State Consumer Disputes Redressal Commission
Shree Krishna Footwears vs Chola Ms General Insurance Co. Ltd. & ... on 30 September, 2024
CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 11.10.2022
Date of hearing: 29.07.2024
Date of Decision: 30.09.2024
COMPLAINT CASE NO.- 167/2022
IN THE MATTER OF:
SHREE KRISHNA
FOOTWEARS
F-201-202, DSIDC, BAWANA
DELHI-110039
THROUGH ITS PARTNERS,
MS.SAVITA GARG & MR.SACHIN GOEL
(Through: Sanjeev Mangla, Advocate)
...Complainant
VERSUS
CHOLA MS GENERAL INSURANCE CO. LTD
PLOT NO-6,1st FLOOR, NEAR METRO PILLAR NO.81
MAIN PUSA ROAD, KAROL BAGH
NEW DELHI-110005
THROUGH ITS DIRECTORS
(Through: N.K. Chauhan, Advocate)
... Opposite Party No. 1
KAWATRA TENT & CATERERS PRIVATE LIMITED
5/107-108, SUBHASH NAGAR
RAJOURI GARDEN, NEW DELHI-110027
THROUGH ITS DIRECTORS
(Through: Lovee Tyagi, Advocate)
... Opposite Party No. 2
ALLOWED PAGE 1 OF 9
CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Sanjeev Mangla, counsel for the Complainant. (Email:
[email protected])
None for the OP No.1
Ms. Lovee Tyagi, counsel for the OP-2 (Email:
[email protected])
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present complaint has been filed by the Complainant before this Commission alleging deficiency of service and unfair trade practice on the part of Opposite Parties and has prayed the following reliefs:
a) Allow the present consumer complaint and declare the opposite parties have committed unfair trade practices and deficiency in service; and Quash the illegal and arbitrary repudiation of the claim by OP-1 vide letter Dt.
22.04.2022 and declare the claim of the complainant as valid and payable claim;
b) Direct the opposite parties, joint or severally, to immediately pay the claim amount of Rs. 51,04,033-/ (Rs. Fifty One Lac Four Thousand Thirty Three) along-with interest @ 18% p.a, thereon, from the date of the repudiation of the claim, till actual date of payment:
c) Direct the opposite parties to pay the litigation cost & charges including pleader fee incurred by the Complainant:
d) Direct the opposite parties to not to adopt such kind of ALLOWED PAGE 2 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 unfair trade practices in future;
e) Pass such order/order(s) as this Ld. Commission deems fit and proper in the facts and circumstances of the present case.
2. The essential facts relevant to the adjudication of the present complaint are as follows: The Complainant purchased a motor insurance policy for his vehicle, a Toyota Fortuner (registration no. DL10-CL-0609, 2WD 2.8L AT, Model: 2018), from Opposite Party No. 1. This policy, bearing No. 5573/97556901/000/00, provides coverage against theft, accidents, third- party claims, and other perils, with a validity period from 07 July 2021 to 06 July 2022. The total premium paid for the policy was Rs. 76,193 (Rupees Seventy-Six Thousand One Hundred Ninety-Three). In addition to the motor insurance policy, the Complainant purchased optional add- ons for consumables, nil depreciation, key protection, engine protection, and return to invoice.
3. On 06 December 2021, the Complainant attended a wedding at Golden Paris, Kwatra Tent, Lawn-2, Shivaji Enclave, Raja Garden, Delhi-110027 (hereinafter referred to as "the Venue"), organized by Opposite Party No. 2, which provided a comprehensive package for tent services, catering, decoration, parking, and security.
