PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they did not take care of the vehicle of the Complainant kept in the custody of the Opposite Parties with the result vehicle was stolen.
The fact of the complaint as mentioned by the Complainants are that the Complainant No.1 is the owner of Santro M/Car No.MH03 Z3251 which was insured with Complainant No.2 having insured Declared value (IDV) of Rs.3,14,320/-.
2) Opposite Party No.1 is one of the best eateries in Mumbai having valet parking facility. On 29/07/06, Complainant No.1’s son Parag Shah went to Opposite Party No.1 for dinner in the night alongwith the above said car. The car was handed over to the valet driver of Opposite Party No.1, after taking a Token No.F1.461. Opposite Party No.1 has also maintained a Register for entries of such cars which are being taken into custody for parking. Accordingly relevant entry has ben made in the said register on 29/07/06.
3) At about 1.30 a.m., after finishing the dinner when Parag came out of the eatery, the valet driver informed him that the said car was missing. Immediately FIR was lodged for theft of the said car. As the car was insured, Complainant no.2 paid Rs.3,13,820/- to the Complainant No.2. The Complainant No.1, vide his letter dtd.15/02/07 duly executed the letter of subrogation in favour of Complainant No.2.
4) It is the contention of the Complainants that motor insurance being contract of indemnity, Complainant NO.2 is entitled for subrogation right to the extent of amount paid under relevant policy. Therefore, Complainant No.2 is entitled to sue the Opposite Parties in conjunction with insured (Complainant No.1) for the purpose of recovery under subrogation. Complainant No.1 is the consumer and Complainant No.2 is claiming through Complainant No.1 under subrogation for Rs.3,13,820/- only.
5) Complainant No.1 vide his letter dtd.30/01/07, addressed to Opposite Party No.1, demanded to make good the loss suffered by him on account of theft of loss car due to negligence on the part of the employees of the Opposite Parties. The Opposite Parties failed & neglected to safeguard the car of the Complainant No.1. Therefore, the Opposite Parties are liable jointly and severally to make good the loss suffered by the Complainant No.1. It is further submitted by the Complainants that Opposite Parties are liable under the law to pay Rs.3,14,820/- to the Complainant No.1. The whole episode caused great anxiety and mental torture to Complainants and hence, Opposite Parties are also liable to pay Rs.1 Lac towards mental agony and penal damages. Complainant No.1 has no objection if Rs.3,13,820/- are paid to the Complainant No.2 directly. The Complainants have further stated that the Opposite Parties are guilty of deficiency in service and hence, they should pay Rs.4,14,320/- alongwith interest and cost.
6) The Complainants have attached the xerox copies of the following documents, such as, registration certificate of the car in the name of the Complainant No.1, Insurance Policy/Schedule of the policy, Token No.461, Extract of the register dtd.29/07/06, Final report of D.B. Marg Police Station in respect of CR No.152/06, dtd.01/08/06, letter of subrogation by the Complainant No.1 in favour of Complainant No.2. Advocates letter to Opposite Party No.1, dtd.02/02/2007.
7) The complaint was admitted and notices were served on the Opposite Parties. Opposite Parties are appeared through their advocates and filed their written statements wherein they have denied the charges of deficiency in the service and specifically stated that this complaint is for subrogation which does not come within the purview of the Consumer Protection Act. It is further clarified that Opposite Party No.2 to 5 are not the owners of Opposite Party No.1. But the Opposite Party No.1 Restaurant is owned by M/s. Bombay Cycle & Motor Agency Ltd., a Public Ltd. Company. Hence, there is no cause of action against Opposite Party No.2 to 5.
8) The Opposite Parties have further explained the meaning of subrogation.
9) It is further averred by the Opposite Parties that the 2nd Complainant is not a ‘Consumer’ and therefore, not entitled to maintain the complaint. No service was provided by the Opposite Parties to either of the Complainants. None of them are the consumers. Complainant No.2 being Insurance Company cannot be a consumer and the Insurance Company cannot be subrogated into the shoes of the Complainant. So no cause of action has arisen against Opposite Parties. It is further submitted by the Opposite Parties that, the plain reading of the Complainant particularly para 8 and 10, shows that the provisions of the Consumer Protection Act, 1986 are invoked for recovery under subrogation and not for alleged deficiency in service when no service was provided to the Complainants. The complaint was filed by Complainant No.1 so as to benefit the Complainant No.2 who is not otherwise entitled to invoke the provision of the Consumer Protection Act, 1986.
