 is unjust and improper. Accordingly we proceed to pass the following: <br /> <br /> <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP-1 is directed to pay compensation of Rs.5,000/- to the complainant. OP-2 is directed to settle the claim of the complainant for a sum of Rs.28,333/- and to pay litigation cost of Rs.2,000/- to the complainant within 30 days from the date of communication of this order. Failing which complainant is entitled to claim interest at 12% p.a. on the said amount from the date of complaint till the date of realization. Further it is ordered that the rights of the OP-2 are kept open to take possession of the said vehicle in question if traced and to proceed ahead with disposal of the same as contemplated. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 29th day of April 2010.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm<br />