NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST APPEAL NO. 102
OF 2004
(Against the order dated
24.1.2004 in complaint No. 147/97
of the State Commission,
M/s Hotel Hyatt Regency ........ Appellant
M.G. Marg
Vs.
Mr. Atul Virmani ........
Respondent
S/o
105,
Dehradun
Uttaranchal
BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING
MEMBER
For the Appellant : Shri Ravi Gopal, Advocate
For the Respondent :
Dated
ORDER
The issue involved in this case is if the keys of the car given by the
customer of a Five Star Hotel for parking to the uniformed valet of the hotel
is stolen whether the Five Star Hotel is responsible for making good the loss
to the consumer.
Facts of the case in brief are as follows :
Mr. Atul Virmani came to
The case of the
complainant is that on 18.9.1996 at about
The case was contested by
the hotel stating that valet service rendered was a free service and the
complainant is not a consumer under the Consumer Protection Act, 1986. The hotel authorities admitted that the
complainant had visited on 18.9.1996 and handed over the keys of his Maruti Gypsy to the valet on duty for the purpose of
getting the vehicle parked. The valet
had handed over the docket to the complainant
but no monetary consideration or parking fee was charged. Hotel authorities were not legally bound to
keep the vehicle in the hotel premises.
It was also stated that on the reverse of every car docket issued to the
visitors, a disclaimer notice is printed through which the visitors were
informed that the vehicle could be parked within the hotel premises at their
own risk and that the hotel would not be liable for the loss or damage to the
vehicle parked. It was further submitted that the complainant had gone to the
discotheque by paying entry free of Rs.900/- which was charged only for the use
of discotheque which did not include any parking fee.
The State Commission
after going through records and hearing the counsel for the parties held that
there was deficiency in service by the hotel in not ensuring the safety of the
car entrusted to their custody.
Accordingly, the hotel was directed to pay the complainant a sum of Rs.2,00,000/- along with 10% interest from the date of the theft
till the date of the payment with Rs.5,000/- as cost.
Aggrieved and
dissatisfied by the order of the State Commission the hotel has filed appeal
before us.
The learned counsel for
the hotel brought to our notice a copy of the token/car docket issued to those
who use the valet facilities wherein on the reverse of the docket a
notice/disclaimer is printed wherein it is mentioned as follows:
1. Parking of vehicle is entirely at owner’s risk. Hotel Hyatt Regency Delhi/Asian Hotels Limited disclaim all responsibility for any theft/damage or destruction of the vehicle/its contents caused by fire, third party acts, force majeure or any other cause whatsoever.
2. Vehicle owners are advised not to leave any valuable items in the vehicle at the time of parking.
3. The vehicle is being permitted to be parked in the hotel area on the premise that the vehicle does not contain any firearms, explosive or narcotics substances.
Owners – Asian Hotels Ltd.
He further
brought to our notice the judgment of the National Commission in Bombay Brazzerie Vs. Mulchand Agarwal and another I (2003) CPJ 4 (NC) wherein it was
held as follows :
“Keeping in view the aspect of ‘consumer factor’ or ‘consumer
component’ of ‘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.
In the
complaint Insurance Company has also been added as co-complainant by Mulchand. It was
submitted by Mr. Vishnu Mehra, learned counsel
appearing for the Insurance Company that
in case Consumer Forum allows the complaint and grants compensation, Insurance
Company is entitled to be reimbursed inasmuch as the price of the car had since
been paid by the Insurance Company to Mulchand. We are unable to appreciate such an
argument. For one thing if the
complainant – Mulchand had been paid price of the car
by the Insurance Company under the policy of insurance he cannot claim the same
amount again in the complaint on a pretext as a consumer under the Consumer
Protection Act, 1986. He cannot get
better right by also adding the Insurance Company as co-complainant Insurance
Company cannot be a consumer under the Consumer Protect Act and has certainly
no cause against Hotel. We cannot allow
the complainant to enrich himself when we find that he had already received the
price of the car from the Insurance Company.
