CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(ADDITIONAL BENCH)
Consumer Complaint No. | : | 41 of 2022 |
Date of Institution | : | 27.04.2022 |
Date of Decision | : | 23.12.2022 |
Jatin Bansal S/o Sh.Krishan Kumar, Resident of House No.320-A, Sector-9-D, Chandigarh (8288885777) jatinbansal.rgnul@gmail.com)
……Complainant
V E R S U S
- Nexus Malls Pvt. Ltd., Embassy 247, Unit 501, B Wing, Lal Bahadur Shastri Marg, Vikhroli West, Mumbai-400 083
- Elante Mall, Plot No.178, Industrial Area, Phase-I, MW Area, Chandigarh 160002.
- Secure Parking Solutions Private Ltd. F5-15 & 15A, 5th Floor, Pinnacle Business Park, Mahakali Caves Road, Andheri East, Mumbai 400093 …….Opposite Parties.
Complaint under Section 47(1)(a)(ii) read with Section 49(2)of the Consumer Protection Act,2019.
BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
Mr.PREETINDER SINGH,MEMBER
Argued by: Mr. Sahil Sharma, Advocate for the complainant.
Mr.Simranjit Singh Sidhu, Advocate for Opposite Parties No.1 & 2.
(Opposite Party No.3 ex parte)
PER PREETINDER SINGH,MEMBER
As averred in the complaint, the complainant visited ‘Elante Mall’ at Chandigarh on 9.10.2021 and parked his Maruti Swift Dzire car bearing Regn. No.PB11AZ4588 in the underground parking of the mall. Parking ticket was issued to the complainant in order to ascertain and compute the fare on the basis of duration of time, the vehicle remained parked there. When complainant wanted to take his car from the parking area, on account of failure of the complainant to produce the parking ticket, he was prohibited from taking the car out of the parking area, without first proving proof of ownership of the car, as he had lost the parking ticket. It is further averred that the complainant provided the requisite proof of ownership of the car, in question, but still he was made to pay Rs.200/- as an additional amount for the loss of parking ticket. The complainant paid the additional amount of Rs.200/- vide receipt, a copy of which is attached with the complaint as Annexure C-3. The grouse of the complainant is that as per terms and conditions of the parking facility provided by OP No.3, the Opposite Parties do not undertake any liability in case of any damage to the vehicle, or in case of theft of that vehicle, even when such vehicle is parked under their care in the parking area which is managed by them, for which they charge such prices and fines, then OPs have no right to charge any penalty on the loss of such parking ticket. The terms & conditions of the parking facility of Elante Mall have been appended as Annexure C-2. It is further averred that OP No.2 has complete electronic system installed at the entry and exit point of the parking premises and everything is digitalized and charges for availing parking facility are automatically assessed based on the digital system as per duration of time for which vehicle remained parked in the premises and there was no need to charge the complainant with higher amount or fixed amount on account of loss of his parking ticket. It is further averred that production of parking ticket is not essential as the OPs have installed fast-tag facility at the exit of the parking area and the vehicle having fast tag can exit the parking area without producing the parking ticket and the amount of service is assessed and deducted on the fast tag automatically. Therefore, it proves the averments that the production of parking tickets is not essential & merely for the purpose of assessing the charges for the services availed. It is alleged that levying a fine of Rs.200/- on the complainant for the loss of parking ticket is unfair trade practice on the part of the Opposite Parties. The complainant has prayed for refund of Rs.200/- alongwith interest @18% besides compensation of Rs.5.00 Lakhs for mental harassment and litigation costs of Rs.1.00 Lakhs.
2. After admitting the complaint on 9.5.2022, its notice was sent to the Opposite Parties for 27.7.2022, with a direction to file reply and evidence/affidavit within 30 days from the date of receipt of notice, with advance copy to the Counsel Opposite. However, despite due service of notice, Opposite Party No.3 did not appear and were proceeded ex parte vide order dated 27.7.2022. On the date fixed i.e. 27.7.2022, Counsel for the Opposite Parties No.1 & 2 was ready to file reply & evidence/affidavit, but as the same was not filed within the prescribed period of 30 days, and even within the extendable period of 15 days i.e. 45 days, nor any plausible reason was given on behalf of the Opposite Parties for condoning the delay of 45 days, hence, they were debarred from filing reply and evidence/affidavit alongwith documents in view of judgment of the Hon’ble Supreme Court of India in the case titled as New India Assurance Co. Ltd. Vs Hilli Multipurpose Cold Storage Pvt. Ltd. decided on 4.3.2020. However, Opposite Parties No.1&2 were directed to file written arguments, if any, on the date fixed. Subsequently, written arguments on behalf of the complainant as well as Opposite Parties No.1 & 2 were filed.
3. We have heard learned Counsel for the complainant as well as Counsel for the Opposite Parties and perused the record with utmost care and circumspection.
4. The learned Counsel for the Opposite Parties did not dispute the factum of parking of the car, in question, in the parking area and has put forth that the “Elante Mall” is managed by the CSJ Infrastructure Pvt. Ltd. and Secure Parking Solutions i.e. Opposite Party No.3 is a parking contractor managing the operation of the parking space of the Mall. The complainant used the premises of the Elante Mall for parking his vehicle in the area of the mall, and for using the space, an amount, as per the tariff, he was required to pay to OP No.3. Accordingly a receipt was issued to the complainant with certain terms and conditions, which read as under ;
- Parking of the vehicle is at vehicle owner’s risk
ii. only owner of the vehicle shall be responsible for any damage to vehicle and for theft of any articles/ valuables/ gadgets lying inside the parked vehicle.
iii. Parking management (Secure Parking Solutions Pvt. Ltd. & Elante Mall is not responsible for any damage to vehicle and for any articles/goods/gadgets lying inside the parked vehicle.
iv.Parking ticket issued at entry shall mandatorily be submitted while exiting the parking.
v.Owner of the vehicle shall produce relevant documents to prove ownership of the vehicle in case of loss of parking ticket and pay extra charges as per parking tariff.
