Date of Filing: 11-05-2017
Date of Order:22 -05-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 22nd day of May, 2019
C.C.No.202 /2017
Between
Sri Sai Goud Yerra, S/o.Srinivas Goud,
Age: 32 years, Occ: Software Engineer,
R/o.flat No.403, Rich Homes,
Near Tennis Court Godavari Homes,
Jeedimetla Road, Suchitra, Hyderabad ……Complainant
And
- M/s. Hotel Kamal Private Limited,
Rep. by its authorized Representative,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003
- Mr. Ravi Kumar Ohri
Director of Hotel Kamal Private Limited,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003
- Mr.Amar Ohri,
Director of Hotel Kamal Private Limited,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003
- Smt. Kamal Devi Ohri,
Director of Hotel Kamal Private Limited,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003
- Mr.Sonal Ohri
Director of Hotel Kamal Private Limited,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003
- Mr. Vinod Kumar Batra
Director of Hotel Kamal Private Limited,
H.No.9-1-167/168, Sarojini Devi Road,
Secunderabad – 500003 ….Opposite Parties
Counsel for the complainant : Sri Pandarinath Goud Yerra
Counsel for the opposite Parties : M/s.Kishore Rai
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint is preferred under Section 12 of C.P. Act of 1986 alleging that there was deficiency of service on the part of the opposite parties in allowing his car to be committed theft with sheer negligence and inconsequence of it a direction to pay the cost of the subject car amounting to Rs.8,00,000/- , to pay compensation of Rs.1,00,000/- for causing mental agony and to pay a sum of Rs.25,000/- towards cost of this complaint.
Complainant’s case in brief is that on 14-10-2015 he visited opposite party No.1 hotel to have a lunch at 12.12PM. He availed the services for parking of his car bearing No.AP25AL-4244 in the parking slot provided by opposite party No.1 hotel. After parking the car before entering into opposite party No.1 hotel handed over the keys to the valet parking which are under the control of the hotel management and collected token No.007403. After having the lunch he was given voucher for a sum of Rs.299/- valid upto 08-11-2015. After finishing the lunch he came out and went to the parking slot and requested the opposite party No.1’s valet parker to bring the vehicle. The valet parker came and informed that the car was missing from the parking slot, then he realized that due to negligence and deficiency of service on the part of the Valet parker under the control of opposite party No.1managment the car was subjected to theft. On request the opposite party No.1’s Valet parker examined the CCTV footage and it proves the negligence on the part of the Valet parker. The complainant lodged a report with Panjagutta police on the same day and the police concerned registered a case in Cr.No.812/2015 for the offence of under Section 379 of IPC. Later the said crime was transferred to the central crime branch where it was re-registered as Cr.No.307/2015 on 12-12-2015. As per the terms and conditions on the valet parking token issued by opposite party No.1 the valet parker should deliver the car back to the complainant but on account of the theft it was not returned the complainant .
opposite party No.1 has been registered under the Companies Act with the registrar of the companies hence company and the persons who are running company are liable for loss caused to him. Complainant got issued a legal notice on 24-03-2017 to opposite parties but there was no reply to it. Hence the present complaint for the above stated reliefs.
Common written version has been filed for all the opposite parties admitting that parking of the complainant’s car in the parking slot provides by hotel manager of opposite party No.1 and theft of the said car but denied the liability for the complainant’s claim. The substance of the defense set out by the opposite parties is that the complainant after getting registered the crime for the theft of the car and it was not recovered, instead of filing of an appropriate claim before the insurance agency filed the present complaint on false and frivolous grounds. The complainant does not come under the ambit of consumer as defined under Section 2(1) (d) of C.P.Act 1986. The complainant voluntarily parked his car accepting the terms and conditions printed on the token which are as under.
The hotel is authorized to deliver the vehicle to any person presenting the token without identification. The Vehicle is parked at owners request and solely at owners risk and responsibility, The hotel management is not responsible for loss of any valuables kept in the car given at Valet parking. In case Hotel car parking slot is full, the vehicles will be parked on the road and in case of any damage or loss, the owner assumes all the risks and the Hotel will not be responsible or liable for any damage to any vehicle by fire, water , theft or any other parked using valet services or not. The complainant having voluntarily accepted these terms and conditions mentioned in the valet token handed over the car to the Valet parker for parking it.
After theft of the car the opposite party No.1 offered to help to the complainant by providing a copy of the CCTV footage. The complainant became violent and attacked the staff of the opposite party No.1 hotel and entered into the premises of the hotel along with his 5 henchmen and tried to destroy the property of the hotel. Hence the opposite party No.1 addressed a letter to the Panjagutta police on 3/11/2015 for providing security to staff and their property from the complainant and his henchmen.
Complainant should have approached the insurance company for the relief and not against the opposite parties. It is a mandatory rule to have a car insurance and a person cannot drive a car without having a proper insurance policy and same is offence punishable and also amounts to violation of RTA Rules and provisions of Motor Vehicles Act.
