B. Datta, Senior Advocate vs Management Of State Owned Ashoka Hotel And Anr.

COMPLAINT was filed, inter alia, alleging that the complainant is a Senior Advocate practising in the Supreme Court and High Courts in India and had been Additional Solicitor General of India. Opposite party No. 1 is one of the hotels of opposite party No. 2. 7th General Assembly Session of Asia Pacific Lawyers Association was held at Ashoka Hotel, New Delhi from September 26 to 28, 1998 and presence of the complainant being the Chairman of organizing committee, was required at the hotel throughout the said period. It was alleged that on 28.9.1998, Shri Ram Jethmalani, the then Union Minister for Urban Development and a prominent Senior Advocate hosted a dinner on the occasion of valedictory address to the delegates and office bearers of said Association at the convention hall of the hotel. Complainant reached the hotel at about 9.15 p.m. in his Maruti Esteem Car, 1997 model, bearing registration No. DL6D -2904 to attend the dinner. Custody of the car with the keys was given to the security staff at the entrance porch for safe custody and parking of the car. Complainant was given token No. 27. After attending the dinner, complainant returned at the entrance porch around 10.30 p.m. and gave the token to the security staff to bring back the car to the entrance porch. However, the security staff who had gone to bring the car came back after about 25 minutes without the car and the keys. Complainant made a complaint in writing to Gurdas Mann, Chief of Security Staff about missing of the car. After about an hour when the complainant was still standing in the porch of the hotel, he received an anonymous call that one Ram Kishan Tyagi and other security staff were involved in the theft of the car. Cellular telephone bearing No. 9811027125 was kept in the car. Some important papers pertaining to various legal matters which the complainant was holding, were also kept in the car. FIR of the incident was lodged with the police. Complainant alleged that he is a consumer and hotel is the service provider. Complainant got a legal notice dated 16.10.1998 served on the opposite parties to which reply dated 10.11.1998 was sent on behalf of opposite party No. 1. Attributing deficiency in service, the complainant in para No. 16 of the complaint demanded the amounts on various counts as follows: JUDGEMENT_8_LAWS(NCD)9_2009.htm

DIRECTION was sought to be made to opposite party No. 1 to pay the said amount to the complainant.

OPPOSITE parties contested the complaint by filing a joint written version. It was not disputed that 7th General Assembly Session of Asia Pacific Lawyers Association was held at Ashoka Hotel from September 26 to 28, 1998 and on 28.9.1998, Shri Ram Jethmalani had hosted a dinner as alleged. It was alleged that immediately on getting information regarding missing of the car, the chief security officer visited PS Chanakyapuri around 1.00 a.m. on 29.9.1998 and he extended full support in lodging the FIR. Complainant was provided a vehicle by the hotel to P. S. Chankyapuri and from the police station to his residence. It was pleaded that the hotel does not charge any separate fee for providing parking space in the hotel premises. Car Parking Attendent (CPA) is appointed to help the visitors to park their cars properly in the parking space. Keys of the car are kept in an open box and tokens are issued. It was clearly mentioned on the token that, no responsibility of the management regarding any theft/damage/loss''. It was stated that the theft of the car undoubtedly was due to the lapse of CPA who has been suspended and necessary action for negligence has been initiated against him. Opposite party No. 1 is not responsible for any negligence of the CPA. It was denied that the complainant is a consumer'' within the meaning of Section 2(I)(d)(ii) of the Consumer Protection Act, 1986 (for short the Act). It was stated that the parking services provided to the complainant was not covered under Section 2(1)(o) of the Act. The value of the car is mentioned as Rs. 5,11,092. Since the car was one year old the value thereof must have depreciated. It was stated that the claim made on other counts is imaginary and arbitrary. Dispatch of the reply to the legal notice dated 10.11.1998 was admitted. Complainant filed his affidavit by way of evidence. Affidavit of Sudhir Sibal was filed in evidence on behalf of the opposite parties.