10) The Opposite Parties have further averred that, Complainant No.1 has received the claim for loss (theft of his car) from Complainant No.2 (Insurance Co.). The Insurance Company being Complainant No.2 herein has paid the money to Complainant No.1 under Insurance Policy. The Complainant No.1 now cannot claim the same amount again in the complaint under the law of subrogation in Consumer Forum under the Consumer Protection Act. On the pretext/guise of being a consumer.
11) It is further submitted by the Opposite Parties that Complainant No.1 after receiving the claim from Complainant No.2 cannot unjustly enrich himself by resorting to provisions of the Act.
12) It is further averred that Opposite Party No.1 carries on business of Restaurant. The guests visit the restaurant for food etc. some of the guests come by car, some come by taxi, and some come by walking. In order to provide the convenience of parking to the guests in Restaurant, the valet parking service, which is free, is provided. This service has been given to the guests for convenience in order to save their time for searching for space to park the car and to park the same in legal parking area at the risk of the owner. The guests who comes to the Restaurant, hands over the keys to the staff of valet parking services against a token where it has been clearly mentioned, “The vehicles are parked at owner’s risk”.
13) Thereafter the guest after the visit, hands over the token to the person manning valet parking service and such person brings the car from car park to the door step of the restaurant and hands over the car to the guest. This service is provided for the sake of convenience of the guests and not for any consideration. Providing security and safety for the car is not at all the function of the valet parking service provider. Therefore, the valet parking facility provided by Opposite Party No.1 cannot be and should not be considered as a “pay and park” facility.
14) The Opposite Parties have further stated that on 29/07/2006 Parag Shah visited the Opposite Party No.1 for dinner and he had came alongwith a car. As per regular practice, car was taken and a token was given to Mr. Parag. The token clearly mentioned that “The vehicles are parked at the owner’s risk”. The car was parked on the roadside near the restaurant.
15) It is further submitted by the Opposite Parties that merely by obtaining a subrogation letter, in favour of Complainant No.2, Complainant No.2 does not become a consumer within the meaning of the Consumer Protection Act. Provisions of CPA cannot be invoked by either of the Complainants for recovery under subrogation. No service is provided to either of the Complainants. Hence, none of the Complainants are consumers under the Consumer Protection Act.
16) It is further stated by the Opposite Parties that, theft did not occur due to any negligence, on the part of Opposite Parties. It is also clarified that the letter dtd.02/02/07 was received by Opposite Party No.1 on 11/04/07. The delay was intentional and was made with an ulterior motive. The said letter was replied vide its letter dtd.30/04/07 in which all the allegations were denied.
17) Finally the Opposite Parties have prayed that the complaint be dismissed with cost.
18) The Opposite Parties have attached the xerox copy of a letter dtd.30/04/07, addressed to Ms. Kashmira Sanghavi, Advocate.
19) Thereafter Opposite Party No.1-A Bombay Cycle and Motor Agency Ltd. was added to the complaint and Opposite Party No.3 was deleted from the complaint.
20) Opposite Party No.1-A also filed its written statement wherein it reiterated the contents mentioned in the written statement of the Opposite Party No.1 to 5 as stated earlier. The Complainants then filed their affidavit in rejoinder and written argument wherein they reiterated the facts and points mentioned in their complaint. The Opposite Parties also filed their written argument wherein they reiterated the facts and points stated in their written statement.
21) We heard both the Ld.Advocates and perused the papers submitted by all the parties and our findings are as follows.
22) One Mr. Parag had been to Opposite Party No.1 Restaurant for a dinner on 29/07/06, alongwith the Santro Car No.MH03 – Z3251. Mr. Parag is the son of present Complainant No.1. The above car was handed over to the staff of the Opposite Party No.1 for parking. The staff has issued one token to Mr. Parag mentioning the number of Token, car number and a instruction that “The vehicles are parked at owner’s risk”. Mr. Parag enjoyed his food between 11.30 p.m. and 1.30 a.m. next day. After two hours when he came out of the restaurant the car was missing. It was stolen.
23) Opposite Party No.1 is a restaurant, providing food to its customers. Food was provided to one Mr. Parag. The present Complainant No.1 had not visited Opposite Party No.1 restaurant for taking food. Whatever the services provided by Opposite Party No.1 restaurant, they were provided to Mr. Parag and not to any of the Complainant in this complaint. Mr. Parag, though, is a son of the Complainant No.1 is a separate entity. Mr. Parag has not been made a party to this complaint, nor he is one of the Complainants of this complaint. Complainant No.2 is the Insurance Company who had insured the stolen car.
24) The Complainants have averred in para 4 of the complaint that Opposite Party No.1 had widely advertised as one of the eateries in Mumbai having valet parking facility. But there is nothing on record to support this averment that Opposite Party No.1 has widely advertised that it has valet parking facility. There is no documentary proof in this behalf. We carefully went through the written statement of the Opposite Parties to find out whether there is any admission of the Opposite Parties to this effect. We found that the Opposite Parties have submitted that Opposite Party No.1 carries on the business of a restaurant. Guests visit for having food etc. “In order to provide the convenience of parking to guest in the restaurant, the valet parking service which is free parking service to the guests is provided.” From this averment of the Opposite Parties it appears that they have provided valet parking service free of charge for the convenience of the customers who visit the restaurant for taking food. Therefore, in our candid opinion, neither Complainant No.1 nor Complainant No.2 had visited the Opposite Party No.1 restaurant on 29/07/06. Therefore, the facility of convenience which was free in nature, was not availed by either of the Complainants.
25) Even the valet parking, provided to one Mr. Parag, was provided to him on a condition that “The vehicles are parked at owner’s risk”. The token was issued to Mr. Parag. It was conspicuously mentioned in this token the above said condition. Thus, the real consumer who has visited Opposite Party No.1 for taking food had a knowledge that he had come for enjoying his dinner but his vehicle had been kept at his risk and not at the risk of the Opposite Party No.1.
26) We have also observed in this complaint that Mr. Parag the son of a Complainant No.1 has not produced even the bill towards dinner he had taken in Opposite Party No.1 restaurant. Then how the Complainants claim that the bill of Opposite Party No.1 was exorbitant and included the parking charges of the vehicles of the customer who visit it for taking food. The Opposite Parties have clarified in their written statement that the valet facility cannot be and should not be considered as a “pay and park facility”. Therefore, in absence of a evidence that the Opposite Party No.1 is a starred hotel, in absence of a bill for dinner which was claimed to be exorbitant by the Complainants, and particularly when there is a conspicuous instruction on the token given to the customer that the vehicle was parked at owner’s risk, it would be illogical to conclude that the parking service provided by the Opposite Party No.1 to its customer was a paid service and it was a contractual obligation of the Opposite Party No.1 to safeguard the vehicle of the customer.
27) It seems natural when we think that the vehicle given to the valet driver of the Opposite Party No.1, should be returned to the customer after his dinner in normal course. But, when somebody commits a theft, and it is not returned to the customer, the question of legal obligation, contractual obligation, liability of Opposite Party No.1 come before us. In the instant case, it is not clear under what circumstances the vehicle was stolen. How was the locking system of the vehicle ? Where actually the vehicle was kept ? The Complainant has not produced the actual F.I.R. lodged with the police station. A final report in respect of this F.I.R. was only attached to this complaint. From this report it is seen that, the incident of theft of the said car took place in the night of 29/07/06 and 30/07/06 but F.I.R. was lodged on 01/08/06. Actually what was expected that, Mr. Parag should have lodged the F.I.R. immediately after 1.30 a.m. on 30/07/06. The F.I.R. was also not lodged by Parag. It was lodged by one Mr. Paresh on 01/08/06. This circumstance does not clarify as to why the F.I.R. was not lodged immediately when the concerned police station is in nearby vicinity. Why the F.I.R. was not lodged by Mr. Parag. More importantly Mr. Parag is not before this Forum. Therefore, taking into consideration all the above points discussed in paras 21 to 27 above it cannot be said that the service rendered by the Opposite Party No.1 is paid service and both the Complainants have availed this service.
28) The averment made in para 6 of the complaint is not true. It is stated in this para that at 1.30 a.m. on 30/07/06, the theft of the car came to the notice of Mr. Parag and after searching for 2 hours, he lodged F.I.R.. But, the F.I.R. was lodged not on 30/07/08 but after long 2 days i.e. on 01/08/06 by one Mr. Paresh and not by Parag. It is also stated by the Complainants that the copy of F.I.R. is there at Exh.‘E’ but it is a final report submitted to the Court and not F.I.R.. Thus, the Complainant’s have not come with truth in para 6 of the complaint. Certainly it is expected of any Complainant that they should came to the Forum with each and every true averment.
29) The Complainants have averred in para 11 of the complaint that Complainant No.1 is the consumer of Opposite Parties for valuable consideration having paid exorbitant price for dinner, the ambiance and facilities including valet parking facility. However, the Complainants have forgotten that they had not visited the Opposite Party No.1 restaurant and paid the consideration. One Mr. Parag was the person who had been for the dinner but even he has not given any bill for the dinner nor he is before this Forum. Even affidavit of Mr. Parag is not filed to support the averments made in the complaint.
30) The Complainants have produced an order of the Hon’ble National Commission in Revision Petition No.238/98 wherein the Complainants are the Oriental Insurance Co. Ltd. as Complainant No.1 and M/s. Jithen Trading Co. was the Complainant No.2. M/s. Jithen Trading, the Complainant No.2 had availed the services of East India Transport Agency. In the instant case Mr. Naresh Shah, the Complainant No.1 has not visited the restaurant. Mr. Parag had availed the services of taking food and not Mr. Naresh. Secondly there was legal obligation on the East India Transport Agency to take the goods to the consigner under the Carrier Act. Here in instant case, there is no such legal or contractual obligation on the Opposite Party No.1 restaurant to safeguard the vehicle of Mr. Parag. On the contrary, there was a clear instruction to the customers that the vehicles are parked at owner’s risk. Therefore, the ratio of the case in East India Transport Agency V/s. M/s. Oriental Insurance Co. Ltd. and M/s. Jithen Trading is not applicable to the complaint in hand.
31) The Complainants have also produced judgement of the Hon’ble National Commission in Revision Petition No.250/97 in Mahesh Enterprises V/s. ArunKumar Gumber & Others. In this case, the Complainant parked his uninsured car in un-authorized parking area of IAAI at Airport and it was found missing. It was a bailment. The management of parking are was handed over the agreement i.e. there was a formal agreement which governed the parking of the vehicle. There are specific terms and conditions of parking. The Opposite Party (parking authority) has assumed responsibility for safety of the vehicles parked on payment of prescribed charges. In the case in hand, there is no such agreement whether formal or implied. No responsibility was assumed by Opposite Party No.1. On the other hand the customer, who come to take food are clearly instructed by means of a conspicuous instruction on the token given to the customer, that the vehicle is parked at owner’s risk. Still the Complainants have produced this judgement alongwith their argument. Certainly the facts of this case do not apply to the facts of the complaint before us.
32) The Complainants has also produced the judgement of the Hon’ble Supreme Court in case of Economic Transport Organisation, Delhi V/s. Charan Spinning Mills and Economic Transport Organization V/s. Oriental Insurance Co. & Anr. In this case also, there was a legal obligation on the carrier. It is case of damage resulting from the negligence of a service provider who is the carrier. There is a legal obligation on the carrier to provide service under Carriers Act. In the case in hand, there is no such legal or contractual obligation as stated earlier.
33) The Opposite Parties have produced the judgement of the Hon’ble National Commission in an Appeal No.613/95 in Bombay Brazzerie V/s. Mulchand Agarwal and the United India Insurance Co. Ltd. Most of the facts of this case before the Hon’ble National Commission are similar to the facts of the case in hand. But in the case of Bombay Brazzerie, Mr. Mulchand who had come to take the food in the Hotel, was a Complainant as a consumer but in the instance as the Complainant No.1 as well as 2 had not been to the Opposite Party No.1 Hotel for taking the food nor they had paid any consideration to the Hotel either for food or for parking. The son of the Complainant No.1 had been to the Hotel. Even no bill for the payment is produced before this Forum. Under such circumstances and points discussed earlier, we do not find any merits in the complaint and the Complainants are not entitled to any compensation whatsoever, for the theft of the car.
34) Therefore, in view of the above observations made by us we think that the Complaint does not have merits. Hence, we pass the order as below -
O R D E R
i)Complaint No.254/2007 is hereby dismissed for want of merits.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
