Date of Filing:28.08.2020

Date of Disposal:28.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainant files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP to pay Rs.3,00,000/- towards loss of vehicle from their possession, damage, mental agony caused to the complainant and such other reliefs.

2.   The following are the complaint's key facts: 

This is the case of the complainant that the complainant is owner ofKTM RC 200 bike bearing registration No.KA-01-HL-3530. On 03.08.2019 around 6’0 clock complainant visited OP-1 mall to watch movie, he had also parked his bike in the barking area belongs to OP-1 and also collected parking ticket from the OP and also agreed to pay parking service fee. Subsequently, on the same day when thecomplainantreturned to the parking area around 10’ o clock to collect his two wheeler after watching movie in the OP-1 Mall, to hisutter shock he could not find his bike in the parking area. When the same was intimated to the OP-1,they behave in careless and negligent manner evenon lodging complaint to the OP they did not take any steps to search and to find the said vehicle which was parked in the parking area of OP-1. The complainant being aggrieved by the act and action of OP-1has also lodged police complaint before the jurisdictional police and FIR is also registered as per document-4 produced. The complainant has made best efforts and also approached OP-1 for the settlement of his claim for the loss(Theft) of said vehicle as the complainant has parked his two wheeler in the parking area of OP-1 and it is bounden duty of the OP-1 to take care of the vehicle during parking period. The request of the complaint was neithercomplied nor settled the claim as prayed by the complainant. Aggrieved by the act of the OP the complainant has no other optionand he was forced to file the present complaint and sought for the relief of claim of Rs.3,00,000/- towards hardship, damage from the OP.

3. Notice to OP-1 & 2 duly served. OP-1 remained absent and  OP-1 has been  placed ex-parte. OP-2 represented by the counsel, they have filed version and affidavit  in support of their defence and relevant documents to support their contention.

4.  The complainant filed chief-examination affidavit along with relevant documents in support of his contention.

5.  Heard arguments. The matter is reserved for order.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1                :       Affirmative

Point No.2                :       As per final order

REASONS

8. POINT NO.1:-  From the perusal of the complaint, chief-examination affidavit, it is clear that the complainant is owner of  KTM RC 200 bike bearing registration No.KA-01-HL-3530. On 03.08.2019 around 6’0 clock complainant visited OP-1 mall to watch movie, he had also parked his bike in the barking area belongs to OP-1 and also collected parking ticket from the OP and also agreed to pay parking service fee. Subsequently, on the same day when the  complainant  returned to the parking area around 10’ o clock to collect his two wheeler after watching movie in the OP-1 Mall, to his  utter shock he could not find his bike in the parking area. When the same was intimated to the OP-1,they behave in careless and negligent manner even  on lodging complaint to the OP they did not take any steps to search and  to find the said vehicle which was parked in the parking area of OP-1. The complainant being aggrieved by the act and action of OP-1  has also lodged police complaint before the jurisdictional police and FIR is  also registered as per document-4 produced. The complainant has made best efforts and also approached OP-1 for the settlement of his claim for the loss (Theft) of said vehicle as the complainant has parked his two wheeler in the parking area of OP-1 and it is bounden duty of the OP-1 to take care of the vehicle during parking period. The request of the complaint was neither complied nor settled the claim as prayed by the complainant. Aggrieved by the act of the OP the complainant has no other option  and he was forced to file the present complaint and sought for the relief of claim of Rs.3,00,000/- towards hardship, damage from the OP.

9. Even though  notice is duly served to OP-1, by remaining absent and they have  not chosen to contest the complaint on merits and they have been placed exparte.

10. OP-2 have filed written version and also filed chief examination affidavit in support of their defence. They denied entire complaint allegations as against them and also denies any deficiency on their part. The specific contention is they are  only supplying software to the OP-1 mall to run the parking business. They have entered agreement with OP-1, they are providing software to the parking  area of  OP-1 and they are also involved in the business of providing technical assistance as well as maintenance of the software supplied to OP-1 which si provided by them. It is specific contention of the OP-2 that there is no privity of contract between the complainant and the OP-2 with regard to the parking service to the complainant, to the vehicle which is parked by the complainant in the OP-1 mall. By contending the same they pray for dismissal of complaint on merits as they are neither the necessary party nor involved in the business of parking belong to OP-1 Mall  by agitating the same they pray for dismissal of the complaint against them.

