| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 200 of 03-08-2018 Decided on : 30-08-2022 Geeta Devi W/o Sadhu Ram R/o House No.29344-C, Janta Nagar, Bathinda, Tehsil and District Bathinda.
........Complainant Versus Manager, Harchand Cinema, Goniana Road, Bathinda. Parking Contractor Harchand Cinema, Goniana Road, Bathinda. Hero Corporate Service Pvt. Ltd. Insurance Distribution C/o Kamal Enterprises, Bibiwala Road, Bathinda, through its Authorized Person. National Insurance Co. Ltd. Branch Office at # 2033, The Mall, Bathinda, through its Branch Manager/Senior Divisional Manager.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Smt.Paramjeet Kaur, Member Present For the complainant : Sh. Amandeep Singh, Advocate. For opposite parties : Sh.H.S Khosa, for opposite party No. 1. Opposite party Nos.2 and 3 ex-parte. Sh.Manohar Lal Bansal, for opposite party No.4. ORDER Kanwar Sandeep Singh, President The complainant Geeta Devi (here-in-after referred to as complainants) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Manager, Harchand Cinema and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that she is owner of one motorcycle bearing registration No.PB-03AK-5135 purchased from Kamal Enterprises, Bathinda and same was duly insured vide policy bearing No.39010231166204165702 valid from 12.1.2017 to 11.1.2018. The terms and conditions of the insurance policy were not conveyed or issued to the complainant and its copies were not sent to her through registered post or in any other manner. It is alleged that on 28.11.2017, the complainant alongwith her brother Visram S/o Ram Chander R/o Gali No.6, Janta Nagar, Bathinda went to watch a movie in Harchand Cinema, Goniana Road, Bathinda. They parked their vehicle in the parking place of Harchand Cinema against receipt No.471. The movie was over and they came out of cinema hall and produced receipt No.471 to the parking staff and asked for the vehicle, but the vehicle was not available there. The complainant enquired from the parking staff and employees of the cinema, but they did not give any satisfactory reply and she was told that her vehicle has been stolen by some person. The parking contractor/parking staff gives the vehicle on production of parking slip and except slip, they do not give vehicle and it seems that the management/parking staff of Harchand Cinema played some mischief and stole the vehicle of the complainant as the vehicle was parked against the proper receipt, there is no question of taking vehicle by some other person without showing the receipt. As such, it is clear that the parking staff of the cinema have their hand in the theft of the vehicle. It is further alleged that the vehicle was not found and brother of the complainant got lodged F.I.R No.0237 dated 5.12.2017 with P.S Civil Lines, Bathinda U/s 379 I.P.C. The information regarding the theft of the vehicle was given well in time to the insurance company and required formalities were completed. As the vehicle in question was fully insured including theft, it is the responsibility of the insurance company i.e opposite party No.3 to make the payment of the value of the stolen vehicle. The complainant several times approached opposite party No.3 and submitted her claim, but it did not pay any heed to her requests. On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay Rs.28,260/- i.e. insurance value of the vehicle and is also entitled for Rs.50,000/- as damages on account of harassment caused by opposite party No.3 and also entitled for Rs.5000/- as litigation expenses or to pay any other additional or alternative relief. Upon notice, none appeared on behalf of opposite party Nos.2 and 3. As such, ex-parte proceedings were taken against them. Opposite party No.1 appeared through counsel and contested the complaint by filing written version. Opposite party No.1 filed separate written version and raised legal objections that the complaint is not maintainable as the complainant is not 'consumer' as defined under 'Act'. She has misrepresented the true facts before this Commission with malafide intention to draw illegal gains. Further legal objections are that the complainant has concealed the material facts from this Commission and opposite party No.1. As such, she is not entitled to any relief. She has concealed the fact that Harchand Cinema is closed since long years. Opposite party No.1 has not given any contract of parking to any person. The complainant has failed to disclose which movie her brother came to see and produce any ticket of cinema of the date of loss. As such, the allegations are totally false and baseless. She has no cause-of-action or locus-standi to file the complaint against opposite party No.1. On merits, opposite party No.1 pleaded that the parking ticket is not belonged to it. The complainant has failed to lodge F.I.R immediately after loss. It shows that she has concocted a false story to involve opposite party No.1 in this complaint. The complaint is related to opposite party No.3. There is no deficiency in services on the part of opposite party No.1. As such, the complainant is not entitled to any claim from opposite party No.1. In further written version, opposite party No.1 has reiterated its stand as taken in the legal objections and detailed above and prayed for dismissal of complaint. Opposite party No.4 also filed separate written version and raised legal objections that the allegations made by the complainant are only to injure its goodwill and reputation. The complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, opposite party No.4 is entitled to special costs from the complainant U/s 26 of 'Act' to the tune of Rs.10,000/-. This Forum has no jurisdiction to try and entertain this complaint as the claim of the complainant has been repudiated after thorough investigation. Further legal objections are that the intricate questions of law and facts are involved in this complaint. They require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. The complainant has concealed the material facts and documents from this Forum. As such, she is not entitled to any relief. The true facts of the case are that on receiving the intimation regarding theft of insured vehicle, opposite party No.4 deputed its investigator Sh.Mithu Ram Sharma to investigate the matter, he