State Consumer Disputes Redressal Commission
Beyond Coffee Shop vs 1. M/S. Ad Age Outdoor Advertising Pvt. ... on 11 March, 2022
1
BEFORE THE TELANGANA STATE CONsUMER DISPUTES REDRESSA
cOMMISSION:HYDERABAD
FA NO.117/2015 AGAINST Cc No.331/2012 ON THHE
FILE OF DISTRICT FORUM-II,HYDERABAD.
Between:
Beyond Coffee Shop,
Rep. by its Proprietor P.Vivekananda Rao,
Road No.36, Jubilee Hills,
Hyderabad -33.
(as per complaint).
Beyond Coffee Shop
Proprietor: M/s.Gayatri Sri
Hospitalities Private Limited
Represented by its Director
Mr.B.Sudheer, Road No.36
Jubilee Hills, Hyderabad - 33.
... Appellant/
Opposite party
And
1.M/s.Ad.Age Outdoor Advertising
Pvt. Ltd., represented by its Executive Director
Mr.Syed Musuraff Mehdi,
S/o.Late Mr.S.Y.Nawab, aged about
35 years, Occupation: business,
R/o.Plot No.181/A, Road No. 12,
MLA Colony,
Banjara Hills, Hyderabad.
2. M/s.TATA AIG General Insurance
Co. Limited, represented by its Manager
(Claims) Sri Jayanth Roy, S/o.D.K. Roy
Aged about 51 years, 4th Floor, Block A,
My Home Tycoon, Kundanbagh,
Begumpet,
Hyderabad-16. Respondents/
Complainants
Counsel for the Appellant Mr.M.R.B.Manikandan
Counsel for the Respondents Mr. Katta Laxmi Prasad.
cORAM: Hon'ble Sri Justice M.S.K. Jaiswal, President.
And
Hon'ble Smt. Meena Ramanathan, Lady Member
FRIDAY, THE ELEVENTH DAY OF MARCH, TWO THOUSAND TWENTY TWO.
Order:
1. This is an appeal filed by the appellant/opposite party against the order passed in C.C.No.331/2012 dated 4.6.2015 on the file of District Consumer Disputes Redressal Forum-I, Hyderabad.
Ror the sake of convenience, the parties are relerred to as arrayea 2 &2 n ( Appellant is the opposite party and respondents 1 are the complaint.
complainants 1 & 2).
The brief facts as stated in the complaint:
3. no.AP 9 BP 5200 of Maruthi Swift Car bearing Complainant no.1 is the owner The complainant insurer of the said car.
and the complainant no.2 is the of attorney no.2 as a special power no.1 is represented by the complainant c o n c e r n and rep. by its Proprietor and holder. Opposite party is a proprietary business.
engaged in the hotel On 13.8.2010 at about 2.30 p.m., nephew of Syed Mushref Mehdi the opposite party Executive Director of complainant no.1 company went to his friends and handed over the vehicle to the valet for restaurant along with When he came out after 45 issued token for the same.
parking and he was a
valet that one person claiming to be friend of
minutes he was informed by the
the car keys without
his asked for the car keys and they have handed over
the car. Two
demanding for token and the said unknown person drove away
after the search for the vehicle, Executive Director of the complainant
days
with Jubilee Hills Police Station vide FIR
no.1 lodged a police complaint
was recovered by the police in
No.351/2010 dt.16.8.2010. The said vehicle accidental condition and the vehicle was entrusted to M/s.Varun Motors (P) incurred Ltd. for carrying out the repairs and a sum of Rs.3,02,4 11/- was also informed about the theft of towards repair charges. The opposite party no.2 being insurer of the the car to the complainant no.2. The complainant as per terms and conditions of vehicle settled the claim of the complainant no.1 the policy. After settlement of the claim, the complainant no.2 issued a legal notice to the opposite party demanding to pay a sum of Rs.3,02,411/- towards the loss incurred in respect of Maruti Swift Car for which reply legal their liability stating that the valet parking is a notice was given denying complementary service and they are not responsible for theft, loss or damage to the vehicles. It is submitted that due to sheer negligence of the opposite party stolen and taken out by some unauthorized person and staff, the vehicle was is deficiency of service on the part of the opposite party and it as such there cannot shirk the responsibility of the safety of the car. Hence, the complaint to pay Rs.3,02,411/- with interest @ seeking direction to the opposite party 12% p.a. to the complainant no.2 and to pay Rs.25,000/- towards damages and costs.
The opposite party filed written version denying the allegations made in
4. the complaint and contending that the complainant no.1 is a private limited company engaged in commercial and business activities for the subject vehicle is also in the name of making profit and the said business activities and hence the company being used for its purview of the complainant no.1 does not fall within the definition of and in view of the Consumer under the Consumer protection Act same, the complaint is liable to be dismissed. It is further submitted that the complainant no.1 has not paid any consideration parking of his car to the opposite towards party and the valet complementary service without any consideration as parking provided is a slip itself and as the said service is mentioned in the valet free of cost, the maintainable. present complaint is not It is submitted that as the complainant no.2 claims to be the the agent ot complainant no.1, it cannot prosecute this case on its own and can prosecute as an agent or representative of the complainant no.1 and hence filing of the complaint by complainant no.2 as an independent complainant along with complainant no.1 is wrong and it should have been the Principal represented by its agent or power of attorney. It is submitted that the valet parking contract was entrusted to one M/s.Expert Security and Valet Services to whom the complainant no.1 might have handed over the vehicle and the said firm is responsible for receiving, protecting and handing over the vehicles to the customers and this opposite party is not at all responsible for any parking related issues. The opposite party prays to dismiss the complaint with costs.
Before the District Forum, on behalf of the complainants, Mr.Jayanth Roy, Manager of complainant no.2 Ins.Co. filed Chief Affidavit and Exs.Al to A12 are marked on behalf of them. Affidavit Evidence of Mr.B.Sudheer, authorised signatory of the opposite party filed.
The District Forum partly allowed the complaint directing the opposite party to pay a sum of Rs.3,02,411/- to the complainant no.2 along with interest @ 6% p.a. from the date of complaint till the date of realisation and to pay a sum of Rs.5,000/- towards costs to the complainant no.2.
6. Aggrieved by the order of the District Forum, The appellant/opposite party preferred this appeal with the following grounds:
The Forum below ought to have noted that the vehicle is being used by respondent no.1/complainant no.1 - a private limited company, engaged in commercial activities and as such respondent/complainant no.1 does not fall within the purview of the definition of Consumer' under the C.P.Act.
.The Forum failed to consider the fact that the valet
parkino
was entrusted to M/s.Expert Security and Valet Services
and the said firm is responsible for
receiving, protecting and
handing over the vehicle to the customers.
The Valet
Parking is a
complementary service and free
service provided by the appellant/opposite party and conditions governing the facility have been mentioned on the parking slip. The Forum below failed to appreciate the terms and conditions governing the valet parking that have been clearly mentioned at the back of the parking slip.
7. Heard both sides and perused the entire material available on record.
8. The point for consideration is whether the District Forum impugned order passed by the is liable to be confirmed, set aside, modified or interfered with in any manner?
9. As per the records, the limited company and the respondent/complainant private no.1 is a subject vehicle is registered in the name of the company and used for its business activities.
The cause of action arose on
13.8.20100 when the vehicle was entrusted to
Valet Parking of
appellant/opposite party and the theft of the vehicle was committed while in
the custody of the
appellant/opposite party. Subsequently the vehicle was
traced and handed over to
M/s.Varun Motors (P) Ltd. for carrying out the
repairs. The
respondent/complainant no.2 -Insurance Company paid the amount claimed by the respondent/complainant no.1 and complainant no.1 issued a Letter of Subrogation and Special Power of Attorney to the respondent/complainant no.2 who has issued a notice to appellant/opposite party and fled the present complaint.