5.. The Learned Counsel for the OPs further argued that the parking space is provided with aforesaid terms and conditions which the visitors are bound to abide by and parking the vehicle in the premises of the answering parties does not make them liable for theft or damage to the vehicle of the complainant. Also the parking space of the Mall does not in any manner construe that the mall authorities or the management team of the parking space is liable for the safeguard of the vehicles. He further argued that in case of loss of parking ticket, due procedure is followed by the management of the parking space according to the terms and conditions, whereby the onus is upon the occupant of the vehicle to prove ownership of the vehicle and produce the relevant documents and penalty charges in accordance with the tariff are also imposed. He further argued that the provisions of Section 2(49) of the Consumer Protection Act, 2019 are not binding upon the OPs as there is no unfair contract between the complainant and the penalty was imposed for loss of the parking ticket, which otherwise, was required to be produced mandatorily at the time of exit. The complainant had lost the parking receipt and the answering parties cannot be held responsible for his wrongs. Therefore, there is no unfair contract or unfair trade practice on the part of the OPs and the complainant is not entitled to any relief, as claimed in the complaint.
6. On the other hand, Learned Counsel for the complainant argued that since Opposite Parties have been debarred from filing their reply and since in this way, their defence has been struck off, they are debarred from raising any contention on facts, jurisdiction, and on merits. It was argued that there was a valid contract between the complainant and the OPs as all essentials of a valid contract are there and using of the parking facility of Elante Mall in exchange for a monetary sum fulfills the essentials of a valid contract. According to the complainant, all OPs are necessary parties and Opposite Parties No.1 & 2 cannot wriggle out of it by saying that the terms and conditions of availing the parking facility were set up by OP NO.3. To support this contention, the learned Counsel for the complainant submitted that terms and conditions of availing the parking facility clearly state ‘Elante Terms and Conditions’, secondly, terms and conditions clearly state ‘Parking Management (Secure Parking Solutions Pvt. Ltd) & Elante Mall’ is not responsible for any damage to any vehicle and for any articles etc. lying inside the parked vehicle, thirdly, the receipt which had been issued to the complainant bears the name and brand of ‘Elante Mall’ and the employees working in the parking facility wear Elante Mall uniform, and as such, Opposite Parties cannot wriggle out of their responsibility.
7. It is further contended on behalf of the complainant that Opposite Parties are charging the customers for parking inside the mall premises, when the customers do not have any other place to park their vehicle when coming to Elante Mall. On one hand, OPs claim absolved themselves of all liabilities of the damage caused to the vehicle, or to the goods inside such vehicles and the OPs are illegally and arbitrarily charging penalty from those customers who loose parking tickets while exiting parking area of the Mall. It is further contended that OP NO.2 has complete electronic system installed at the entry and exit of the parking of the premises and everything is digitalized. Charges for availing the parking facility are automatically assessed based on the digital system as per the duration of time for which the vehicle remained parked in the premises and there is no need to charge/penalize person with higher amount or fixed amount on account of loss of parking ticket.
8. It is case of the contesting Opposite Parties that in “Elante Terms & Conditions”, it is clearly mentioned that in case of loss of parking ticket, the owner shall produce relevant documents to prove ownership of the vehicle and pay extra charges. How much extra amount shall be charged, in case of loss of parking ticket, is not mentioned. In case of vehicles having Fast-Tag, the scanner on the exit automatically reads the particulars of the vehicles and the same are allowed to exit the parking area without producing the parking ticket and the amount of services is assessed and deducted on the fast-tag automatically. Similarly, data of other vehicles is also scanned automatically at the entry/exit point. Though it is mentioned in the parking ticket of the vehicle that the same is mandatory to be produced at the exit point yet there is no mention of any specific amount in the terms and conditions to be charged in case of loss of the parking ticket. In these circumstances, when complainant lost the parking ticket and produced relevant documents to prove ownership of the vehicle, charging of penalty of Rs.200/- is uncalled for. It seems that the parking ticket is being used only for claiming the charges for utilizing the parking space, and the parking Contractor is not taking any responsibility about theft of the vehicle/valuables lying in it or any damage to the vehicle, as has been mentioned in the parking receipt. Therefore, service provided by the Opposite Parties is certainly deficient, due to which the complainant suffered harassment.
9. In view of the above discussion, as there was specific condition to produce the parking ticket at the exit point and the complainant lost the same, but as the complainant was made to pay extra charges without there being any mention in the terms and conditions of the parking ticket about the amount to be charged in case of loss of the parking ticket, we allow the complaint partly and direct Opposite Parties to refund Rs.200/- charged as penalty for loss of the parking ticket besides Rs.3000/- on account compensation for mental harassment & litigation charges.
10 Certified copies of this order be sent to the parties, free of charge. Opposite Parties No.1 to 3 shall comply with the order within 30 days from the date of receipt of certified copy thereof, failing which, Opposite Parties shall be liable to pay additional amount of Rs.5000/- to the complainant, besides the above ordered amounts.
11. The file be consigned to Record Room, after completion.
Pronounced.
23.12.2022
