PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        By this complaint the Complainant has prayed for the reliefs against the Opposite Parties for recovery of Rs.2,32,723/- towards the damages of vehicle with interest @ 18% p.a., Rs.1,00,000/- as compensation for mental agony and Rs.30,000/- towards cost of the complaint.

2)        The case of the Complainant in short is as under –

             The Complainant is the owner of a Mercedes Car bearing Registration No.MH-04-BW-8722  and  it  was  insured  with  the  Opposite  Party  No.2  under the Policy No.0100207570. Opposite Party No.1 is a Company registered under the Companies Act, 1956 and it is engaged in the business of sale and service of the readymade garments and various kinds of apparels. Opposite Party No.1 also provides “Valet Parking” for the vehicle of their customers. Opposite Party No.1 take entire responsibility of parking and taking care of vehicle including security during the period commencing from arrival of the customer at the business place till the time the customer departs from the said place.

3)        According to the Complainant, on 24/10/2006 he visited the shop of Opposite Party No.1. The Complainant drove the vehicle in question upto the gate of Opposite Party No.1 and thereafter key of the said vehicle was handed over to the driver employed by Opposite Party No.1 to park the car as valet parking facility was provided by the Opposite Party No.1.  After handing over the key to the driver, the Complainant went inside the shop.  When Complainant was inside the shop, the driver of Opposite Party No.1 came and informed him that the car hits to a column of the basement parking.  The Complainant after verifying the spot of accident and damages of the vehicle in question informed the incident to the Manager of the shop and lodged report with the Police Station Gamdevi.  The accident was also informed to M/s. Auto Hanger Pvt. Ltd., Authorized Dealer of the car. The Auto Hanger took over possession of the damaged car for repairs.  The said accident was also reported to the Opposite Party No.2. On 26/10/2006 the Complainant sent letter to Opposite Party No.1 and informed that he reserves his right to claim the expenditure, if any, required over and above claims passed by Opposite Party No.2 for the loss caused to the vehicle in question by the driver of Opposite Party No.1.

4)        The further case of the Complainant is that, as per the invoice dtd.30/11/2006 and 05/12/2006 issued by Auto Hanger Authorized Dealer the cost of repair of damaged vehicle in question was Rs.6,18,847/-.  Opposite Party No.2 settled the claim of the Complainant to the tune of Rs.3,86,124/- and the said amount was paid to the Auto Hanger directly by Opposite Party No.2 on 02/08/2008.  The Complainant had made over payment to the Auto Hanger Rs.36,124/- and it was refunded by Auto Hanger to the  Complainant on 26/12/2008.  The Complainant had paid Rs.2,32,723/- from his personal account to meet the cost of repair of vehicle in question.  The Complainant had  demanded  the said amount Rs.2,32,723/- from Opposite Party No.1 by the letters dtd.02/02/2007 and 19/01/2009.  Opposite Party No.1 agreed to pay the said amount but refused to give the assurance in writing.  Lastly the Complainant called upon the Opposite Parties through letter dtd.02/07/2009 and demanded the said amount but in vain.  Hence, this complaint for the reliefs as mentioned in above para no.1.

5)        Opposite Party Nos.1 & 2 have resisted the claim by filing separate written statement.  The contention of Opposite Party Nos.1 & 2 is that, the alleged accident took place on 24/10/2006. The complaint has been filed on 12/03/2010. The complaint is barred by limitation under Sec.24-A of the Consumer Protection Act, 1986.

6)        The contention of Opposite Party No.1 is that, the Complainant had not visited showroom of Opposite Party No.1. The Complainant had not purchased any article from the showroom of Opposite Party No.1.  The showroom of Opposite Party No.1 is for sale of cloths and do not deal with vehicle parking for consideration.  Opposite Party No.1 had not promised any facility to the Complainant at any point of time.  The Complainant is not falling within the meaning of ‘Consumer’ as laid down under Sec.2(1)(d) of the Consumer Protection Act, 1986.  The Complainant had not hired any service from Opposite Party No.1 as there is no receipt, challan, bill for consideration of service.  The Complainant had not paid consideration for parking nor visited or purchased anything from the showroom of Opposite Party No.1.

7)        The further contention of Opposite Party No.1 is that there is parking space which is optional for the visitors and the visitors can voluntarily park their vehicle at their own risk, if they want to park their vehicle in the parking place for which the visitors are personally liable. Opposite Party No.2 is liable to pay the entire claim amount to the Complainant. The Complainant has wrongly joined Opposite Party No.1 in this complaint.

