IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 12th day of March, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.111/07 Between: Eapen Cheiran, S/o. Late P.E. Cherian, Perumpral House, Vennikulam. P.O. (By Adv. P. Hariharan Nair) ..... Complainant And: - The Senior Divisional Commercial Manager,
Southern Railway, Thiruvananthapuram. (By Adv. George Koshy) - Mr. A. Ashok,
Ashok Bhavan, Thonnalloor, Pandalam. (By Adv. Asha Cherian) ..... Opposite parties. O R D E R Sri. Jacob Stephen (President): The complainant had filed this complaint for getting a relief from the Forum. 2. The complainant’s case is that he is the owner of a 1997 model Suzuki Samurai Motor Cycle bearing Reg.No.KL-3D-2541. The 1st opposite party is the Senior Divisional Commercial Manager of Southern Railway and the 2nd opposite party is the vehicle parking area contractor in Thiruvalla Railway Station. On 5.5.07 at about 2 p.m. the complainant entrusted his motorcycle to the 2nd opposite party after giving parking fees of Rs.3/- and after getting the parking token and he went to Ernakulam. On return on the very same day evening he approached the 2nd opposite party for taking his motorcycle. But the said motorcycle is found missing. Immediately the matter was informed to the Thiruvalla Railway Station Superintendent, Railway Protection Force and Thiruvalla Police Station. Thiruvalla police registered a crime as Crime No.310/07 for the said incident and investigation stated. But so far the vehicle was not traced out thereby the complainant had lost his motor cycle worth Rs.10,000/-. 3. The 2nd opposite party is the authorized parking contractor of the 1st opposite party and the 2nd opposite party is responsible for the safe custody of the motorcycle parked with him. So both parties are liable to compensate the complainant. Thereafter, the complainant approached the opposite parties for getting the compensation for the loss of his vehicle but there is no response. Therefore, the complainant caused legal notice on 26.7.07 to both opposite parties for getting compensation for the loss of the motorcycle. Opposite parties received the notice but no response. 4. The non-giving of the compensation to the complainant by the opposite parties is a clear deficiency of service which caused financial loss and mental agony to the complainant. Hence this complaint for an order directing the opposite parties to pay an amount of Rs.15,000/- as compensation for the loss of the vehicle and for the mental agony and cost of these proceedings with future interest at the rate of 12% per annum. 5. Both opposite parties filed separate versions. The main contentions of the 1st opposite party is as follows:- The complainant had no contractual relationship between the 1st opposite party and the 1st opposite party has not collected any parking fees from the complainant and hence they are not liable to the complainant. The 2nd opposite party is a contractor who collects parking fee from those who park the vehicles at the parking area based on a contract executed between the 1st and 2nd opposite parties. As per the terms and conditions of the contract 2nd opposite party shall be solely responsible for the safe custody of the vehicles parked with him and for any loss and damages caused to any vehicle in his custody and he shall indemnify the 1st opposite party against all claims in respect of any loss caused to any vehicle in his custody. So the liability, if any, in this case clearly rests with the 2nd opposite party. The ownership of the vehicle in question and alleged theft etc. should be proved by the complainant. Therefore, there is no deficiency in service from their part. With the above contentions, they pray for the dismissal of the complaint with their cost. 6. The main contentions of the 2nd opposite party is as follows:- The 2nd opposite party is unaware of the alleged theft of the complainant’s motor cycle from the parking area of the 2nd opposite party. The complainant had not reported the matter to the 2nd opposite party or his employees. On receiving a notice from this Forum, the 2nd opposite party enquired into the matter and revealed that the complainant is a regular passenger and he is familiar with the staff of the 2nd opposite party and as such he had taken the vehicle from the parking area on 5.5.07 without handing over the receipt. The complainant never approached the 2nd opposite party in this connection. If the allegation is true it might have been from some other place and not from Thiruvalla Railway Station parking area. 2nd opposite party has not committed any deficiency and they are not liable to the complainant. With the above contentions, 2nd opposite party also prays for the dismissal of the complaint with their cost. 7. On the basis of the above pleadings, the only question to be considered is whether this complaint can be allowed or not? 8. In order to prove the complainant’s case, the complainant filed a proof affidavit along with certain documents. On the basis of the proof affidavit complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A10(a). PW1 was cross-examined by the counsel for the 1st opposite party. Ext.A1 is the vehicle sale agreement dated 1.2.07 in respect of the purchase of the complainant’s lost vehicle. Ext.A2 is the R.C.Book of the complainant’s vehicle. Ext.A3 is the parking token dated 5.5.07 issued by the 2nd opposite party. Ext.A4 is the photocopy of FIR and FIS in Crime No.310/07 of Thiruvalla police in respect of the theft of the complainant’s motorcycle. Ext.A5 is the copy of the registered letter dated 7.6.06 sent by the complainant to the 1st opposite party. Ext.A6 is the postal receipt of Ext.A5 and Ext.A7 is the acknowledgment card of Ext.A5. Ext.A8 is the copy of the advocate notice dated 26.7.07 issued to the opposite parties. Ext.A9 and A9(a) are the postal receipts of Ext.A8. Ext.A10 and A10(a) are the acknowledgment cards of Ext.A8. 