confirmed the theft of insured vehicle vide his report dated 20.2.2018, but at the same time, he reported that in fact, the insured motorcycle was missed from the parking of Harchand Cinema that was parked there after paying the parking charges under receipt No.471. As such, it is the liability of parking owner to pay amount of motorcycle to the complainant. The insured vehicle was stolen from the custody of parking owner and there is no privity of contract between the parking owner and opposite party No.4, so opposite party No.4 is not at all liable to pay the claim. Accordingly, the claim of the complainant has already been closed by opposite party No.4 as 'No Claim', as the liability, if any, to keep the vehicle safely was that of the parking owner. It is further pleaded that there is unexplained delay of more than 7 days in intimation about the theft of insured vehicle whereas the complainant was required to give immediate notice in writing about the loss. Rather she parked the vehicle in parking stand vide separate contract and she was 'consumer' of parking stand owner. She has violated the terms and conditions of the policy. The complaint is bad for non-joinder of necessary parties and mis-joinder of parties. The complainant has no locus-standi or cause-of-action to file the complaint against opposite party No.4. The complaint is not maintainable in its present form. There is no deficiency in service or unfair trade practice on the part of opposite party No.4. On merits, the opposite party No.4 has pleaded that the detailed terms and conditions were supplied to the complainant. It is the duty of the parking stand owner to take care of the vehicles parked by respective consumers. A perusal of F.I.R is itself negligence and deficiency in service, if any, lies with the parking stand owner and not with opposite party No.4. In further written version, opposite party No.4 has reiterated its stand as taken in the legal objections and detailed above and prayed for dismissal of complaint. In support of his complaint, the complainant tendered into her affidavit dated 28.8.2018 (Ex.C-5) and other documents Ex.C-1 to Ex.C-4. In order to rebut the evidence of the complainant, opposite party No.1 tendered into evidence affidavit of Sanjay Kumar Sharma dated 26.10.2018 (Ex.OP1/1). Opposite party No.4 tendered into evidence of Affidavit of N.K. Sachdeva dated 28.3.2019 (Ex.OP4/1) and other documents Ex.OP4/2 to Ex.OP4/5. We have heard learned counsel for the parties and gone through the record. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. We have given careful consideration to these submissions. The complainant alongwith her brother went to Harchand Cinema, Goniana Road, Bathinda on her motorcycle bearing registration No.PB-03AK-5135 to watch movie and she parked her vehicle in the parking of cinema against receipt No.471, (Ex.C3). After watching movie when she came to the parking of cinema to take her vehicle back, she found that her vehicle had been stolen. It was the duty of the parking stand owner of cinema to take care of the vehicle as he has charged Rs.10/- against receipt, but parking stand owner or his staff have failed to take care of the vehicle in question. It amounts to deficiency in services on their part. The support can be sought by the following cases law:- The Hon'ble UT Consumer Disputes Redressal Commission, Chandigarh in case titled Assistant Commissioner, Municipal Corporation Vs. G.S Chawala & others, III (1999) CPJ 616 has held:- “Consumer Protection Act, 1986-Sections 14(1) (d), 15-Appeal-compensation Municipal Corporation-Liability of vehicle stolen from parking-Municipal Corporation merely lent the premises to contractor, not liable to pay compensation-Contractor alone responsible for safe custody of vehicle, deficient in service, liable to pay compensation.” The Hon'ble Chattisgarh State Consumer Disputes Redressal Commission, Raipur in case titled Ashutosh @ Ashu Agrawal Vs. Shyam Kumar Baind & Ors, II 2010 (1) CPJ 81 has held:- “Consumer Protection Act, 1986-Section 2(1)(g), and 14 (1) (d)- Parking-Vehicle stolen-Movie hall-Motorcycle parked in the stand run by Cinema Hall-Vehicle found missing after returning from movie-Deficiency in services alleged-Complaint allowed-Hence appeal-Cycle stand run on contract-As per agreement only R3 responsible-Contention allowed-Terms and conditions perused-R3 alone responsible for theft of vehicle-No liability of appellants-Order modified.” We are of the considered view that parking space services of opposite party No.2 were hired by the complainant for consideration for keeping here motorcycle in safe custody, but the vehicle was lost due to negligence of opposite party No.2, so opposite party No.2 is deficient in service. Further perusal of policy, (Ex.C2) reveals that the motorcycle of the complainant was duly insured with opposite party No.4 vide policy bearing No.39010231166204165702 valid from 12.1.2017 to 11.1.2018. Opposite party No.4 submitted that the motorcycle was missed from the parking of Harchand Cinema. As such, it is the liability of parking owner to pay amount of motorcycle to the complainant. As such, opposite party No.4 closed the claim of the complainant as 'No Claim'. No doubt the vehicle was stolen from the custody of opposite party No.2, but the vehicle was fully insured with opposite party No.4. As such, opposite party No.4 also cannot be exonerated from its liability to pay the claim of the complainant as it has received premium from the complainant. So far as opposite party Nos.1 and 3 are concerned, there is no evidence on file against them. In view of what has been discussed above, this complaint is partly allowed against opposite party No.2 and 4 and dismissed qua opposite party Nos.1 and 3. Opposite party No.2 is directed to pay Rs.15,000/- as cost and compensation to the complainant and opposite party No.4 is directed to pay I.D.V of vehicle i.e. Rs.28,260/- to the complainant alongwith interest thereon @ 8% per annum from the date of repudiation i.e. 22.2.2018 till realization. The compliance of this order be made by the opposite party No.2 and 4 within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 30-08-2022
(Kanwar Sandeep Singh) President (Paramjeet Kaur) Member
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