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. RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE. RESPONDENT

Written submission on behalf of Respondent 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 7

8. Prayer 9

Written submission on behalf of Respondent 2

 LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

Ors. Others

Para. Paragraph

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

v. Versus

Written submission on behalf of Respondent 3

 INDEX OF AUTHORITIES

CASES REFERRED:

➢ Oberoi Forwarding Agency v. New India Assurance Company Limited 1 February, 2000

➢ Bombay Brazzerie vs Mulchand Agarwal on 7 November, 2002

➢ 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 Respondent 4

 STATEMENT OF JURISDICTION

The Hon’ble District Consumer Redressal Commission is vested with the extraordinary jurisdiction to
hear, try and dispose of the present matter under the 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 dispute where the appellants claim for compensation which does not exceed 20 lakh
rupees.

Written submission on behalf of Respondent 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 Respondent 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 is not maintainable as the insurance company is not a consumer he acts as a
subrogee and subrogee cannot be a consumer

2.WHETHER THE TOBEROI HOTEL CAN BE HELDLIABLE FOR THE THEFT OF A

CAR TAKEN FOR VALET PARKING
The Toberoi Hotel submitted that for a relationship of bailment to exist, a contract has to be
formed. The terms and conditions of the contract were clearly mentioned in the parking tag

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

VALID CONTRACT
It was also contended that the Respondent was not liable for the loss as the hotel had already
warned Petitioner No.2 about the terms of valet parking. The parking tag clarifies that the
hotel would not be liable for any loss, damage or whatsoever. Which does not constitute a
valid contract.

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

MENTIONED IN THR PARKING TAG
Court cannot absolve liability impose on hotel in respect of loss of or damage to vehicles of
their guest.

ARGUMENTS ADVANCED

1.WHETHER GENDAK INSURANCE COMPANY LIMITED CAN BE

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

Written submission on behalf of Respondent 7

The complaint is not maintainable as the insurance company is not a consumer he acts as a
subrogee and subrogee cannot be a consumer The respondent in its written statement
contended that the first petitioner was not a consumer and had no right to file the complaint
in Oberoi Forwarding Agency v. New India Assurance Company Limited1, the State
Commission dismissed the complaint on the ground that an insurance company acting as a
subrogee cannot qualify as a ‘consumer’ and was, therefore, not entitled to maintain the
complaint.

2.WHETHER THE TOBEROI HOTEL CAN BE HELDLIABLE FOR THE THEFT

OF A CAR TAKEN FOR VALET PARKING

The Toberoi Hotel submitted that for a relationship of bailment to exist, a contract has to be
formed. The terms and conditions of the contract were clearly mentioned in the parking tag,
which was also impliedly accepted by Mr. Deepak. They further submitted that since the
liability for theft is specifically excluded under the terms stated on the parking tag and the
Toberoi Hotel took reasonable care in handling the car keys, the Toberoi Hotel cannot be held
liable.
In Bombay Brazzerie vs Mulchand Agarwal2 to argue that a bailment necessarily exists
under a contract, the terms of which are encapsulated in the parking tag in this case. Since the
liability for theft is specifically precluded under the terms stated on the parking tag, he
submitted that the Respondent cannot be held liable.

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

VALID CONTRACT

It was also contended that the Respondent was not liable for the loss as the hotel had already
warned Petitioner No.2 about the terms of valet parking. The parking tag clarifies that the
hotel would not be liable for any loss, damage or whatsoever. Which does not constitute a
valid contract.

Futher the Respondent made submissions on two fronts. With respect to the locus standi of
Petitioner No. 1, he argued that does not qualify as a ‘consumer’. On merits, he vehemently
submitted that the erroneous inasmuch the principle of infra hospitium is not established
under Indian law in Taj Mahal Hotel v.United Insurance Co.ltd 3 He further relied on the
decisions in Bombay Brazzerie and B. Datta to argue that a bailment necessarily exists under
a contract, the terms of which are encapsulated in the parking tag in this case. Since the
liability for theft is specifically precluded under the terms stated on the parking tag, he
submitted that the Respondent cannot be held liable. It has denied negligence by stating that
the guest was aware of the risk of valet parking, which was not a service for safe custody of
the vehicle, especially given the terms printed on the parking tag.

1
1 February, 2000
2
7 November, 2002
3
14th November 2019
Written submission on behalf of Respondent 8
4.CAN A TOBEROI HOTEL ABSOLVE LIABILITY BY VIRTUE OF A
CONDITION MENTIONED IN THR PARKING TAG
Court cannot absolve liability impose on hotel in respect of loss of or damage to vehicles of
their guest A study of the law in other jurisdictions reveals that the unlimited common law
liability of innkeepers with respect to vehicles has been similarly restricted by legislation. In
Singapore, the Innkeeper’s Act of 1921 specifically excludes horse, live animals, a car or
carriage from the purview of strict liability. Likewise, several states in Australia (including
Victoria and New South Wales) have excluded motor vehicles and their contents from the
liability of innkeepers. All vehicles are now days insured for such instances. The parking tag
has a disclaimer stating owners’ risk and, therefore, the hotel cannot be held liable especially
when the parking available free of cost, the tag specifies that the car was being parked at
owners risk.
When no negligence can be established on behalf of the hotel the hotel cannot be made liable
to pay for the loss of the car.
The consumer to maintain an action against service provider in contract for recovery of his
vehicle or other property in it, damaged or loss with in the hotel premises, the consumer must
establish the existence of a distinct and a separate contract with the service provider for the
safety of such vehicle or property there in before the service provider, in the instant case the
hotel is not liable.

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. The complaint is not maintainable on the grounds that the complainant does not
come under section 2 (1) (d) of the Consumers Protection Act & may be dismissed
with cost.
2. The respondent is not liable to pay any compensation for the harassment or
mental torture or any deficiency in service as there is no contract of Bailment.

And/Or
Pass any Order, Relief or Direction that this Hon’ble court may deem fit in the
interest of Justice, equality and good conscience.

Written submission on behalf of Respondent 9

 MEMORIAL ON BEHALF OF THE
RESPONDENT

Written submission on behalf of Respondent 10