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IN THE HON’BLE STATE CONSUMER DISPUTES

REDRESSAL COMMISSION OF PUNJAB

IN THE MATTER OF

TASVEER KAUR SOHI


(APPELLANT)

CHANDIGARH
MOTO CO.
(RESPONDENT)

ON SUBMISSION TO THE HON’BLE STATE CONSUMER

DISPUTES REDRESSAL COMMISSION OF PUNJAB

MEMORANDUM ON BEHALF OF THE APPELLANT

Ankit Kumar Paikra

Counsel for the Appellant/Defendant

B.A.LL.B. (Hons.) Student

Semester-II, Section-C, Roll No-19

Hidayatullah National Law University


Post- Uparwara, Tehsil- Abhanpur, Atal Nagar - 492002 (C.G.)
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ....................................................................................................... 3


INDEX OF AUTHORITIES ......................................................................................................... 5
STATUTORY INSTRUMENTS ...................................................................................................... 5
JUDICIAL DECISIONS ................................................................................................................ 5
BOOKS......................................................................................................................................... 5
DICTIONARIES AND ENCYCLOPAEDIAS ................................................................................. 5
STATEMENT OF JURISDICTION ............................................................................................. 6
STATEMENT OF FACTS ........................................................................................................... 7
ISSUES RAISED ......................................................................................................................... 9
THE SUMMARY OF ARGUMENTS ........................................................................................ 10
ARGUMENTS ADVANCED..................................................................................................... 11
Issue A- THERE IS A CASE OF BAILMENT .......................................................................... 11
BAILMENT................................................................................................................................. 11
PRAYER FOR RELIEF ............................................................................................................. 15
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LIST OF ABBREVIATIONS

Abbreviation Full Form of Abbreviation


& And
¶ Paragraph
AIR All India Reporter
All Allahabad
Anr. Another
Art. Article
Bom Bombay
BOMLJ Bombay Law Journal
Cal Calcutta
Co. Corporation
CPC Code of Civil Procedure
CWN Calcutta Weekly Notes
Edn./ed. Edition
GLR Gujarat Law Reports
HC High Court
Hon’ble Honourable
i.e. Id Est (that is)
Ibid. Ibidum
ILR Indian Law Reports
J. Justice
LJ Law Journal
Ltd. Limited
M/s Messer’s
Mh.LJ Maharashtra Law Journal
MP Madhya Pradesh
No. Number
Ors. Others
P&H Punjab and Haryana
Para Paragraph
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pg. Page
Plff. Plaintiff
pp. Pages
Rs. Rupees
S. Section
SC Supreme Court of India
SCC Supreme Court Cases
SCR Supreme Court Reports
Smt. Srimati
v. Versus
Vol. Volume
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INDEX OF AUTHORITIES

STATUTORY INSTRUMENTS

1. Indian Contract Act, 1872


2. Consumer Protection Act, 1986
3. Motor Vehicle Act, 1988

JUDICIAL DECISIONS
1. Jagdish Chandra Trikha v. Punjab National Bank, A.I.R. 1998 Delhi 266.
2. Kaliaporumal Pillai v. Visalakshmi, A.I.R. 1938 Mad. 32.
3. National Bank of Lahore v. Sohan Lal, A.I.R. 1962 Punjab 534.
4. L.M. Co-operative Bank v. Prabhudas Hathibai, A.I.R 1966 Bom 134.
5. State of Gujarat v. Memom Mahomed, A.I.R. 1967 S.C. 1885.
6. Union of India v. Udho Ram and Sons, A.I.R. 2004 Ker 214.