WE have heard Mr. R.K. Joshi for the complainant and Mr. Subhasish Mohanty for the opposite parties.

ONE of the decisions in Bombay Brazzerie v. Mulchand Agarwal, I (2003) CPJ 4 (NC)=(1986 -04) Consumer 7307 (NC), relied on behalf of the complainant has important bearing in the matter. In this case, Mulchand Agarwal, respondent along with his family visited the hotel of the appellant for taking food. He parked his car in the premises of the hotel. At the time of parking he was given a token by the attendant of the parking lot. When Mulchand Agarwal came back after taking the food he found the car missing. He alleged that because of the negligence on part of the appellant his car was stolen. Attributing deficiency in service, complaint seeking certain reliefs was filed by him which was contested by the appellant. Appellant did not dispute that a token was given to Mulchand Agarwal at the time of parking of the car. It was, however, alleged that on the face of the token itself it was clearly written that the management does not accept responsibility for any theft/damage/loss. Mulchand Agarwal did not pay any fee for parking of the car. Total claim made by Mulchand Agarwal was for Rs. 2,40,000 on account of (i) replacement costs, (ii) replacement of air conditioner, (iii) replacement of petitioner Two -in -one, (iv) taxi charges from 4.5.1992 to 6.10.1992, (v) expenses towards insurance claim and (vi) compensation of Rs. 25,000. Out of this amount, a sum of Rs. 1,22,000 had been paid by the Insurance Company. Complaint was allowed by the State Commission with direction to the appellant to pay sum of Rs. 1,00,000 to Mulchand Agarwal. Certain directions were also given for interest. Award was challenged by the opposite party - Bombay Brazzerie by filing appeal before this Commission. Paras 13, 16, 17, 19 and 21 of the decision in Bombay Brazzerie''s case (supra) being material, are reproduced below: "13. Judgments in the case of Rutter v. Palmer, (1922) 2 KB 87. Hood v. Anchor Lines Henderson Brothers, Ltd., (1918) AC 837 and Bharathi Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd., 1986 -1996 Consumer 2428 (NS) : 1996(1) CCC 596(NS) : (1996) 4 SCC 704 appear to be quite relevant to the issue involved in the present case though in the later case the customer had put his signature on the document containing the terms of contract. Token issued to the complainant at the time when his car was taken for parking tells him in unmistakable and unambiguous language the Hotel management would not be responsible for any theft/damage/loss. The fact that he took the token without any protest and availing of the facility of free parking would bind him to the terms of the token which would constitute a binding contract between him and the hotel.

The laws regarding bailment apply when a customer pays to park his car in a parking lot and it is stolen or damaged. A bailment occurs when the owner of the car (bailor) transfers the possession, care, and/or control of his car to another person (bailee) for limited time and for a special purpose. 17. Chapter IX of the Contract Act, 1872 contains provisions regarding bailment. Section 148 defines bailment. It 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 according to the directions of the person delivering them. The person delivering the goods is the bailor and the person whom these are delivered is the bailee. Under Section 151 bailee is bound to take such care of goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods. Under Section 152 the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. Under Section 161 if by the fault of the bailee, the goods are not returned or delivered, he is responsible to the bailor for any loss of the goods. The bailment thus envisages the contract between the bailor and the bailee. A contract requires consideration emanating from the promisor to promisee i.e. from the bailor to the bailee. In the present case we are proceeding on the assumption that price paid for the food consumed would include the consideration from the consumer, the bailor to the Hotel, the bailee. We are not considering the question when the car is given to the Hotel management for parking gratuitously. It cannot however be the case that the car has been lent by Mulchand to the Hotel management for its use gratuitously as per the requirement of Section 151 of the Contract Act. In any case the contract squarely provided that Hotel management would not be responsible for any theft/loss/damage to the car. We are thus of the view that Mulchand, complainant is not entitled to claim for loss of his car under the laws of bailment. But then that does not conclude the matter.

