Hotel
responsible for safety of car kept in their parking
We have a case with us
decided in the year 2018 on the subject in the matter of Taj Mahal Hotel Versus United
India Insurance Co. Ltd. & Ors. I (2018) Cpj 546 (NC) decided by Mrs. M.
Shreesha, Presiding Member in which all the above points are discussed in
detail for coming to logical conclusion
First
question of consideration before the National Commission now in appeal was as
to whether complainant is a consumer under Consumer Protection Act. Keeping in
view all the facts and judgments, National Commission held that valet
parking services are provided by the Hotel for the convenience of its guests .From
the moment a person receives a thing pertaining to another with the
obligation to safely keep it ,he is bound to return it in
the same condition as taken.. The plea that no separate fee is charged for the
parking is misconceived because the
Valet facility, is one of the services offered by the Hotel for the comfort and
convenience of its guests, for alluring
them to visit the Hotel’
On the other issue of volet /docket with parking at your risk -concept of ‘owner’s risk’ does not
completely set free the Hotel. National Commission refereed to the decided case
by the Hon’ble Supreme court on the issue in the matter and the observations
made by the Hon’ble Supreme Court in Nath Bros. Exim International Ltd. V. Best
Roadways Ltd., I (2000) CPJ 25 (SC), explaining ‘owner’s
risk’ in a contract of bailment. –
!) “OWNER`S RISK” and, therefore, if
any loss was caused to the goods, may be on account of
fire, which suddenly engulfed the neighboring warehouse and
spread to the go down where the goods in question were stored, the
carrier would not be liable.
In the present case, such is not the situation
of any natural calamity
!!). “OWNER`S RISK” in the realm of commerce has a positive
meaning. It is understood in the sense that the carrier would not be liable for
damage or loss to the goods if it were not caused on account of
carrier‘s own negligence or the negligence of its servants and agents
But in the present case,
facts reveal that it was the negligence of the agent of the hotel to leave the
keys on the counter and a boy fled away with the car after picking up keys from
the counter. FIR states clearly that theft happened in the presence of
employees of hotel or agent
it is pertinent to note that in the statement made before the police
it was clearly stated that the guard tried to stop the thief but he
drove away immediately. The same fact was also reiterated by the Hotel in their
Affidavit filed before the State Commission.
!!!) 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. More so, it is one sided imposing on the customer
and he does not sign or agree to the same.
!V) Other point
establishing responsibility by act –It is given an understanding to those who
park their car that their vehicles would not removed without following
prescribed procedures. As a prescribed procedure, a card is issued on entering
the parking area which is to be returned to the security at the entry
of the parking area. This procedure itself establishes that security is bound
to take care of the vehicle during it keeps with them. If the security guard
allows a vehicle to leave the parking area without having returned
the card, it would amount to negligence as is the case here in this matter.
V) Principal of bailment- that
the law regarding bailment applies when a customer transfers the possession,
care and/or control of his car to another person (bailee) for a
limited time and for a special purpose. Merely writing ‘owner’s risk’ at the
back of a token does not completely exonerate the Hotel from any act of
deficiency of service as neither was the Car Owner put to specific
notice that any damage/loss occurred to his car would be at his risk,
nor was there any kind of a Board at the entrance proclaiming that the
management was not responsible for the theft of the car which was prominently
displayed. 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.
Court Finally HELD;
The
concept of infra hospitium, a Latin term meaning “within the
Hotel” has been discussed in various judgments wherein the
liability of Hotel/Innkeepers/restaurant owners was laid down... While the tag
had the name of the Hotel on it, the Car Owner could have reasonably inferred
that his car was in the ‘duty of care’ and ‘custody’ of the Hotel.
Keeping
in view the submissions that the insured amount was already paid by the
Insurance Company to the Car Owner and that the Hotel has
paid to the Car Owner an amount of 1, 00,000 in pursuance of the
order dated 12.1.2017 by this Commission, the order of the State Commission is
maintained by making minor changes in the rate of interest to be paid
It is pertinent to note that this court as well as in Bombay Brazzerie v. Mulchand Agarwal, I (2003) CPJ 4 (NC), and the courts maintained that complainant cannot be paid twice for the loss. He can either be paid by Insurance or by the Hotel for his actual loss. But Hotel cannot be absolved from the responsibility of paying compensation for the mental harassment one undergoes. Hence in the present case also Rs 1, 00,000/- is directed to be paid to the complainant apart from the cost of car as paid by insurance company. Similar was the order passed in
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