State Consumer Disputes Redressal Commission
Air Commodore A. Saures vs Group-4 Securitas India (P) Ltd on 25 February, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 25-02-2008 Complaint No . C-389 / 1999 1. Air Commodore A. Saures, - Complainant No.1 R/o C-205, Defence Colony, Through New Delhi-1100 24. Mr. Manish Sharma, Advocate. 2. Mrs. Sandra Fenn, - Complainant No.2 Defence Colony, New Delhi. Versus Group-4 Securitas India (P) Ltd., - Opposite Party Sorensen House, Through 10, L.S.C., Madangir, Mr. Alok Gupta, New Delhi-1100 62. Advocate. CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant No.2 is the daughter of complainant No.1 and works for Mckinsey & Company. Complainant and his wife decided to go out of station from 31.05.1999 and asked complainant No.2 to arrange for a security guard for their house during the night from 10.00 P.M. to 6.00 A.M. for one month w.e.f. 28.05.1999. OP is engaged in the business of providing security services and was providing the services to Mckinsey & Company at that time. So, complainant No.2 availed the services of OP Company who provided a guard at the residence of complainant No.1 as required w.e.f. 28.05.1999. Complainant and his wife went out of station. The house of complainant No.1 was burgled on the night between 02.06.1999 and 03.06.1999 and an FIR was lodged with the Police by a neighbour. Complainant and his wife returned to India on 05.06.1999. As per the inventory of the stolen articles prepared by complainant No.1, it was found that jewellery worth Rs. 4.00 lacs approximately and cash of Rs. 1.00 lakh had been taken away by the thieves. As per the statement of colony watchman, Mr. Ram Singh, on the night of occurrence he had noticed a man standing and smoking in the stairs at the rear of the house of the complainant No.1 and he went to inform the guard of the OPs Company, but he was found missing from C-205, house of the complainant No.1, and was seen talking to the guard stationed at C-203, Defence Colony, who was also from OP Company, but he did not take any action. The guard also failed to note that the lights in 3 rooms of the house were switched on during the night of burglary and were found as such in the morning. According to the complainants, the burglary took place due to the gross-negligence of the guard provided by the OP Company. The police has filed the case as untraced.
Complainants have claimed Rs. 5.00 lacs as the value of stolen articles and Rs. one lac as compensation.
2. The OP in its reply has denied any privity of contract with the complainants stating that OP being under contract with Mckinsey & Company provided additional service of a guard at the residence of complainant No.1 on the request of complainant No.2 who is employed with Mckinsey and the invoices were raised in the name of the company as requested by complainant No.2. On merit, any negligence on the part of the guard is denied. It is stated that the guard was posted only at the front gate of the house from 10.00 PM to 6.00 A.M. and the backdoor was always unmanned. It is denied that the burglary took place during the duty hours of the guard. It is denied that the colony watchman, Mr. Ram Singh informed the OPs guard that he had found anything unusual at the rear of the complainants house, or that the guard was found missing from the front gate of the house. As to the lights in the rooms, it is stated that the lights of three rooms were always kept switched on by complainant No.2 so that the house did not give a deserted look.
3. Complainants filed rejoinder reiterating the averments made in the complaint. Parties filed their evidence by way of affidavits.
4. In support of the claim that services of the OP were hired by the complainant for providing guard at her parents residence against payment to be made by her directly from her office, the complainant has produced and proved the following documents.
(i) Annexure P-1 is the letter dated 27-05-1999 addressed to Vinay Khetripal, which is to the following effect:-
To Vinay Khetripal, Fax No. 6980493 From Sandra Fenn Fax No. 91 11 30323611 Direct Phone No. 91 11302 3580 Extn. 1022 Date 27 May 1999 Reference your telephone conversation of today with Simme Lumb, this is to inform that I would like a guard to be posted at my parents residence C-205, Defence Coloy, New Delhi, Tel. 4622479. We would like the guard to be on duty from 10.00 P.M. every night until 6.00 a.m. the next morning for the next one month starting from Friday, 28th May 1999.
The bill for guarding duties may be sent directly in my name to my office.
(ii) P-11, Invoice dated 21-06-1999 For additional guarding services provided during the month of June 1999 as per details given below-
At C-205, Defence Colony 1 x 8 hrs. Guard (N) - Rs.