Deficiency in service has two aspects - (i) claim for the amount of actual loss and (ii) damages for inconvenience, harassment and mental tension. This second aspect is what we call consumer factor or consumer component or consumer surplus like the present one. Consumer component may not be present in every contract. It would depend upon the nature of the contract. Mulchand had given his car to the Hotel management apparently for safe parking till he consumes his food and pays the price. One of the factors which brought him to the Hotel was the offer of the Hotel management for free but safe parking. After consuming his food and paying the price Mulchand comes out and to his horror he finds his car has been stolen. He and his friends suffer a great deal of inconvenience and mental tension. Mulchand has claimed compensation for inconvenience, harassment and mental tension which he had to undergo. In our view, though the Mulchand may not be entitled to the price of the car in view of the contract he is certainly entitled to damages for mental tension, harassment and inconvenience caused to him and his friends. Mulchand has claimed Rs. 25,000 as compensation on this account.

Keeping in view the aspect of consumer factor'' or consumer component'' or consumer surplus'' as aforementioned we are of the opinion that Mulchand is certainly entitled to compensation for the mental tension, harassment and inconvenience caused to him. Mulchand has claimed Rs. 25,000 but in our view award of Rs. 10,000 will meet the ends of justice. There cannot be any standard for measuring damages in such a situation."

WHILE allowing appeal the order of State Commission was set aside except to the extent of Rs. 10,000 which amount Mulchand Agarwal was held to be entitled from the complainant.

SAID car No. DL6D -2904 was stated to be not insured on 28.9.1998.

IT is not in dispute that 7th General Assembly Session of Asia Pacific Lawyers Association was held at Ashoka Hotel from 26 to 28th September, 1998; complainant reached the hotel around 9.15 p.m. in Maruti Esteem Car bearing registration No. DL6D -2904 to attend the dinner hosted by the then Union Minister for Urban Development on 28.9.1998; complainant handed over the car and the keys to the security staff of the hotel at the entrance porch for safe custody and parking and he was given token No. 27 and after dinner the complainant found that the car was stolen. The amount charged for use of the space for three days and providing of tea/coffee/snacks and food to the delegates and the participants attending the conference by the hotel from the organizers in all probabilities may have included the parking charges. Likewise, parking charges may have been included in the amount paid for the dinner given on the night of 28.9.1998. Therefore, we are proceeding on the assumption that the complainant is a consumer and the said hotel is a service provider. Photocopy of aforesaid token No. 27 issued by the hotel to the complainant is at page 19. On the face of this token it is written that the Management does not accept responsibility for any theft/damage/loss. Similar wordings were written on the token issued to said Mulchand Agarwal. Considering the ratio in Bombay Brazzerie''s case, said term of the token would constitute a binding contract between the complainant and the hotel. The contract provided that the hotel management would not be responsible for any theft/damage/loss to the car. Complainant is, therefore, not entitled for the loss of his car. At the same time, the complainant is held to be entitled to the damage for the inconvenience, harassment and mental tension caused to him as ruled in the said decision. Details of the amount claimed have been set out in para No. 16 above of the complaint. Complainant must have been put to unnecessary inconvenience and harassment by visiting P.S. Chankyapuri to lodge the report of theft and thereafter pursuing the matter with appropriate authorities. In our view, out of various counts for which damages have been claimed, the complainant is entitled to compensation only for the mental agony/ inconvenience/harassment for which amount of Rs. 15,00,000 has been claimed. There cannot be any standard for measuring damages in such a situation. In our opinion, award of Rs. 50,000 will meet the ends of justice.

ACCORDINGL Y , the complaint is partly allowed with direction to the opposite parties to pay amount of Rs. 50,000 to the complainant. Complainant will be entitled to cost which is assessed at Rs. 15,000. Payment will be made within six weeks by the opposite parties. Complaint partly allowed.