Submission for Practical Paper

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSEL

COMMISSION,NEW SHELI

IN THE MATTERS OF:

1. GENDAK INSURANCE COMPANY LTD.
2.MR.DEEPAK KOHLI ...........PETITIONER
v.
THE TOBEROI HOTEL ......…RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF .PETITIONER

COUNSEL APPEARING ON BEHALF OF THE .PETITIONER

Written submission on behalf of Petitioner 1

 TABLE OF CONTENTS

Sr. No. Content Page. No.

1. List of Abbreviations 3

2. Index of Authorities 4

3. Statement of Jurisdiction 5

4. Statement of Facts 6

5. Statement of Issues 7

6. Summary Arguments 7

7. Arguments Advanced 8

8. Prayer 10

Written submission on behalf of Petitioner 2

 LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

Ors. Others

Para. Paragraph

SC Supreme Court

SCC Supreme Court Cases

POA Power of Attorney

UOI Union of India

v. Versus

Written submission on behalf of Petitioner 3

 INDEX OF AUTHORITIES

CASES REFERRED:

➢ Economic Transport Organization vs. Charan Spinning Mills Private Limited and Anr. (2010) 4
SCC 114
➢ N.R. Srinivasa Iyer v. New India Assurance Co. Ltd.22 July 1983
➢ In Aria v. Bridge House Hotel (Staines) Ltd. 1927 137 LT299
➢ Klaus Mittelbachert v. East India Hotels Ltd. 3 January, 1997
➢ Hotel Hyatt Regency v. Atul Virmani, AIR 1983 1 August, 2008

➢ Taj Mahal Hotel v. United Insurance Company Ltd. Ors.14th November 2019

BOOKS REFERRED: -

1. Pollock & Mulla on Indian Contract Act and Specific Relief Act
2. Contract & Specific Relief Act, by Avatar Singh
3. Dr. J.N. Barowalia’s Commentary on the Consumer Protection Act

STATUTES REFERRED: -

1. Consumer Protection Act, 1986

2. Indian Contract Act, 1872

CYBER SOURCES: -

1. www.scconline.com

2. www.manupatra.com

3. www.indiakanoon.com

Written submission on behalf of Petitioner 4

 STATEMENT OF JURISDICTION

The Hon’ble District Consumer Redressal Commission is vested with the extraordinary
jurisdiction to hear, try and dispose off the present matter under pecuniary jurisdiction under
Sec 11(1) of the Consumer Protection Act, 1986

The District Consumer Redressal Commission operates at a district level and takes only
consumer disputes where the complainants claim for compensation which does not exceed 20
lakh rupees.

Written submission on behalf of Petitioner 5

 STATEMENT OF FACTS

➢ Petitioner No.2 visited the Toberoi Hotel in the city of New Sheli in his Maruti SX4 car on
01.12.2020 at around 01:00 pm. The car was insured with Petitioner No.1 for theft.
➢ Upon reaching the hotel, Petitioner No.2 handed over his car and its keys to the hotel valet for
parking, and then went inside the hotel. The parking tag handed over to him stated the following
condition printed on it:
“This vehicle is being parked at the request of the guest at his own risk and responsibility. In
the event of any loss, theft or damage, the management shall not be held liable for the same and
the guest shall have no claim whatsoever against the management. This condition shall be
deemed to be accepted by the guest when the vehicle is being parked in or outside the Hotel
premises”

➢ When Petitioner No.2 came out of the hotel at about 5 p.m., he was shocked and surprised
when he was informed that his vehicle had been driven away by another person
➢ .When enquired with the security personnel of the hotel, Petitioner No.2 was informed that
five young boys had come to the hotel in their separate Maruti Alto car, parked it, and
went inside the hotel. After some time, they came out and asked the valet to bring their
Alto car to the porch.
➢ During this process one of the boys, One Sandeep picked up the keys of the SX4 car of
Petitioner No.2 from the drawer of the desk, went to the car parking and stole the Maruti
SX4 car. The security guards tried to stop him, but he sped away. Complainant No.2’s
stolen Maruti SX4 car is not found.

➢ Petitioner No.1 settled the insurance claim raised by Petitioner No.2 Kohli in respect of the
stolen car. Complainant No.2 executed a Power of Attorney in favour of Complainant No.1.
They both then approached the District Consumer Disputes Redressal Commission, New
Sheli by filing a complaint against the Toberoi Hotel seeking payment of the value of the car
and compensation for deficiency in services amounting to Rs. 15 lakhs.