4,079.00 Add. Service Tax @ %% - Rs. 204.00 Total
-
Rs. 4,283.00
(iii) P-12, Invoice Dated 19-05-1999 For additional guarding services provided during the month of May 1999 as per details given below-
At C-205, Defence Colony 1 x 8 hrs. Guard (N) w.e.f. 28.5.99 (22 hrs) - Rs. 536.00 Add. Service Tax @ %% - Rs. 27.00 Total
-
Rs. 563.00
(iv) FIR No. 504/99 dated 03-06-1999 of Defence Colony Police Station
5. As against this the OP has produced and relied upon the contract between the Mc Kinsey & Company and the OP as the complainant was an employee of the OP Company and through this contract the service was provided to her at her fathers residence. According to the learned counsel for the OP the contract with Mc Kinsey & Company was extended to the complainant for the personal service at the residence of her father towards which bill was being raised upon the Company and therefore the complainant does not fulfill the requirement of definition of consumer. Learned counsel also contended that there is an arbitration clause in the agreement and as such instant complaint is not maintainable. Lastly that the factum of theft is also in dispute as the police has closed the case as untraced due to non-recovery of stolen articles.
6. We have accorded our consideration to the rival claims and contentions of the parties and heard the learned counsel at length. The duty of the guard was at the out door gate from 10.00 PM to 6.00 AM and the theft took place on the next day.
The report was lodged on the next day and that too also by the neighbour as the complainant was abroad.
7. As regards the loss suffered by the complainant, the complainant made some inventory later on assessing the value of loss to the tune of Rs. 5 lacs towards loss of jewellery and cash and sought Rs. 1 lac as compensation.
8. None of the contentions of the counsel for the OP cuts ice or holds water. As regards the relationship between the complainant and the OP, that is of consumer and service provider. Merely because initial contract was between the OP and the Mc Kinsey Company where the complainant is employed does not oust the complainant as a consumer as the direct beneficiary of the contract was the complainant and section 2(1)(d) of the Consumer Protection Act, 1986 includes direct beneficiary of the contract within the definition of consumer.
9. It was residence of the complainants father which were to be guarded and therefore OP had extended the services at the residence of her parents by specifying that additional charges would be paid by her. Merely because OP-company raised bill upon the Company does not disentitle the complainant from claiming compensation as to the loss suffered on account of deficiency in service. The services of providing security by security agencies are availed by a person or organization or company at their official premises or at the residence of their employees for the security of their house and household goods.
10. In the instant case theft report was lodged on the next day morning by the neighbour that the house was found burglered as the complainant was away to a foreign land and returned after some days and thereafter filed inventory of the stolen articles. Merely because the police had filed a report as untraced does not mean that the theft did not take place. The factum of theft having taken place is supported by the report of the police as well as the statement given by the neighbour to the police. Merely because the stolen articles could not be recovered does not mean that theft did not take place.
11. The services of the OP were availed for the security at the residence and therefore the quality of service is to be tested on the anvil of definition of deficiency as defined by section 2(1)(g) of the Consumer Protection Act which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by any person in pursuance of a contract or otherwise in relation to any service.
12. The complainant was not only a consumer of the OP in respect of the services made available at the residence of her father but there was deficiency in service on the part of the OP in not securing the premises of the complainant. The circumstance of theft and burglary followed by report with the police is itself evidence to show deficiency on the part of the OP.
13. As regards compensation, there was no term of contract between the complainant and the OP as to latters liability to pay the cost or indemnification of the actual loss as is indemnified by the Insurance Company and therefore the claim of the complainant as to the inventories of the goods filed and produced by her on account of stolen goods cannot be allowed.
Merely because there was no such term of contract does not mean that complainant is not entitled for any compensation as to the mental agony, harassment or loss suffered by her due to the negligence of the OP.
14. As regards the objection as to the maintainability of the complaint in view of the of arbitration clause, the Supreme Court has observed in case after case, that the remedy under the Consumer Protection Act is in addition to and not in derogation of the provisions of any other law for the time being in force. Reason is simple. Consumer Protection Act alone provides for compensation on account of negligence or deficiency in service and the word compensation encompasses in its fold all the sufferings like mental agony, harassment, physical discomfort, injustice and any other kind of sufferings suffered by the consumer due to the negligence of the opposite party. In this regard observations of the Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh are quote worthy and are as under:-
Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 Supreme Court Cases 65 The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
15. As regards the arbitration clause the Supreme Court in Fair Air Engieners Pvt. Ltd. And Anr. Vs. N.K. Modi, 1996 (6) SCC 385 has specifically held that even if there is an arbitration clause the Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. Relevant observations of the Supreme Court in the aforesaid case is as under:-
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the act. It is a matter of discretion. Considered from this perspective, we hold that though the district Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceeding or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
16. It is well settled law that the parties are always governed by the terms of contract. No party can go beyond the terms of contract. That is why concept of reasonable compensation comes into play.
17. Taking over all view of the matter and nature of deficiency on the part of the OP and there being no term of contract like the insurance policy as to the indemnification of the actual loss, we deem that a lump sum compensation of Rs. 25,000/- besides Rs. 5,000/-
as cost of litigation would meet the ends of justice.
18. Payment shall be made within one month from the date of receipt of this order.
19. Complaint is disposed in aforesaid terms.
20. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to record room.
21. Announced on 25th February 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj