State Consumer Disputes Redressal Commission
The Manager, Uco Bank, Basirhat Branch vs Sri Santosh Kumar Ray, Son Of Late ... on 13 November, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO FA/190/2011 (Arisen out of Order dated 10/03/2011 in Case No.283/2010 of District North 24 Parganas, North 24 Parganas DF, Barasat) DATE OF FILING : 07.04.2011 DATE OF ORDER: 13.11.2013 APPELLANT : 1. The Manager, UCO Bank, Basirhat Branch, Represented by the Manager,UCO Bank, Basirhat Branch, North 24-Parganas Pin 743 411, West Bengal RESPONDENT : 1. Sri Santosh Kumar Ray, Son of late Dhirendra Nath Roy, Vill. Naihati (Bakultala), P.O. Badartala, P.S. Basirhat, District-North 24 Parganas. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya HONBLE MEMBER : Sri Jaganatth Bag FOR THE APPELLANT : 1. Mr. Chittaranjan Bakshi, Ld. Advocate, FOR THE RESPONDENT : 1. Mr. Tapan Kumar Mohanti, Ld. Advocate 2. Ms. S. Roy Chowdhury, Ld. Advocate ______________________________________________________________________ Sri Debasis Bhattacharya , Member
Being aggrieved and dissatisfied with the order dated 10.03.2011 in Case No. 283/2010, passed by the Ld. District Forum, North 24 Parganas, the Manager, UCO Bank, Basirhat Branch has preferred this appeal.
By the impugned order, the Ld. District Forum has allowed the case of the Complainant in part ex parte with cost, and directed the OP Bank to pay compensation for a sum of Rs.3,53,380/- (Rupees three lakhs fiftythree thousand three hundred eighty) towards the value of the stolen ornaments to the Complainant, within one month from the date of the order. It further directed the OP Bank to pay a sum of Rs.1,000/- (Rupees one thousand) as litigation cost.
The case of the Complainant, in his petition of complaint, is that he opened a Savings Bank A/c in the names of himself and his wife, Mina Ray with the United Commercial Bank, Basirhat Branch, North 24 Parganas, on 16.01.2002, being A/c No. 13291. Incidentally, he booked one Locker with the said Bank on 12.06.2007 having No.55, Cabin-B and Key No.8858 in their joint names. He was allotted a surrendered Locker. He and his wife used to keep their golden ornaments of about 16.5 Bharis, comprising 04 golden bangle, 04 Chur, 01 set Sitadul, Ear-top 01 set, 03 piece Chain Har with one Locket Necklace, 01 set with Jhumku Dul, 04 Rings and 01 silver coin (1920). On 10.07.2008, he visited the Bank for the purpose of keeping some new ornaments in the Locker with a Locker Box made for his daughters marriage. Thereafter, on 31.07.2009, at about 10.00 a.m., he went to the said Bank for the purpose of bringing few ornaments from the Locker. After formalities, the Manager, Sri Bholanath Sarkar, pushed his Master-key to open the Locker, but the Locker did not open. Then, the Manager of the said Bank pushed his Master-key second time and the Complainant also pushed his key again, and then the Locker opened. To his utter surprise, he found that the Locker Box with all the ornaments had been stolen/removed/replaced from the Locker, which was completely empty. He brought the same to the notice of the standing Manager, but he did not pay any heed. He suspected that the same was committed by the staff members of the Bank and misappropriated the gold ornaments, which occurred between 10.07.2008 after 12.30 p.m. approx. and 31.07.2009. The Bank officials remained very much reluctant in the matter. Thereafter, he locked the Locker and left the Bank after 12.30 p.m. being helpless and dishonoured. He went to Basirhat P.S. along with his next door neighbour, Shri Anadi Shankar Mishra to lodge a complaint, but the I.C., Basirhat P.S. did not take the F.I.R. The Deputy. General Manager, R.B.I. advised him to pursue the case with the Police authorities. The other Police authority advised him to start Court case against the Bank official for proper investigation against the loss. Accordingly, he has filed a complaint before the Ld. Additional Chief Judicial Magistrate, Basirhat Court, North 24 Parganas against Shri Ranjit Bhattacharya, Senior Manager and others vide No. C/742/10 dated 02.07.2010, who directed the I.C., Basirhat P.S. to treat the complaint as F.I.R. under u/s 156 (3), Cr.P.C. for its investigation, which was made F.I.R. No.263/10 dated 09.07.2010 being G.R. No. 1321/10. The Complainant suspected the role of second customer key or duplicate key, etc. The Bank did not follow the proper norms of safe custody. Accordingly, the complaint case.
None of the OPs appeared in the case to contest. Accordingly, the case was heard ex parte.
It is to be considered if the impugned order suffers from any kind of anomaly in regard to facts and law, or not.
Decision with reasons.