9. In order to prove the contentions of the 1st opposite party, the authorised representative of the 1st opposite party filed a proof affidavit along with one document. On the basis of the proof affidavit, he was examined as DW1 and the document produced by DW1 is marked as Ext.B1. Ext.B1 is the photocopy of the agreement dated 31.10.02 executed between the 1st and 2nd opposite parties for the leasing of the parking space at Thiruvalla Railway Station of the 1st opposite party to the 2nd opposite party for 5 years from 30.7.02 to 29.7.07. DW1 was cross-examined by the counsel for the complainant. 2nd opposite party has not adduced any oral or documentary evidence or even cross-examined the witnesses for substantiating his contentions. After closure of evidence, both sides were heard. 10. On the basis of the contentions of the parties we have perused the materials on record. As per Ext.B1 agreement, the 2nd opposite party is the authorized licensee of the parking area of Thiruvalla Railway Station from 30.7.02 to 29.7.07. As per Ext.A3, the 2nd opposite party had collected Rs.3/- on 5.5.07 at 2 p.m. for providing space for parking two-wheeler either at the parking area of Aluva or Thiruvalla Railway station. Since the marking of Ext.A3 was not objected by the 2nd opposite party and from the facts and circumstances it can be presumed that this receipt was issued by the 2nd opposite party to the complainant for parking the complainant’s motorcycle at Thiruvalla Railway Station. The possession of Ext.A3 is still with the complainant which shows that the vehicle entrusted by the complainant with the 2nd opposite party vide Ext.A3 is not returned so far. Ext.A4 police record shows that there is a complaint of theft of the two wheeler owned by the complainant. But in the absence of a final report in the alleged theft case, the theft of the vehicle could not be confirmed. However, it is an undisputed fact that the two-wheeler entrusted to the 2nd opposite party by the complainant vide Ext.A3 is not returned so far. The 2nd opposite party also has not proved before the Forum that he had returned the complainant’s vehicle. The non-return of the vehicle parked with the 2nd opposite party is a clear deficiency in service. 11. As per the terms and conditions of Ext.B1 agreement executed between the 1st and 2nd opposite parties, the 1st opposite party is not responsible to the complainant and the 2nd opposite party is solely responsible to the complainant, which is mentioned in Clause 6(ii) and 12(iii) of Ext.B1 agreement. This aspect is not challenged by the complainant. So we find no deficiency against the 1st opposite party. As per Ext.A1 and A2, though he is not the registered owner of the lost vehicle, the complainant is the owner in possession of the lost vehicle. In the circumstances, the 2nd opposite party is liable to make good the loss of the complainant for the deficiency of service committed by the 2nd opposite party. Therefore, this complaint can be allowed against the 2nd opposite party with cost and compensation to the complainant. 12. In the result, the complaint is allowed thereby the 2nd opposite party is directed to pay an amount of Rs.10,000/- (Rupees Ten Thousand only) to the complainant as the cost of the vehicle along with compensation of Rs.2,000/- (Rupees Two Thousand only) and cost of Rs.1,000/- (Rupees One Thousand only) to the complainant within 30 days from the date of receipt of this order failing which the complainant is allowed to realise the aforesaid amounts with 9% interest per annum from today till the whole realisation. Declared in the Open Forum on this the 12th day of March, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Eapen Cherian Exhibits marked on the side of the complainant: A1 : Sale agreement dated 1.2.07 in respect of the purchase of the complainant’s lost vehicle. A2 : R.C.Book of the complainant’s vehicle. A3 : Parking token dated 5.5.07 issued by the 2nd opposite party. A4 : Photocopy of FIR and FIS of Crime No.310/07 of Thiruvalla police. A5 : Photocopy of the registered letter dated 7.6.06 sent by the complainant to the 1st opposite party. A6 : Postal receipt of Ext.A5 A7 : Acknowledgment card of Ext.A5. A8 : Carbon copy of the advocate notice dated 26.7.07 issued by the complainant to the opposite parties. A9 & A9(a) : Postal receipts of Ext.A8. A10 & A10(a) : Postal acknowledgment cards of Ext.A8. Witness examined on the side of the opposite parties: DW1 : Byju.N.P. Exhibits marked on the side of the opposite parties: B1 : Photocopy of the agreement dated 31.10.02 executed by the 1st and 2nd opposite parties. (By Order) Senior Superintendent. Copy to:- (1) Eapen Cheiran, Perumpral House, Vennikulam. P.O. (2) The Senior Divisional Commercial Manager, Southern Railway, Thiruvananthapuram. (3) Mr. A. Ashok, Ashok Bhavan, Thonnalloor, Pandalam. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