To the legal notice of the complainant dated 18-1-2017 a suitable reply was issued on 16-02-2017 and the complainant got issued a rejoinder notice and filed the present complaint after lapse of 2 years to cause wrongful loss to the opposite parties and to have gain for himself. The complaint is devoid of merits and is liable to be dismissed.
In the enquiry stage the complainant has got filed his evidence affidavit reiterating the material facts of the complaint and got exhibited Ten (10) documents to support his claim. For the Opposite Parties evidence affidavit of opposite party No.6 is got filed and substance of the same is in line with the defence taken in the written version and through him copy of the reply notice to the notice of the complainant is got exhibited as B1. Complainant filed written arguments whereas opposite parties made oral submissions.
On a consideration of material available on record the following points have emerged for consideration .
- Whether the complainant could make out a case of deficiency of service on the part of the opposite parties ?
- Whether the complainant is entitled for the reliefs prayed for ?
- To what relief?
Point No.1: The facts relating to the visit of the complainant to the hotel of opposite party No.1 on 14-10-2015 for having lunch and handing over the car to the Valet parker made available by the opposite party No.1 and theft of the car from the parking slot by unknown persons are not in dispute.
The main defense taken by the opposite parties is complainant is not a consumer within the definition of Section 2(d) of C.P.Act which reads as under: “Section 2 (1) (d): (i) “Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any used of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”;
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Before considering that there was deficiency of service on the part of the opposite parties what is services as defined under Section 2 (o) is to be looked into and it reads as under:
Section 2 (o) defines “‘service’ means service of any description which is made available to potential, [users and includes, but not limited to] the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing, construction] entertainment, amusement or the purveying of news of other information, but does not include the rendering of any service free of charge or under a contract of personal service:”
The last two lines of the above definition postulates that the service does not include rendering of any service free of charge or under a contract of personal service. In the light of it now it is for the complainant to substantiate whether he agreed or offered to pay for the service provided to him by way of taking his car and keeping it in the parking slot. It is not the case of the complainant that whatever the amount he paid towards of lunch also includes for the service of parking of his car by the valet parker. It is not as if the manager of the opposite party No.1 hotel gives different bills to the persons whose car was taken to keep it in the parking slot when compared to other persons comes into the hotel without any vehicle. So absolutely the service of taking the car of the complainant by a valet parker to keep it in the parking slot is a voluntarily one and not a paid service.
In the light of the definition under Section 2 (o) as narrated above it is a clear case of free service to the complainant hence complainant cannot allege a deficiency of service and seek compensation to loss of his car. Even assuming for a moment without admitting that the services of valet parker complainant accepted as the part of the hotel service offered by the hotel in providing lunch on cost still it is to be seen whether he can claim any compensation from the opposite parties. The complainant himself has filed token given by Valet parker while accepting the car to keep it in the parking slot provided by opposite party No.1 hotel management. As rightly pointed out by the opposite parties this Ex.A1 token contains the terms and conditions. Since the complainant has collected the token and handed over the car to the Valet parker it is deemed that he accepted the terms and conditions printed on the token. There are only terms and conditions printed on Ex.A1 token and they reads as under:
- By accepting this ticket the holder accords to the rules given below
- The hotel is authorized to deliver the vehicle to any person presenting the slip without identification
- Vehicles parked at owners request and solely at owners risk and responsibility
- The hotel management is not responsible for loss of any valuables kept in the car given to Valet parking
- In case of Hotel car parking slot being full, the vehicles will be parked on the road and in case of any damage or loss, the owner assumes all the risks the Hotel will not be responsible of liable for any damage to any vehicle by fire, water , theft or any other case parked using valet services or not.
So above terms and conditions clearly says that the valet parker under the control of opposite party No.1 hotel management parked the car at the risk of the owner and management shall not be made responsible for the loss of any valuables kept in the car and not liable any damage or loss of the car from the parking slot. In the light of the above terms and conditions printed on the Ex.A1 token which are deemed to have been action accepted by the complainant he cannot claim that the opposite parties are liable to compensate loss suffered on account of theft of his car. So either on law or on facts the complainant cannot allege of deficiency of service on the part of the opposite parties in the given case. Accordingly point is answered against the complainant.
Point No.2: In the light of the above findings to point No.1 it is to follow that the complainant is not entitled for any of the reliefs as prayed for.
Point No.3: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 22nd day of May , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- token No.007403
Ex.A2- voucher ref.802893
Ex.A3-RC of vehicle no.AAP25AL424
Ex.A4-FIR No.812/2015dt.14-10-2015
Ex.A5-FIR No.307/2015 dt.12-12-2015
Ex.A6- legal notice dt.24-03-2017
Ex.A7-postal receipts
Ex.A8- acknowledgements
Ex.A9- computer disk (CD)
Ex.A10- final report dt.12-12-2015
Exs. filed on behalf of the Opposite parties
Ex.B1-reply notice dated 16-02-2017
MEMBER PRESIDENT