8)        The contention of Opposite Party No.2 is that the vehicle in question of the Complainant was surveyed by Mr. A.R. Momin, Surveyor duly licensed by IRDA as per the provision of Section 64 UM of the Insurance Act, 1938.  The said Surveyor had assessed the liability of Opposite Party No.2 under the terms of the policy at Rs.3,86,124/-. Opposite Party No.2 has accordingly settled the claim of the Complainant  as  per the report of the Surveyor in accordance with the terms of the policy. Opposite Party No.2 has paid entire claim of Rs.3,86,124/- to the Complainant.  The Complainant has accepted the settlement with free will and consent and executed a valid full & final discharge voucher. The claim for additional amount is not maintainable.  Opposite Party No.2 never assured to the Complainant for filing the claim against Opposite Party No.1 jointly with the Complainant.  Opposite Party No.1 & 2 have denied all rival contentions of the Complainant made against them and prayed for dismissal of the complaint with costs.

9)        The Complainant has filed his affidavit of evidence.  Opposite Party No.2 has filed affidavit of evidence of Mr. Karunakaran Cheroor.  We have gone through the documents filed by the Complainant and Opposite Party No.2. We heard oral arguments of Smt. Gudia Gupta, Ld.Advocate for the Complainant, Smt. Rashmi Manne, Ld.Advocate for Opposite Party No.1 and Smt. Sapna Bhuptany, Ld.Advocate for the Opposite Party No.2. 

10)      The contention of Opposite Party Nos.1 & 2 is that the accident took place on 24/10/2006.  The complaint has been filed on 12/03/2010 beyond the period of two years from the date of cause of action i.e. 24/10/2006. Smt. Rashmi Manne, Ld.Advocate for Opposite Party No.1 has argued that the complaint has not been filed within two years from the date of cause of action.  The Advocate for Opposite Party No.1 in support of her argument relied on the judgment delivered by the Hon’ble State Commission in Complaint Case No.224/2011, M/s. Tolani Shipping Co. Ltd. through its Director Mr. S. Venkatachalam V/s. Sterling Holiday Resort (I) Ltd., decided on 03/05/2012.  In the said case the Complainant Company had demanded payment of principal amount Rs.28,00,000/- besides the liquidated damages of Rs.30,00,000/- computed @ 18% p.a. interest and compensation of Rs.10,00,000/- aggregating to Rs.68,00,000/- by the letter dtd.27/02/2002. The complaint was filed on 29/08/2011 beyond the period of two years.  In the said case the Hon’ble National Commission observed that the complaint is barred by limitation. In the present case the Complainant demanded the amount of damages from Opposite Party No.1 by the letter dtd.26/10/2006. The Complainant has not mentioned in the said letter any specific amount of expenditure of repair of car in question.  The Complainant has specifically contended in the said letter that the expenditure, if any, required over and the above claim passed by the Insurance Company will be a liability of Opposite Party No.1. The Complainant had not claimed the entire amount of damage of the car in question from Opposite Party No.1 by the letter dtd.26/10/2006.  In the case relied by the Advocate for Opposite Party No.1 the Complainant Company had demanded specific amount from the Opposite Party by the letter dtd.27/02/2002.  However, in the present case the Complainant had only given intimation to Opposite Party No.1 about the liability of payment of damages of the car in question by the said letter. Hence, the above citation does not support the case of Opposite Party No.1.  According to the Complainant, his vehicle in question meet in accident and caused damage of total Rs.6,18,847/-.  Opposite Party No.2 Insurance Company settled the claim of the Complainant and paid him Rs.3,86,124/-. The Complainant is claiming the remaining amount Rs.2,32,723/- by this complaint. Opposite Party No.2 has produced discharge voucher alongwith the written statement and written argument.  On perusal of said discharge voucher it is clear that Opposite Party No.2 has paid amount Rs.3,86,124/- to the Complainant on 31/07/2008. The complaint has been filed on 22/03/2010 and not on 12/03/2010 as pleaded by the Opposite Parties. The complaint has been filed within 2 years from the date of payment of amount Rs.3,86,124/- to the Complainant i.e. 31/07/2008.  The complaint is within limitation as laid down under Sec.24-A of the Consumer Protection Act, 1986. 

11)      Opposite Party No.1 comes with the case that the Complainant is not consumer of Opposite Party No.1.  According to the Complainant, on 24/10/2006 he had visited the cloth shop of Opposite Party No.1.  The Complainant drove his car upto the gate of the shop premises of Opposite Party No.1 and thereafter, the key of the said car was handed over to the driver employed by the Opposite Party No.1 to park the car as valet parking facility was provided by the Opposite Party No.1.  After handing over the key to the driver, the Complainant went inside the shop. The driver of Opposite Party No.1 had hit the car to a column of the basement parking due to which the car in question caused damages. The Complainant informed the said accident to the Manager of the shop of Opposite Party No.1. The Complainant had also reported said accident to Gamdevi Police Station. The Complainant has produced a copy of station diary of Gamdevi Police Station dtd.24/10/2006. It has been mentioned in the said station diary that one Maganlal Bhagwan Patel approached to the Gamdevi Police Station and informed that he is working as a driver with Opposite Party No.1 and he is parking the vehicle of the customers of Opposite Party No.1 in the parking space.  On 24/10/2006 at 11.30 a.m. the Complainant had come to the showroom of Opposite Party No.1 by the Mercedes Car No.MH-04-BW-8722.  He (driver) obtained the key of the car in question from the Complainant for parking the car. The said car had met with an accident.

