Vehicle stolen in Hotel parking-who is responsible

Vehicle stolen in Hotel parking-who is responsible

The star hotels provide several facilities to the customers for alluring to avail their services and in return get heavy price for room rent, meals etc. They provide some facilities free of cost like newspapers, complimentary fruit basket and mineral water bottles. They also allow keeping luggage for a few hours after early checking out and so are valet parking facilities.  These so called free services are not actually free because they are included in very high charges for food. But when it comes to their liability of safety of the vehicle, they often argue that visitor to their hotel is not a consumer as he does not pay any charges for the parking.  But you had handed over your keys to the guard on the gate with this assurance that your vehicle is safely parked in the Hotel under the supervision of hotel authorities and you can have relaxed time while inside the hotel.

Another issue which comes before the courts for adjudication  is the words printed on the docket/parking tag  you receive from the guard after handing over the vehicle keys to them –‘parking at your risk’

Not only that, at times Insurance Company with whom  car is insured also refuses to take any responsibility relying upon the docket provided by the hotel stating therein responsibility is of the visitor if one parks the vehicle there

One more question is discussed during the proceedings before the courts–Can the complainant claim for the loss from both ends-insurance as well hotel authorities.

Let’s go one by one on the each point to understand the law on the issues so raised.

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

Facts in brief are that the Car Owner comes to The Hotel Taj on 1.8.1998 at about 11 p.m.; parked his car at the porch; gave the car keys to the parking man; received a parking slip, went inside the restaurant for having dinner and returned after the meal at about 1.00 a.m.He found his vehicle missing when asked for the keys. He was informed by the officer on duty at the parking lot that his vehicle was driven away by some unknown person. Three young boys who parked their blue Maruti Car No. DL-6C- D-9164, went inside the Hotel, immediately came out, asked for their car and in the meanwhile during the parking man went to bring the car, one of the boys picked up the key from the desk and drove away Maruti Zen belonging to the Complainant. It was stated by the Hotel staff that despite efforts by the Hotel guard, the car sped away.

The Hotel contacted police station and police informed the car was untraceable. A Surveyor was appointed by the Insurance Company who settled the claim for 2,80,000 vide a cheque dated 28.1.1999 but later Insurance Company also became complainant to the case in the Consumer Commission, and  contested the case with argument that insurance is not responsible  and stood by the Hotel with the argument- visitor parked the car at his own risk . He also argued that hotel had not informed them of the theft and they lost the opportunity to investigate the matter at their end.

Complainant averred that the Hotel was duty bound to take care of the car when they offered their parking services along with the dinner for which the car owner made the payment. It was pleaded that at no point of time did the Hotel refuse the provision of parking facilities and that the car was kept in their custody for consideration as he had taken dinner in the restaurant and paid for it. The Hotel was requested to compensate for the loss, but they refused to do so.

State Commission has directed hotel to pay to the first Complainant i.e Insurance Company the value of the car, i.e., 2, 80,000 along with interest @ 12% p.a. From 28.1.1999 till the date of realization together with costs of 50,000. An amount of 1, 00,000 was directed to be paid to the second Complainant, the car owner as damages for mental harassment

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  Bombay Brazzerie v. Mulchand Agarwal, I (2003) CPJ 4 (NC) and Hotel was made to pay compensation when insurance had paid for the actual loss,i.e. cost of the car.

Dr Prem Lata

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