4. The Complainant arrived at the venue around 21:45 and handed over the vehicle to the valet parking attendant, receiving a parking token (No. 5212) in return. After approximately two hours, when the Complainant requested the valet parking manager to retrieve the vehicle, they were informed that the vehicle was missing. The Complainant took the original key from the parking manager, who then escorted the Complainant to the office of Opposite Party No. 2. There, Mr. Parveen Kawatra, the director of Opposite Party No. 2, assisted in contacting the local beat officer. An FIR was subsequently lodged on 07 December 2021, bearing No. 035152, ALLOWED PAGE 3 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 under Section 379 for theft. The Complainant also filed a theft claim with Opposite Party No. 1, referencing claim No. CLM97556901/211717.
5. On 14 December 2021, a surveyor/investigator visited the Complainant's premises to collect the original claim form along with all other required documents. The surveyor also recorded statements from the Complainant.
6. Despite the passage of significant time without any communication from Opposite Party No. 1 regarding the claim status, the Complainant approached Opposite Party No. 2 to inform them of their liability for deficiencies in service. As the organizer and manager of the wedding ceremony, Opposite Party No. 2 is responsible for the safe and proper management of parking and the safety of guests and their belongings. However, they failed to fulfill these responsibilities, as the parking and security systems provided were inadequate, rendering Opposite Party No. 2 liable for deficiency of services under the Consumer Protection Act, 2019.
7. That the Complainant received a letter dt. 22.04.2022, from the Opposite Party No.1, repudiating the insurance claim on the ground of alleged breach of warranty No. 4, which reads as "the insured shall take all reasonable steps to safeguard the vehicle form loss or damage and to main it in efficient conditions and the Company shall have at all the times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown."
8. That aggrieved by the above circumstances the complainant has filed the said complaint against Opposite Party No.1 and Opposite Party No.2 under Section 47 of the Consumer Protection Act, 2019.
9. The Opposite Party No. 1 has contested that it was gross negligence on the part of the Complainant and that there was a contract of bailment between OP-2 and Complainant in which case the benefits/coverage of the ALLOWED PAGE 4 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 insurance policy ipso facto ceases to operate.
10. The Opposite Party No. 2 has contested that there was no privity of contract between the Complainant and Opposite Party No.2 and that the parking services were not provided by Opposite Party No.2, it was to be arranged by the customers.
11. We have perused the material available on record and heard the counsel for both the parties.
12. The first issues before us Whether a contract of bailment existed between the Complainant and Opposite Party No. 2 under Section 148 of the Indian Contract Act.
13. The section 148 of Indian Contract Act reads hereunder:
"A 'bailment' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'."
14. In the case of Taj Mahal Hotel v. United India Insurance Company Ltd.
& Ors. (2020) 2 SCC 224, the Hon'ble Supreme Court held that "In view of the foregoing discussion, we hold that the consumer complaint in consideration is maintainable as it was filed by the insurer as a subrogee, along with the original owner as a co- complainant. Further, we find that strict liability cannot be imposed on hotel owners in respect of loss of or damage to vehicles of their guests. Instead, the rule of prima facie negligence should be adopted. Applying this rule to the present case, it is clear that the Appellant has not explained why its failure to return the vehicle to Respondent No. 2 was not on account of fault or negligence on its part. Thus, liability should ALLOWED PAGE 5 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 be affixed on the Appellant-hotel due to want of the requisite care towards the car bailed to it. The instant appeal is dismissed accordingly."
15. In the case of Sheik Mahamad Ravuther v. The British Indian Steam Navigation, AIR 1950 Mad 74, the court rendered the following decision:
"In this case, goods were entrusted to the bailee (the British Indian Steam Navigation) for safekeeping. However, due to negligence on the part of the bailee, the goods were damaged. The court held that the bailee cannot contractually exclude or exempt themselves from the minimum standard of liability through an exemption clause or notice. The rationale behind this decision is that a bailee cannot evade their basic duty of care by simply including an exemption clause in the contract. By allowing such exclusion of liability, the standard of care would be reduced, and customers would be left without any remedy in cases of negligence."