10. The grounds urged by the appellant/opposite party stating that the said vehicle was used for commercial activities and as such does not fall within the purview of the C.P.Act is not justified. The appellant/opposite party is in the hotel business and have provided the free valet parking facility to enhance their business and have not denied this facility to their customers. Valet Parking is a service facility offered by some restaurants, stores & other businesses and this service either requires a fee to be paid by the customer or is offered free of charge by the establishment. In such scenario, the a appellant/opposite party is not justified in excluding its liability for negligence contending that the vehicle was used for a commercial purpose. It was not handed over to their establishment where this was notified to the customer.
5iven that such vehicles would normally be parked in the hotel's own parking facility, the Valet Service is required to monitor and ensure safe custody of the vehicle.
11 The facts that conclusively stand established and which are admitted finds negligence of M/s.Expert Security and Valet Services hired by the appellant/opposite party. At the cost of repetition it can be said that the appellant/opposite party has a contract with M/s.Expert Security and Valet Services, who were entrusted with the responsibility of securing the vehicles of the customers who visit their hotel. There is contract of agency in between the hotel and the said agency. Even according to the appellant/hotel there is negigence on the part of the agent of the appellant/opposite party who has handed over the vehicle to a person who has not produced the token which is a sin a qua non for handing over the vehicle. Manifestly, the vehicle was allowed to be taken away by the Expert Security Services personnel by a person who was not authorized. Merely if a person comes and says he is a friend of the person who has actually handed over the vehicle for safe custody, the keys cannot be thus released. The vehicle was entrusted with them in the hope that it will be safe. When the agency of the appellant/opposite party conduct themselves in such a manner, the appellant/opposite party cannot be heard saying that they are not liable to the said acts of the agent. All the consequences that followed thereafter are due to the said act of the agency of the appellant and thus the appellant/hotel is held to be liable.
12. The vehicle was insured with respondent/complainant no.2 under policy no. 0150814237 00 and was satisfactorily repaired by M/s. Varun Motors. An amount of Rs.3,02,411/-. was approved and the claim amount settled after receipt of original bills as evidenced vide Ex.A6. The Letter of Subrogation & Special Power of Attorney was issued vide Ex.A7 whereby the respondent/complainant no.2 was duly subrogated the rights and remedies in consequence of or arising from loss/damage to the said vehicle. In pursuance of the respondent/complainant no.2 having paid the aforementioned amounts, all rights & remedies against all third parties whomsoever is liable thereof was duly subrogated.
13. Theappellant/opposite party is denying their liability contending that the said valet services are complementary and that they are in no wayy involved in the activities. Though valet parking may be offered as an optional or complimentary service, the customer has an implicit hotel would ensure expectation that the adequate safety the vehicles. In this regard we refer to of 6 the judgement of Hon'ble Supreme Court in Civil Appeal No.8611/2019 Mahal Hotel vs. United ndia hs. Co.Ltd. 14th Nov.2019 wherein it Tay was categorically stated that "the standard of care required to be taken by the hotel as a bailee u/s.151 is sacrosanct and cannot be contracted out of. The disclaimers printed on the parking slip are subject to the appellant/ opposite party discharging the initial burden of proving that it fulfilled the standard of care imposed under Sec.151 of the Contract Act. The fowner's risk' clause in the parking token will not come to their rescue.
14. After obtaining the letter of Subrogation & Special Power of Attorney, the respondent/complainant no.2- insurance company is entitled to file the claim and recover the amount from the person/company who was at tault.
Subrogation is the process that allows the insurer to recoup costs from the "At fault" company.
Policy holders benefit from subrogation, since it keeps
premiums low and
helps insurance companies settle claims quickly. This is further supported by the judgement cited in Economic Transport Organization, Delhi vs. Charan Spinning Mills Put. Ltd & anr.S.c.133( 17th Feb,2010) wherein the following observation is relied upon:
"The equitable assignment of the rights and remedies of the assured in favour of the insurer implied in a contract of indemnity is known as , subrogation".
This doctrine of subrogation enables the insurer to step into the shoes of the assured and enforce the rights and remedies available to the assured.
In view of the aforesaid discussion, we find no cause to interfere with the well reasoned order of the District Forum.
Order of the District Forum does not suffer from any illegality to interfere with. There are no merits in the appeal.
15. In the result, this appeal is dismissed. Order of the District Forum is confirmed.