11. In view of the above submission of OP-2 by perusing the documents produced by complainant, it is found that the OP-2 being the software provider and also looking after maintenance of software of  OP-1 parking area. It appears to be there is no transaction between complainant and           OP-2. Being a software developer and provider and also looking after any technical issue in the said software they are maintaining the same by rectifying any technical defect in the software which is provided by them. In view of this discussion as the complainant had filed the complaint  as against OP-2 is not maintainable. When there is no privity of contract between them and OP-2,is  not at all the service provider to the complainant and they have no business or transaction with the complainant. When such being the case OP-2 is considered as a  stranger to the said transaction and is not necessary party in the complaint. Such being the case the complaint against OP-2 is liable to be dismissed for the above reason.

12. The chief examination affidavit of the complainant is reproduced entire complaint averments. It is crystal clear from the fact of the case that the complainant on 03.08.2020 visited the OP-1 mall to watch the movie and during the course he had parked his KTM RC 200 bike  in the parking area and also collected parking ticket from the OP as per annexure document produced. The complainant also produced annexure document-D1, D3 and D4 and FIR copy and D5 is the copy of the legal notice issued by the complainant. From the perusal of these documents and annexure produced  the commission observed that during the course, complainant visited OP-1 mall and he parked KTM black colour bike in the parking lot of the OP-1 Mall . on observation of annexure documents both pertaining to the ownership of the bike and also for having parked his vehicle in the said mall. After watching the movie when the complainant returned to the parking area and searched for his bike and he found that it is missing in the parking area. This act of the OP-1 clearly shows that during the course of their custody of the complainant bike from the OP-1 parking slot they have rendered careless and negligent service to the complainant. The complainant being the visitor and also consumer of OP-1 Mall as well as parking lot. It is bounden duty of the OP-1 to look after the complainant vehicle  in their parking area. When the parking ticket is issued by OP-1 mall, they have agreed and entered into a contract of  giving service and also when the complainant agreed for the  same and accepting the service of the OP-1. He also agreed to pay the service charges for getting service from the OP-1. Annexure document-10 vehicle ticket which is issued by OP-1 of these events and series of acts which is alleged by the complainant appears to be proved in so far as against OP-1. It is  a clear case of their negligence and deficiency in service which is rendered by the OP-1 mall during the course of service to the complainant. For their negligent and careless service they are held liable to pay the legitimate claim of the complainant. The conduct of OP-1 is to be termed as deficiency in service on their part and any loss and damage to the complainant from the OP shall be liable to pay the claim of the complainant for the alleged deficiency of service. On consideration of the facts and circumstances in the case, the complainant has not produced any document to show the price of the vehicle which was purchased in the year 2015 to pay the claim amount of Rs.3,00,000/-. When such being the case, the commission observed that, the theft of the vehicle in the year 2019, nature of use of vehicle can be looked into and OP1 is held liable to pay claim of Rs.1,62,000/- being 10% depreciation as the vehicle purchased on 2015 till 2019.  Being used by the complainant the complainant is entitled for claim of  Rs.1,06,288/- with other reliefs. Such being the case   OP-1 is held liable to pay the claim of the complainant along with other reliefs granted to the complainant.

13. In view of the discussion and on perusal of the complaint averments and the contention of the parties, it is held that the OP-1 is liable to refund a sum of Rs.1,06,288/- along with other reliefs granted in the complaint. In view of the above discussion, the Point No.1 we answer Partly in Affirmative.

14. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint is allowed in part.

2. The OP-1 is directed to refund Rs.1,06,288/- along with interest at the rate of 8% p.a. from the date of payment  till refund is made  to the complainant.

3. The OP-1 further directed to pay a sum of  Rs.10,000/- as compensation for deficiency and a sum of Rs.5,000/- towards litigation charges. OP-1 fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall carry interest at 6% p.a. for non-compliance of the order from the date of order till payment is made.

4. Complaint against OP-2 is hereby dismissed.

5. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 28^th April 2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Narayana swamy.K.V.-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-2 by way of affidavit: Sri Prashanth Chandrashekaran- Who being OP-2

Documents produced by the OP-2:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*