16. Upon perusal of the above judgments, it is evident that a contract of bailment exists between the Complainant and Opposite Party No. 2. Opposite Party No. 2 cannot evade responsibility for the deficiencies in service and negligence they exhibited by claiming they did not hire valet parking services. When an event such as a wedding is organized, the security and parking services fall under the purview of the event management company. A reasonable person attending a wedding would entrust their vehicle to the valet parking service, confident that the event management has made adequate arrangements. Simply providing parking space does not absolve Opposite Party No. 2 of their liability; they have an inherent duty of care toward the vehicle.
14. The next issues before us Whether Opposite Party No. 1 is liable to pay ALLOWED PAGE 6 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 the coverage under the Consumer Protection Act, 2019 .
15. There is no doubt that the Complainant has suffered a loss of the vehicle. It is essential to determine who is responsible for compensating the customer. Opposite Party No. 1 is liable to pay the Complainant, as they must fulfill their obligations as the insurer, especially since the Complainant has paid a premium of Rs. 76,193.
16. There was no breach of Warranty No. 4. A reasonable person attending a wedding would take appropriate steps to care for their vehicle, which would typically involve entrusting it to valet parking services rather than parking it on the roadside themselves. The Complainant was not aware that the car would be parked on the street, and holding him responsible for not taking reasonable precautions would be unjust. Therefore, the Complainant exercised all reasonable care on his part and did not violate Warranty No. 4 of the policy.
17. Therefore, the insurance company has to pay the total amount according to the norms of the policy as stated in the case of total loss of the vehicle as the complainant has insured in the past for the same as an addition to the existing policy and not to give the claim amount would be gross negligence on the part of the insurance company.
18. In a case titled as Reliance General Insurance Company Ltd vs. Sharwan Chhajer & Ors., Revision Petition no. 1259 OF 2016 "the insured's vehicle got stolen from the custody of the service center's custody and the insurer repudiated the claim on the grounds that there was a contract of Bailment between him and the workshop, therefore the claim is not payable, secondly, there is a breach of condition no. 4 of the policy, as the keys of the vehicle was kept in an open place, the insurance company in their support cited the case of "The New India Assurance Co. Ltd. & Anr. Vs. The Delhi Development Authenty & Ors, AIR 1991 Delhi 298", ALLOWED PAGE 7 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 "the Hon'ble NCDRC set aside the contention of the insurance company of the insurance company by holding that "the defendants were responsible for the safety of the truck which had been stolen from the aforesaid parking site. Reference in this regard was made to Section 148 of the Indian Contract Act. The aforesaid judgment however, is of no help to the petitioner company. Nothing prevents the petitioner from reimbursing the complainant and then claiming the said amount from the Regent Automobiles Put. Ltd., enforcing the alleged liability of the Bailee under the provision of the Contract Act. But, it cannot be said that the claim lodged by the complainant arose out of the contractual liability between him and the workshop."
19. Considering the above judgment, this court concludes that the insurance company is liable to pay the amount claimed by the Complainant. The Complainant can subsequently pursue recovery from Opposite Party No. 2 through a suit for subrogation as a subrogee.
20. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party No.1 to pay Rs. 46,04,033/- (fourty six lakhs four thousand thirty three) which is the latest on-road cost of the vehicle along with an interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date of repudiation of claim till 30.09.2024 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party No.1 pays the entire amount on or before 30.11.2024; C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.11.2024, the entire ALLOWED PAGE 8 OF 9 CC/167/2022 SHREE KRISHNA FOOTWEAR VS CHOLA MS GENERAL CO. LTD.& ORS. D.O.D.: 30.09.2024 amount is to be refunded along with an interest @ 9% p.a. calculated from the date of repudiation of the claim by the Opposite Party No.1 till the actual realization of the amount.
29. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party No.2 is directed to pay a sum of:
A. Rs. 3,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
21. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
22. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
30.09.2024 LR-SM ALLOWED PAGE 9 OF 9