BOOKS

1. Anson’s Law of Contracts


2. Chitty on Contracts
3. Mulla, D.F, Mulla on Contracts, , (Lexis Nexis Butterworths, India, New Delhi)
(2007)
4. Law of Contracts, Janet O’Sullivan & Jonathan Hillad
5. Basu, DD, ‘Constitutional Law Of India’ (Wadhwa And Company, 7TH Edition,
Nagpur) (Rep. 2003)
6. Bakshi, P.M., The Constitution of India, (Universal Law Publishing Co., India, 8th Edn,
New Delhi) (2007)

DICTIONARIES AND ENCYCLOPAEDIAS

1. Bryan A. Garner, Black’s Law Dictionary, (8th ed. 2004).

2. Concise Oxford Dictionary, (10th Edn., Oxford University Press, 2002)


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STATEMENT OF JURISDICTION

The Complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act,
1986.
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STATEMENT OF FACTS

1. The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act
1986 (in short the "Act"), against opposite parties (in short as OPs) on the averments that
OP nos.1 and 2 have been running the business under the name and style of M/s
Chandigarh Moto Company, whereas OP no.2 is sole proprietor of OP no.1.
2. They have been rendering the services/repairs of various high end cars. The complainant
owns one Mercedes Model E-220 CDI Diesel version of white colour, bearing registration
number CH01 AW 0575, which was purchased by her for Rs.38,93,275/- in the year 2013,
vide invoice dated 06.02.2013 annexure C-1. She further paid Rs.2,33,597/- as road tax
@6%. She availed finance facility from ICICI bank for purchasing this car.
3. It is further averred that the right side rear door of the above car was dented in a minor
condition requiring denting and painting thereto. The car was taken to the workshop of OP
no.1 situated at Zirakpur on the instructions of complainant on 26.08.2016 by explaining
the problems to OP no.2 in it. Its exhaust tip was also required the cleaning and the said
job was also allocated to OPs by her.
4. OPs have not provided the job card to her. After rectifying the denting and painting
problem, OP no.2 unauthorizedly utilized the car of complainant for his personal use. On
31.08.2016, Mr. Gurinder Sidhu, telephonically informed the husband of the complainant
regarding unauthorized driving of the said car by OP no.2.
5. When husband of the complainant enquired about the status of car from OP no.2, the latter
sent whatsapp message to him on 31.08.2016 through mobile no.9646836959 on mobile
number 9023457575. The message so sent has been reproduced in complaint in detail. The
husband of complainant came back from Delhi on 03.09.2016 and passed outside the
house of OP no.2 at 10:30 PM, but he could not find the above car parked thereat.
6. OPs utilized the said car of the complainant in an unauthorized manner without her
consent. OP no.2 lodged DDR no.008 on 04.09.2016 at Police Station North Chandigarh
that the said car was parked on the pavement of his house on 02.09.2016 at about 8:30 PM
for carrying out the denting job. The contents of the DDR read out that the denting and
painting job was completed and the car was brought back.
7. The car was parked by OP no.2 in the pavement of his house, where someone put the
above car on fire. The services of two fire brigades were requisitioned by OP no.2 to
extinguish the fire. The contents of DDR were wrongly recorded regarding date of delivery
and place of delivery of the car. On 04.09.2016 at about 11:00 AM, OP no.2 and 3 came to
the house of complainant intimating her husband regarding the total loss of car and filing
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of DDR and fire brigade report in the incident of fire engulfing the car. OP no.2 and his
brother assured to compensate the complainant in purchasing another car of the same
model, in lieu of the damaged car.
8. OP no.2 moved another complaint to police on 05.09.2016. On 06.09.2016, OPs backed
out from their promise of paying the cost of the car to the tune of Rs.35,00,000/- to
complainant by disowning their commitment. Husband of complainant lodged FIR no.142
dated 06.09.2016 against OP at police station North Chandigarh in this regard. OP no.2
and his brother moved anticipatory bail application on 08.09.2016 under Section 438 of
CrPC before Sessions Judge Chandigarh for their pre arrest bail.
9. It is further averred that OP no.2 utilized the filed print of whatsapp message dated
31.08.2016. OPs are alleged to be guilty of deficiency in service by bringing the car to
their home without any authority from complainant. OPs failed to intimate the complainant
that car was ready with effect from 31.08.2016 and wrongly utilized the car, which was
engulfed in the fire.
10. The screen report of car issued by Registering and Licensing Authority Chandigarh as on
17.10.2016, revealed that the above car is still in the name of complainant in the record.
The complainant has been deprived of utilizing her personal use and suffered loss and
harassment in this regard.
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ISSUES RAISED

1. WHETHER THERE IS CASE OF BAILMENT.

2. WHETHER COMLAINANT ARE ENTILE TO GET COMPENSATION.


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THE SUMMARY OF ARGUMENTS

1. THERE IS CASE OF BAILMENT

Since in this case whatever essentials are there to have a bailment contract all the essentials are
here, so on this basis we can say that there is a contract of bailment. Delivery of goods is also
there which shows that the first essential is accomplished from the bailor side.