Written submission on behalf of Petitioner 6

 STATEMENT OF ISSUES

The Hon’ble District Consumer Redressal Commission was pleased to frame the
followingissues for consideration:

1. WHETHER GENDAK INSURANCE COMPANY LIMITED CAN BE

CONSIDERED AS A CONSUMER FOR FILING A CLAIM FOR DEFICIENCY
IN SERVICE
2. WHETHER THE TOBEROI HOTEL CAN BE HELDLIABLE FOR THE THEFT
OF A CAR TAKEN FOR VALET PARKING
3. DOES THE CONDITION MENTIONED IN THE PARKING TAG CONSTITUTE
A VALID CONTRACT
4. CAN A TOBEROI HOTEL ABSOLVE LIABILITY BY VIRTUE OF A
CONDITION MENTIONED IN THR PARKING TAG

SUMMARY OF ARGUMENTS

1.WHETHER GENDAK INSURANCE COMPANY LIMITED CAN BE CONSIDERED

AS A CONSUMER FOR FILING A CLAIM FOR DEFICIENCY IN SERVICE
The complaint before was filed by Petitioner Nos. 1 and 2 as co-complainants. Hence, both
the conditions are squarely applicable to this case and the complaint is maintainable.

2.WHETHER THE TOBEROI HOTEL CAN BE HELD LIABLE FOR THE THEFT OF A
CAR TAKEN FOR VALET PARKING
The general rule has been that in a contract of bailment, if goods are lost or damaged while in
the possession of the bailee, he will be liable. The burden of proof will be on the bailee to
show that he took a reasonable degree of care in respect of the bailed goods

3.DOES THE CONDITION MENTIONED IN THE PARKING TAG CONSTITUTE A

VALID CONTRACT
This would mean that it is not sufficient for the hotel to merely appoint an attendant or
security guard or put a parking tag who takes the responsibility of parking the vehicle and
keeping the car keys in his custody until the vehicle owner is inside the hotel premises. The
hotel must take additional steps to guard against situations which may result in wrongful loss
or damage to the car.

4.CAN A TOBEROI HOTEL ABSOLVE LIABILITY BY VIRTUE OF A CONDITION

MENTIONED IN THR PARKING TAG
The hotel-owner cannot absolve liability for its negligence or that of its servants in respect of
a vehicle of its guest in any circumstance

Written submission on behalf of Petitioner 7

 ARGUMENTS IN ADVANCED

1.WHETHER GENDAK INSURANCE COMPANY LIMITED CAN BE

CONSIDERED AS A CONSUMER FOR FILING A CLAIM FOR DEFICIENCY IN
SERVICE

A consumer can be a complainant. A consumer, under the terms of Act1, is, inter alia: any
person who hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred payment and
includes any beneficiary of such services other than the person who hires or avails of the
service for consideration paid or promised, or partly paid and partly promised, or under any
system of deferred payment, when such services are availed of with the approval of the first
mentioned person;

The legal proposition in this regard has recently been settled as under by a Constitution
Bench of Supreme Court in Economic Transport Organization vs. Charan Spinning Mills
Private Limited and Anr2

"(a) The insurer, as subrogee, can file a complaint under the Act either in the name of the
assured (as his attorney-holder) or in the joint names of the assured and the insurer for
recovery of the amount due from the service provider. The insurer may also request the
assured to sue the wrong doer (service provider

(b) Even if the letter of subrogation executed by the assured in favour of the insurer contains
in addition to the words of subrogation, any words of assignment, the complaint would be
maintainable so long as the complaint is in the name of the assured and insurer figures in the
complaint only as an attorney holder or subrogee of the assured

In the instant case (actual consumer/assured) had executed a POA and a letter of subrogation
in favour of PETITIONER (car insurer). Consequently, the complaint before was filed by
Petitioner Nos. 1 and 2 as co-complainants. Hence, both the conditions are squarely
applicable to this case and the complaint is maintainable. Taj Mahal Hotel v. United
Insurance Company Ltd. Ors.3

