Rahmannisa Fadhilah
When traveling using a private vehicle to a certain place, we generally leave the vehicle in the parking lot, as a sign of entering the vehicle, we will get a ticket. Even though you leave your vehicle somewhere with the hope that it will be safe from damage and theft, sometimes there are parking tickets that state that damage and loss of goods and/or vehicles are not the responsibility of the parking operator. Therefore, are these detrimental clauses permitted in Indonesian law?
Customers or parking lot users can be categorized as consumers of parking operator. Consumers are protected by the provisions of the Consumer Protection Law (Law Number 8 of 1999). The inclusion of writing as above (the damage and loss of goods and/or vehicles are not the parking operator's responsibility) on a ticket or parking lot that contains a statement of not being responsible for loss is known as a standard clause. We can see the prohibition on using standard clauses in Article 18 paragraph 1 Consumer Protection Law,
“In offering the goods and/or services for trading, the entrepreneurs are prohibited from making or including a standard clause on each document and/or agreement if:
a. it states the transfer of responsibility of the business agent;
b. it states that the entrepreneurs reserve the right to refuse to receive back the goods already purchased by the consumer;
c. it states that the entrepreneurs reserve the right to refuse to refund for the goods and/or services already purchased by the consumer;
d. it states that it gives the authority to the entrepreneurs from the consumers to carry out directly or indirectly all unilateral actions with regards to the goods purchased on installer the consumers;
e. it regulates concerning the authentication to forfeit the use of the goods or the benefits of the services purchased by the consumers;
f. it gives rights to the entrepreneurs to reduce the benefits of the services or reduce the properties of the consumers as the object of services trading,
g. it states that the consumers are subject to the new regulation, additional regulation, continued regulation and/or continuous change of regulation made unilaterally by entrepreneurs during the period the consumers are using the services they purchased;
h. it states that the consumers give authority to the entrepreneurs to impose mortgage, pledge or guarantee against the goods purchased on installment by the consumer.”
Thus, Article 18 paragraph 1 stipulates that the inclusion of standard clauses by parking operator as a transfer of responsibility is prohibited. Because such a clause can be said to be a form of transfer of responsibility for damaged or lost goods.
According to the panel of judge opinion in the Supreme Court decision No. 3416/Pdt/1985, the parking operator is responsible for any damage to or loss of the customer's vehicle.
If damage and/or loss of goods or vehicle is discovered while parking, the owner has the right to file a civil lawsuit, namely a Tort (unlawful act) based on Article 1365-1367 Indonesian Civil Code.
· Article 1365 Indonesian Civil Code,
“A party who commits an illegal act which causes damage to another party shall be obliged to compensate therefor”
· Article 1366 Indonesian Civil Code,
“An individual shall be responsible, not only for the damage which he has caused by his act, but also for that which was caused by his negligence or carelessness”
· Article 1367 Indonesian Civil Code,
“An individual shall be responsible for the damage which he has caused by his own act, as well as for that which was caused by the acts of the individuals for whom he is responsible, or caused by matters which are under his supervision”
According to the Supreme Court in decision No. 1264/K/PDT/2003 stated that the passive attitude of parking operator can be qualified as an unlawful act as regulated in Article 1365 Indonesian Civil Code. Damage and/or loss of goods or vehicles at the parking location is the responsibility of the parking operator and for consumers who suffer losses can file a civil lawsuit. It is important for us as consumers to know the rights we can obtain, however as consumers we must also minimize the occurrence of damage and/or loss of goods or vehicle caused by negligence. For example, we have made sure the car is locked properly.