If the Insurance Company is of the view that fault lay with the Hotel it
could bring a civil suit against the Hotel and could implead
Mulchand complainant as well, but Mulchand
cannot file his complaint for the benefit of the Insurance Company.
We, therefore, allow this appeal and set aside the order of the State Commission except to the extent of Rs.10,000/- which amount Mulchand, complainant shall be entitled from the appellant. We make no order as to costs.”
Submissions of the learned counsel for the respondent :
Learned counsel
for the respondent submitted that the fees of Rs.900/- paid for entering
discotheque includes charges for any service rendered by the hotel. No customer would visit the hotel and use the
valet facility unless he is sure that the car is safe. There is no time for any customer to read the
reverse of the docket in detail at the time of handing over keys of the
car. When a person goes to a Five Star
hotel he does not just pay for the food served he pays for the general
atmosphere, air condition, decoration, safety and total environment of the
hotel. He submitted that his car was
insured only for third party risk and accordingly he will not be in a position
to claim any compensation from the Insurance Company.
Hotel Hyatt Regency is
currently known as only Hyatt. This
hotel is one of the hotels run by the chain of hotels in different countries.
In fact, the name Board does not mention that it is a ‘hotel’,
it is only called Hyatt because it is so famous and so popular that there is no
need to mention the word ‘hotel’. The
five star hotels provide several facilities as the customers pay heavy price
for room rent, meals etc. They provide some facilities free of cost like
newspapers in the hotel room, complimentary fruit basket and mineral water
bottles. Similarly, left luggage facility for a few hours after early checking out is also provided
and so also valet parking facilities.
These so called free services are not actually free because they are
more than made up by exorbitant rental charges, very high charges for food and
very high entrance fee for discotheque etc.
It is not in dispute that
the complainant had used the hotel facilities by paying Rs.900/- as entry fee
to discotheque in addition he must have spent money for his food. The hotel does not dispute that the car key
was taken by the valet of the hotel and vehicle was not delivered to the owner
who had the docket. It is due to sheer
negligence of the hotel staff that they had allowed the car to be stolen and
taken out by some unauthorized person for which there was an entry in their
register.
We have only perused copy of the sample docket where in small letters
disclaimer is written. Those who visit
Five Star hotels and use the car parking facilities are aware that after the
car keys are given to the valet there is hardly any time for the consumer to
read docket conditions written on the reverse of the docket because there would
be a fleet of cars entering and exiting from the hotel. When a uniformed liveried valet with his
imposing figure asks for the car keys he exudes confidence in the consumer and
therefore, for the management of a Five Star Hotel to shirk the responsibility
of the safety of the car parked in their premises does not augur well. The hotel is liable for the negligence of
its staff.
This view is fortified by the decision of this Commission in Mahesh
Enterprises Vs. Arun Kumar Gumber & Ors.
11 (2001) CPJ (NC) 1 wherein it was held that
“In our opinion, in the facts and circumstances of the case, the State
Commission was legally right in holding that the facts and the circumstances
would constitute bailment and the person responsible for the management of the
parking area was liable to make good the loss.”
In Savita Garg
(Smt.) Vs. Director, National Heart Institute (2004)
8 SCC
“If hospital authorities charge high fee for treating some of the
patients and do not charge fees for some patients then there is a subsidy provided to the patients who are
treated free of charge and if there is negligence in treating those patients
free of charge is also be covered by the deficiency in service and the hospital
would be liable for medical negligence and payment of compensation.”
In view of the above Judgment even though the hotel might have provided
valet parking facilities free of charge still it would be covered by the
deficiency of service under Consumer Protection Act, 1986 as it is charging for
other services at a very high rate.
If the hotel authorities cannot keep the car safely they should have put
a big board at the entrance of the hotel proclaiming “Beware giving car keys to
the valet of this hotel does not ensure safety of your car, Management is not
responsible for theft of the car”. This
has not been done by the hotel.
Therefore, we do not see any illegality, material irregularity or jurisdictional error in the order passed by the State Commission. Resultantly this appeal is dismissed. There shall be no order as to costs.
……………………J
(R.C. JAIN)
(PRESIDING MEMBER)
…………………………
(P.D. SHENOY)
Rajani