2.WHETHER THE TOBEROI HOTEL CAN BE HELD LIABLE FOR THE THEFT
OF A CAR TAKEN FOR VALET PARKING

The insurance company and Mr. Deepak submitted that the principle of strict liability is
1
Section 2(d)(ii)of consumer protection act
2
. (2010) 4 SCC 114
3
14th November 2019
Written submission on behalf of Petitioner 8
squarely applicable on Toberoi Hotel for the loss of Mr. Deepak’s property since Mr. Deepak
as well as his car were within the hotel premises when the car was stolen. The Toberoi Hotel
acted as a bailee when Mr. Deepak handed over the car keys and the car was stolen because
of negligence on the part of the hotel staff.
Two approaches have been taken towards the liability of an innkeeper for loss or damage to
the vehicles of his guest – first, the common law rule of insurer’s liability wherein the
innkeeper is treated as an insurer and made responsible for any loss or damage to the vehicle
of its guest, regardless of the presence or absence of negligence on his part (‘the common law
rule’); and second, the rule of prima facie negligence wherein the innkeeper is presumed to be
liable for loss or damage.
Notably, this is also the approach that has found mention under Indian law. The general rule
has been that in a contract of bailment, if goods are lost or damaged while in the possession
of the bailee, he will be liable. The burden of proof will be on the bailee to show that he took
a reasonable degree of care in respect of the bailed goods N.R. Srinivasa Iyer v. New India
Assurance Co. Ltd.4

In Aria v. Bridge House Hotel (Staines) Ltd5.,11 it was further held that the insurance liability
of an innkeeper for the goods of his guest also applied to automobiles parked in a space
adjoining the hotel, upon directions given by the porter. Since the car of the plaintiff in that
case had been parked in such a manner and was stolen while he was dining at the hotel, the
Respondent hotel was held liable.

3.DOES THE CONDITION MENTIONED IN THE PARKING TAG CONSTITUTE A

VALID CONTRACT

In Klaus Mittelbachert v. East India Hotels Ltd.6and Hotel Hyatt Regency v. Atul Virmani7,to
argue that the duty of care owed by 5-star hotels is higher, and the Appellant must therefore
be subject to the highest standard of insurer liability in case of theft of goods from its
premises.

This would mean that it is not sufficient for the hotel to merely appoint an attendant or
security guard or put a parking tag who takes the responsibility of parking the vehicle and
keeping the car keys in his custody until the vehicle owner is inside the hotel premises. The
hotel must take additional steps to guard against situations which may result in wrongful loss
or damage to the car. This includes, for example, ensuring that the car keys are kept out of
reach of outsiders, that the valet parks the car in a safe location, that parking spaces which are
in the vicinity of the hotel are well- guarded, that parking spaces inside the hotel (if any) are
reasonably well-maintained and CCTV cameras are installed there for detecting any
suspicious activity, that the car is handed over only to those who present the parking slip and

4
AIR 1983 22nd july
5
1927 137 LT299
6
3 January, 1997
7
1 August, 2008
Written submission on behalf of Petitioner 9
so on.

4.CAN A TOBEROI HOTEL ABSOLVE LIABILITY BY VIRTUE OF A

CONDITION MENTIONED IN THR PARKING TAG

The hotel-owner cannot absolve liability for its negligence or that of its servants in respect of
a vehicle of its guest in any circumstance. Once possession of the vehicle is handed to the
hotel staff or valet, there is an implied contractual obligation to return the vehicle in a safe
condition upon the direction of the owner. Taj Mahal Hotel v. United Insurance Company
Ltd.8

The Hotel has not taken steps to ensure that the valet car keys were kept out of the reach of
outsiders or that cars were parked in a safe location or that there were adequate systems to
verify the car owner of a valet parked car. In fact, the Hotel failed to advance any arguments
to support that it was not negligent in its duties towards the Hotel. Consequently, the theft of
the Hotel’s car was as result of the Hotel's negligence.

It is very obvious that any guest would have an implicit expectation that the repute and
standards of 5-star hotels would necessitate adequate safety of the vehicles handed over for
valet parking. If the hotel is allowed to exclude its liability for negligence, then the standard
of care under section 151 of the Contract Act would become illusory and virtually redundant,
rendering customers vulnerable without any remedy. Therefore, the standard of care required
to be taken by the hotel as a bailee under section 151 is protected and cannot be contracted
out of. Ors.

PRAYER

Whereof, in the light of the issues raised, argument advanced and

authorities cited, may this Hon’ble court pleased to adjudge and
declare:

1. This Complaint may be heard and admitted on merits.

2. The Respondent may be directed to pay the amount of Rs.15,00,000/-
along with 12% interest till the amount fully paid.
3. The Respondent to pay compensation to Petitioner No. 2 for the
harassment and mental torture and deficiency in service.

And/Or

8
14th November 2019
Written submission on behalf of Petitioner 10
 Pass any Order, Relief, or Direction that this Hon’ble court may deem fit in
the interest of Justice, equality and good conscience.

MEMORIAL ON BEHALF OF THE

PETITIONER

Written submission on behalf of Petitioner 11