12)      The Complainant has not produced any document on record to show that alleged informer Mr. Maganlal Bhagwan Patel was working with Opposite Party No.1 as driver on 24/010/2006. The Complainant has also not submitted affidavit of evidence of Maganlal Bhagwan Patel in support of his pleading.  The Complainant has not produced the spot panchanama of the spot where the alleged accident took place. So also the panchanama of damaged car is not on record.  There is no document on record to show that on 24/10/2006 the car in question was in the parking space of Opposite Party No.1 in damaged condition.      

13)      The Complainant has also not produced on record the receipt of parking of the vehicle in question of the parking space of Opposite Party No.1.  The Complainant has not produced any bill of purchase of cloths from the shop of Opposite Party No.1.  The Complainant has not produced any evidence to show that he paid the consideration to the Opposite Party No.1 for parking the vehicle in question or for purchase of anything from Opposite Party No.1.  The Complainant failed to prove that he had hired any service from Opposite Party No.1 for consideration or promised to pay such consideration.  The Complainant has not proved the ingredients of consumer as laid down under Sec.2(1)(d) of the Consumer Protection Act, 1986. 

14)      Smt. Rashmi Manne, Ld.Advocate for Opposite Party No.1 in support of her argument relied on the judgment delivered by the Hon’ble State Commission in the First Appeal No.418/1999, Smt. Tarabai Shrirang Duduskar & Ors. V/s. Shri. Balkrishna Pandurang Deshmane, decided on 18/03/2009 wherein the Hon’ble National Commission observed that –

            “There was no privity of contract between respondent and widow and two sons of deceased Shrirang Duduskar. No consideration was paid to widow and two sons of deceased Shrirang Duduskar.   Widow and  two  sons  of  deceased Shrirang Duduskar did not receive a single pai from the respondent. Under the circumstance, direction to refund Rs.12,000/- is erroneous.”

            In the present case the Complainant failed to prove privity of contract between Opposite Party No.1 and the Complainant.  The Complainant also failed to prove that he paid or promised to pay consideration to Opposite Party No.1. From the evidence available on record and in view of the observation made by the Hon’ble State Commission in the above cited case we held that the Complainant failed to prove his relations with Opposite Party No.1 as consumer and service provider. Hence, the Complainant is not entitle to claim any amount regarding the damages of the car in question from Opposite Party No.1.  

15)      The Complainant is the owner of Mercedes Car No.MH-04-BW-8722.  The Complainant has produced a copy of registration certificate of the said vehicle at Exh.A. As per the said document the vehicle in question was standing the name of Complainant.  Opposite Party No.2 has admitted that the car in question was insured with Opposite Party No.2 under the Policy No.0100207570. The Complainant has admitted in para no.6 of the complaint that, Opposite Party No.2 settled the claim of Complainant to the tune of Rs.3,86,124/- and the said amount of the claim was paid to Auto Hanger directly by the Opposite Party No.2.  As per the discharge voucher submitted by the Opposite Party No.2 the Complainant has accepted amount Rs.3,86,124/- from Opposite Party No.2 in full and final satisfaction and discharged his claim No.620066935-A upon the Company under the Policy Certificate No.0100207570 in respect of claim arising on 24/10/2006. The Complainant has accepted the above said amount as full and final satisfaction of the claim.  Hence, now Complainant is not entitle to make any additional claim against Opposite Party No.2.  The concerned police of Gamdevi Police Station at the end of station diary mentioned that, the said accident was minor therefore, its investigation has been closed.  From the above fact it appears there was no major accident of the vehicle in question and Opposite Party No.2 properly and correctly paid the claim amount to the Complainant as per the repot of the Surveyor. The Complainant failed to prove that, there is deficiency in service on the part of Opposite Party No.2.  The Complainant failed to prove that he is the consumer of Opposite Party No.1.

            In the result complaint deserves to be dismissed.  Considering the nature of complaint both the parties have to bear their own cost of the litigation.  Hence, we proceeds to pass following order –

                                                                                              O R D E R

                     i.          Complaint No.75/2010 is dismissed.

             ii.         Both the parties shall bear their own costs. 

iii.        Certified copies of this order be furnished to the parties.