Ld. Advocate for the Appellant has submitted that it was an ex parte order and the UCO Bank had not been made a party. For the last one year before the occurrence, Locker was not operated by the Complainant. No written complaint was filed on that date, but after four days. The Bank has conducted investigation in the matter. The impugned order has been passed against the Bank, but no notice of the case was made to the Bank. It is a case of non-joinder of the Bank, who is a necessary and relevant party. Further, the operation of Locker does not fall within the domain of consumer fora. The F.I.R. in the matter was made about one year after through the Ld. Additional Chief Judicial Magistrate, Basirhat. The relationship between the Bank and the Complainant in the matter of Locker is one of Custodian and Hirer and that of Lessor and Lessee. He also made out that the Cash Memos filed by the Complainant may be obtained dubiously. He has referred some decisions of the Honble National Commission being FA No.45/1990, RP No. 09/1990, O.P. No. 38/1989, O.P. No. 19/1990, O.P. No. 28/1990, R.P. No. 16/1990, O.P. No.28/1990, RP No. 16/1990, O.P. No. 04/1988, O.P. No. 30/1989 and R.P. No. 17/1990, one decision of the Haryana State Commission in FA No. 14/1990 and one decision of the Rajasthan State Commission in CC No.98/1989.
Ld. Advocate for the Respondent has submitted that the Bank is not a party before the Ld. District Forum and so the appeal is not maintainable. The two Bank officials, who have been made party before the Ld. District Forum had not contested the complaint, and so the case was heard ex parte. Only after the Execution Case was filed, this appeal has been made by the Bank. It is a case of reallocation of Locker and the Complainant is the fourth person having allotted the said Locker. It required change of lock. The Bank has provided an imperfect service and thereby made deficiency and negligence. Locker used to remain in the absolute control of the OP. There is no dispute that the authorities of the Bank found fraud committed in the matter. She has also mentioned that F.S.L., Kolkata has submitted a Report in connection with the concerned criminal case before the Ld. Addl. Chief Judicial Magistrate, Basirhat stating that during examination no marks of tampering were observed in and around the key holes on the lid and the edge of the lid of the locker. It was also observed that the operation of the customers key was not smooth while the master key was smooth in operation although on operation of customers key, the locker could opened. However, the lever system of the customers lock was examined and found fresh indentation on its upper most lever plate due to which the customers key operation might not be smooth. She has relied upon a decision of the Honble National Commission, reported in III (2012) CPJ 333 (NC).
First of all, the order has been passed asking the Bank to pay compensation as well as litigation cost to the Complainant. According to Section 15 of the Consumer Protection Act, 1986, any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission. Accordingly, the present appeal filed by the Bank is a maintainable one. The case cannot be simply brushed aside by saying that the relationship between the parties is that of Lessor and Lessee. By hiring a Locker of the Bank, the Complainant became a consumer of the Bank. So, he can rightfully make a claim before the consumer fora under the provisions of the Consumer Protection Act, 1986. There is afterall nothing to show that the Cash Memos in respect of the purchase of the ornaments have been created for the purpose of the complaint case. There was not much delay in the matter of reporting the incident by the Complainant to the Bank. There has been petition of complaint filed before the Ld. Additional Chief Judicial Magistrate, Basirhat being No. C/742/10, u/s 156 (3), Cr.P.C., filed on 02.07.2010, basing on which Basirhat P.S. Case No. 263 dated 09.07.2010, u/s 120 B/461/406/409/420, I.P.C. was started against the two named persons, who have been made OPs in the complaint case before the Ld. District Forum, North 24 Parganas. An elaborate list of items lost thereby has been given in the said F.I.R. There is no assertion that the Police found the F.I.R. being made falsely implicating two officers of the Bank. The Ld. District Forum has made a finding, it is surprising to note that all the gold ornaments were stolen when it was checked and it was opened on 31.07.09. It is most surprising that when it was checked and it was found properly locked how the ornaments could be stolen from the locker. The bank cannot shirk his responsibility as a custodian of the locker. In this case we do not find any negligence of the Complainant but there is negligence on the part of the OP bank. It is very unfortunate that the OP bank did not investigate the matter departmentally nor did they lodge any FIR. The Complainant has given the value of the stolen ornaments amounting to Rs.3,53,380/- at the time of making complaint before the A.C.J.M., Basirhat. The amount is unchallenged.
In view the discussion, held above, Ld. District Forum is of the opinion that the officials of the bank are negligent as the locker was found with no ornament inside, as it was for the bank to render the necessary service to safeguard the custody of the ornaments. Thus, the Complainant is entitled to get the compensation towards the value of the stolen ornaments .There is no anomaly in such findings. The Ld. District Forum has allowed the case in part allowing compensation of a sum of Rs.3,53,380/- (Rupees three lakhs fiftythree thousand three hundred eighty) towards value of the stolen ornaments. There is nothing on record before us to the contrary. On consideration of all such facts and figures as well as the respective decisions relied on by the parties, we do not find any anomaly in the findings of the Ld. District Forum. The impugned judgment and order is found sustainable in law and on facts.
Hence, ORDERED that the appeal be and the same is dismissed on contest but without cost. The impugned judgment and order is hereby affirmed.
MEMBER MEMBER