National Consumer Disputes Redressal
Canara Bank vs Agnes D'Mello on 23 August, 2005
Equivalent citations: I(2006)CPJ8(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Heard the learned Counsel for the parties.
2. This appeal arises against an order passed in Complaint No. 62 of 1991 by Karnataka State Consumer Disputes Redressal Commission, Bangalore directing the appellant to pay to the complainant a sum of Rs. 1,12,500 for the loss of ornaments kept in the locker of Canara Bank with interest at the rate of 18% p.a. from8.8.1987 tillits payment to the complainant.
3. Learned Counsel for the appellant has submitted that the order of the State Commission could not be sustained on four points. Firstly the complainant was not a consumer. Secondly, the claim of the complainant was barred by time. Thirdly, there was no deficiency in service. Fourthly, the compensation and the interest awarded by the State Commission is on very high side.
4. There is no dispute in between the parties about certain facts. The locker No. 37 was provided to the complainant on 7.5.1987by the appellant bank. The complainant along with her sister-in-law went to the bank on 12.8.1987. Deposited jewelleiy in the said locker. The locker was opened with master key. She locked the locker. Both assured themselves that the locker was properly locked and further verified that the lock of the locker was properly locked and then went home. On 11.6.1987, she went to Muscat. The Manager of the bank informed her sister-in-law by letter dated 13th August, 1987 that the locker was found opened and the jewellery kept in the locker was found missing. She filed FIR with the police. The complainant sent three letters to the bank but the bank did not properly respond to it. Ultimately, she came from Muscat on 9.5.1988 and surrendered lockers key to the bank. She refused to give anything in writing to the Branch Manager about not pressing of her claim.
5. It is also in evidence that locker could not be opened only by a master key. Both the keys that is the master key and the consumer key were used to operate and open the locker. If the locker was open, the master key would not come out of the locker. For the purpose of locking the locker, the master key was not necessary. The consumer's key was enough to lock the locker. It is also evidence of the official of the Godrej Company that if the locker was not properly locked the customer key would not come out, the customer key would come out if it was locked. There is no dispute about the fact that the consumer's key was with the complainant/appellant, which was surrendered by the complainant to the bank in 1988, which was stated by the learned Counsel. The complainant, her sister-in-law CW/3 Alice D'Mello fully supported the case of the complainant. CW/1, John Baptist D'Mello, husband of the complainant and father Velentine Crasta, CW/4 also corroborated her.
6. In this background, we are supposed to consider the submissions made by the learned Counsel for the appellant.
7. As regards the point of complainant/ appellant being consumer, the bank by providing locker was providing service to its consumer to keep its ornaments, etc. safely in the locker of the bank. It is provided on payment of locker charges. The very nature of the locker room and the attendant of the Manager to lock the master key would indicate that the bank is a service provider and the complainant/ respondent was availing the services rendered by the bank. In such circumstances id say that the complainant/appellant is not a service provider and the complainant/appellant is not a consumer would be just misconceived submissions and, consequently, we reject this plea of the learned Counsel.
8. Insofar as the question of limitation is concerned, one should not be oblivious to the fact that before June, 1993,no period of limitation was prescribed under Consumer Protection Act. Section 24A of the Limitation Act was inserted with effect from 18th June, 1993. In such circumstances limitation of two years period could not be said to be applicable in this case. On 9.5.1988, the respondent finally repudiated the claim as submitted by the learned Counsel for the appellant, Sh. Dewan. The complaint was filed on 29th March, 1991 i.e., within three years. Consequently, we do not find any substance in this plea and reject the same.