2. COMLAINANT ARE ENTILE TO GET COMPENSATION.

The Complainant is entitle to get the compensation as there was bailment so bailees are suppose
to do their duties as mentioned, but in the instant case bailee did not perform their duties and
due to that bailor suffered loss, and due to that complainant is entitle to get compensation.
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ARGUMENTS ADVANCED

Issue A- THERE IS A CASE OF BAILMENT

BAILMENT

“Bailment” is defined in section 148 of the Indian Contract Act in the following words:

“A “Bailment” is the delivery of goods by one person to another for some purpose, upon a
contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of
according to the directions of the person delivering them. The person delivering the goods is
called the “bailor”. The person to whom they are delivered is called the “bailee”.”

Explanation- If a person already in possession of the goods of another contracts to hold them as
bailee, he thereby becomes bailee, and the owner becomes the bailor of such goods, although they
may not have been delivered by the way of bailment.

Essentials of the Bailment:

1. Delivery of goods for some purpose.

2. Return of the goods after the purpose is achieved, or their disposal according to the
bailor’s directions

1. Delivery of goods for some purpose

Delivery of goods is given in Section 149 of Indian Contract act 1872 and according to that:

“The delivery to the bailee may be made by doing anything which has the effect of putting the
goods in the possession of the intended bailee or of any person authorized to hold them on his
behalf.”

In Jagdish Chandra Trikha v. Punjab National Bank1 , it was held that the position of the Bank
was that of a bailee and it failed in its duty to take care of the goods and return them to the
Plaintiff. The Bank was held liable to pay the sum of Rs. 3,72,400 along with simple interest @
12% p.a. from the date of the institution of the suit till the date of realization of the amount.

1
A.I.R. 1998 Delhi 266.
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In Kaliaporumal Pillai v. Visalakshmi 2, It was held that there was no bailment as she had not
handed over the possession of the jewels to the goldsmith, and, therefore, the goldsmith could not
be made liable for the loss.

In National Bank of Lahore v. Sohan Lal3, It was held that, as in this case, the locker could be
operated even without the key with the customer, customer’s control over the valuables in that
locker had gone, and the same was with the bank, and, therefore, the bank was bailee and was
liable as such, for the loss of the belongings of the customer in the lockers. In additions to that, the
bank was, of course, also liable on account of its vicarious liability for the fraud committed by the
bank manager.

In L.M. Co-operative Bank v. Prabhudas Hathibai4, It was held that the Government stood in
the position of a bailee and it was liable for having failed to take due care of the goods. Naik, J.
observed :

“The heavy rains (in this case) do not amount to an act of God. It was the duty of the Government
Officers to take care as every prudent manager takes of his own goods. The Government stood in
the position of bailees and it is for them to prove that they had taken as much as care as was
possible for them and that the damage was due to reasons beyond their control.”

In State of Gujarat v. Memom Mahomed, 5 the Supreme Court has also expressed the view that
there is a possibility of bailment even without a contract. It has been observed in this case that “the
bailment is dealt with by the Contract Act only in case where it arises from a contract but it is not
correct to say that there cannot be a bailment without an enforceable contract.

2. Return of the goods after the purpose is achieved, or their disposal according to the
bailor’s directions:

It is clearly mentioned in section 148 of Indian Contract Act 1872, that, the goods “shall, when
the purpose is accomplished, be returned disposed of according to the directions of the person
delivering them.” In every bailment, the same thing is to be returned either in the same form in
altered form.
2
A.I.R. 1938 Mad. 32.
3
A.I.R. 1962 Punjab 534.
4
A.I.R 1966 Bom 134.
5
A.I.R. 1967 S.C. 1885.
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Section 160. Return of the goods bailed, on expiration of time or accomplishment of


purpose:

“It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods
bailed, without demand, as soon as the time for which they were bailed has expired, or the
purpose for which they were bailed has been accomplished.”