9. Insofar as the question of deficiency in service is concerned, a person who provides a locker just virtually undertakes to ensure safety of the valuables kept in the lockers. There is no dispute about the procedure. Without master key the locker could not be opened. After it is locked the person who looks after the locker is supposed to see before leaving the office that all the lockers are properly locked. Room of the locker is also supposed to be properly locked to ensure safety. If the locker Manager fails to discharge his duty to ensure safety of the locker room and lockers containing articles and valuables kept therein then the locker Manager and the cocerned bank cannot be absolved until and unless a robbery or dacoity takes place at gun point by breaking open the locker. Even then it will be quite arguable matter. In view the statement of official of the Godrej Co. the key of the consumer could not be taken out without ; locking the locker. There is undisputed evidence that the locker was locked and it was verified by the complainant and her sister-in-law, in view of the statement of the complainants. If for the sake of argument it is taken for granted that it might have not been properly locked, then it | had to be believed that the locker Manager either did not check that all the lockers have been properly locked on that very day or he was negligent and deficient in performing his duty to act in good faith by taking due care and caution. The fact that information of the locker was allegedly found open much later on 8th August, 1987 would make it evident in aforementioned circumstances that deficiency was writ large and the bank could not be absolved from its liability to compensate the respondent.
10. It is submitted that, the locker was rented out to the respondent by the appellant under the agreement dated 7.51987. It Was further contended that Clause 1 and Clause 19 of the Safe Deposit Locker Rules of Business as incorporated in the agreement read as under:
2. It is clearly understood that the relationship between the Banker and the Hirer shall be that of Lessor and Lessee for the Lockers and neither that of Bailor and Bailee, nor that of a Banker and a Customer.
19. The Bank shall not be answerable for any loss or damage to the contents of the Locker arising from any cause whatsoever.
(Emphasis supplied)
11. On this basis, it was submitted that the bank was not answerable for any loss or damage to the contents of the Locker arising from any cause whatsoever. This type of condition has to be read in proper perspective. It may be mentioned that this is subject to implied condition of good faith and good faith requires due care and caution. If due care and caution was kept and the locker was not thrown open to strangers who break open the lockers or otherwise, the bank would be protected. But, in case it is evident that due care and caution has not been observed, the Bank would not absolve itself from the responsibility for the loss. It may further be mentioned if this clause is not read down in terms of good faith and due care and caution in pervert bank official could misuse his position. We do not want to convey that any bank official had broken open the locker. But one has to see the provisions in proper perspective and in proper context.
12. It may further be mentioned that the circumstances indicate an implied contract to ensure safety of the locker and that it was an obligation resembling those created by contract and it has been incurred in the aforementioned circumstances. Since the appellant bank had failed to discharge its obligation of taking due care and caution. The complainant being the injured person by the failure to discharge the said obligation to take due care and caution, the complainant would be entitled to receive the same compensation from the party in default as if the bank had contracted to discharge obligation for safety of the locker in terms of second part of Section 73 of the Contract Act.
13. In the aforementioned circumstances, we feel that the bank could not absolve itself from the responsibility to pay for the loss and damage in the context of the locker and take shelter under the aforesaid rules of business.
14. Now, coming to the question of quantum of compensation it is submitted by the learned Counsel that there was not sufficient evidence. But we are unable to accept this contention. The complainant has amply proved her case. A person who hires locker is supposed to keep some valuables and she produced the list of items and examined her sister-in-law. There is no reason to disbelieve them for it was found opened nearly two months after it was locked. The State Commission has rightly assessed the loss at Rs. 1,12,000. We do not see any reason to disturb that finding.
15. As regards awarding of 18% interest, it is submitted that it is the only just way to compensate for deficiency in service on the part of the appellant. Seeing the rates of interest on fixed deposits in those days, we feel that not more than 12% interest could be awarded at that point of time and accordingly we reduce the same from 18% to 12% p.a.
16. For the aforesaid reasons, we hold that the complainant/respondent is entitled to get interest on a sum of Rs. 1,12,500 with interest @ 12% p.a, from 8.8.1997 till the date of deposit of Rs. 1,79,718 in this Commission on 28.11.2000 on Rs. 1,12,500 the appellant shall be entitled to the remaining amount on account of difference in rate of interest between 18% and 12%. However, the complainant shall be entitled to the interest, which has accrued on 1,12,500 in terms of deposit.
Insofar as the cost is concerned, the cost has been properly awarded and we do not want to interfere with the impugned order in this respect. The appeal is' partly allowed in the aforementioned terms. Parties are left to bear their own cost.