Section161. Bailee’s responsibility when the goods are not duly returned:

“If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper
time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from
that time.”

In the instant case all the essentials are satisfied as Complainant has delivered above mentioned
car to opposite parties for some purpose here which is denting and painting. As mentioned above
the essentials of Contract there was a delivery of car and also having some purpose behind it.
Now coming to the second essential return of the goods after the purpose is accomplished, but in
this case after purpose is being accomplished they do not returned to the bailor which means that
there was a fault form the side of opposite parties because as per the section goods are to be
returned as soon as the purpose is accomplished but they do not think that it is necessary, Infact
they kept that goods in their possession, despite the purpose has been accomplished. But in the
instant case they did not performed their duty, and non-performance of duty leads to fault of their
part and due to that bailor face lots of problem even she lost her car due to negligence of their
part. It is clearly written in the facts of the cases that there was negligence from the bailee’s side.

Thus we can say that with the help of the above mentioned case laws we can say that there was a
fault from the bailee side which leads to lose to the bailor.

Issue B - COMLAINANT IS ENTILE TO GET COMPENSATION.

Section 151: Care to be taken by Bailee


“In all cases of bailment the bailee is bound to take as much as care of the goods bailed to him
as a man of ordinary prudence would, under similar circumstances take, of his own goods of the
same bulk, quality and value as the goods bailed.
In Union of India v. Udho Ram and Sons,6 It was held that the railway did not take due care.
Firstly, they did not prove from the record that the railway protection police which escorted the
train was sufficient in strength, and secondly, that unlike a prudent man, the railway protection

6
A.I.R. 1963 S.C. 422.
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police did not keep an eye on wagons, particularly when the train stopped, to prevent the theft
of the goods. The defendants were held liable.

Section 154: Liability of the bailee making unauthorized use of goods bailed:
“If the bailee makes any use of the goods bailed, which is not according to the conditions of the
bailment, he is liable to make compensation to the bailor for any damages arising to the goods
from or during such use of them.
In Alias v. E.M. Patil,7it was held that the bailee was liable to compensate the deceased as also
to the owner of the vehicle because it was an unauthorized use of the vehicle and the liability
was absolute.

From the above mentioned sections and cases cited we can conclude that,
First: There liability of bailee making unauthorized use of goods bailed as there are various
questions which are not answered as to why he kept the car inside his house as the car was
given at garage and also there were enough place at the garage to put the car, he moved car to
his house shows that there was unauthorized use of car which should not be done by bailee. In
this instant case it was not necessary at all to move the car to home from the garage. He was
having another vehicle also which he can use to go to home but he used that car which shows
that there was unauthorized use of the car.
Second: Not taken proper care which was to be taken as a prudent man takes care. There was
various points which says that there was no taken care of goods by keeping that car outside his
garage first of all and also he put that car in his premises where any man can come at night and
put the car on fire, isn’t the proper care taken by him. Mere calling a fire extinguisher does not
mean that care has been taken; there should be a reasonable time also.

Concluding Observation: Proper care was not taken, unauthorized use was also there and due
to all these negligence bailor suffered loss and in Section 154 it is clearly written that if the
damages arise due to negligence of bailee part, bailor is entitle to get compensation from the
bailee as this was caused by bailee itself.

7
A.I.R. 2004 Ker 214.
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PRAYER FOR RELIEF

In the light of facts of the case, issues raised, arguments advanced and authorities cited, it is
being prayed the Hon’ble Commission may be pleased to:

I. Allow the Complaint.

II. Declare that there was bailment and there was negligence from bailee’s side
III. Bailor is Entitle to get compensation.

And pass any other order in favour of the Complainant that it may deem fit in the ends of
justice, equity, and good conscience, all of which is most humbly prayed.

Date: 8th April, 2019 Counsel for the Complainant

Ankit Kumar Paikra


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