National Consumer Disputes Redressal
Mahender Singh Siwach, Mr. Nitin Gupta & ... vs Punjab And Sind Bank, Mr. Parvinder ... on 3 October, 2006
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO.220 OF 1998 1. Mahender Singh Siwach S/o Late Shri Padam Singh, 2. Smt. Rajendri Devi, W/o Shri Mahendra Singh Siwach, Both resident of G-88, Pandav Nagar, Meerut 250 001. Complainants Vs 1. Punjab and Sind Bank Head/Regd. Office : 21, Rajendra Place, New Delhi. Meerut Branch : Begum Pul, Meerut. 2. Smt. Chhavi Singh, W/o Shri Manoj Kumar Singh, R/o G-88, Pandav Nagar, Meerut 250 001. Opposite Parties BEFORE: HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER For the Complainants : Mr. Nitin Gupta and Mr. Nagendra Singh, Advocates For the Opp. Party : Mr. Parvinder Singh, Advocate Dated : 3rd October, 2006 O R D E R
PER MRS.RAJYALAKSHMI RAO, MEMBER This case reveals to what extent the bank officers can be either negligent or commit fraud. Admittedly, the bank locker was allotted to the Complainant by Punjab and Sind Bank, Begam Pul Branch, Meerut, U.P., in the year 1979. It was broken open at the instance a person who had already surrendered the locker on 24th October, 1997, i.e. virtually after 18 years as if he has kept the articles in the locker and was permitted to take it away golden jewellery with the connivance or active participation of the officers concerned. For the loss suffered by the Complainants with regard to the golden ornaments belonging to the Complainants and the golden jewellery and ornaments belonging to the daughter-in-law whose marriage was performed in January, 1996, the Complainants are required to knock the doors of this Commission. Unfortunately, they are required to wait for years, because all sorts of defences are raised in such complaint. For the reasons stated below, we hold that there is nothing on record to establish that whatever is stated by the Complainants in the FIR is in any way erroneous and on that basis, we accept this complaint and award the amount as prayed for.
Facts:
Mr.Mahender Singh Siwach, Complainant No.1 and his wife Smt. Rajendri Devi, Complainant No.2 filed this complaint alleging deficiency in service on the part of the Punjab and Sind Bank, Opposite Party No.1. Smt. Chhavi Singh, daughter-in-law of the Complainants, is the O.P. No.2, proforma party. Complainants Nos.1 and
2 were allotted Locker No.131 and allocated Key No.143 in the Punjab & Sind Bank, Begum Pul Branch, Meerut since August 1979. They had been paying the rental charges regularly and operating the said locker. All the valuables of the Complainants were usually kept in the said locker for safety purposes. The Complainants last operated the locker in April 1997 and the items kept in the locker, as mentioned in the FIR, are given below:
List of Articles
1.
A set of Pearl and Diamond (A diamond Necklace, Finger Ring & Bracelet)
2. A set of Ruby and Diamond ( A Necklace, Kundal and a Ring)
3. A Gold set imbedded with Red and White Stones and Meena (A necklace, Kundal and a Finger Ring)
4. A Gold set (A Necklace Longe one, Finger Ring and two Kangans)
5. A Gold Set (A Gold set, a Necklace, Kundal and Finger Ring)
6. A Gold Set Embedded with stones (A Necklace, Ear Jhumkas and a Finger Ring)
7. Two Gold Dustband Embedded with Stones
8. A Gold Teeka
9. A Gold Tika Embedded with Stones
10. A Gold Nose Ring
11. 3 Gold Finger Rings
12. A Gold Ring Embedded with Meena
13. Eight Gold Ginnies
14. Two Silver Payals
15. A Gold Set (A Necklace, Kundals and a Finger Ring)
16. A finger Ring of Firoza
17. Rs.101800/-
(Rupees One lac eighteen hundred) in cash
18. Gold Pieces and Gold Ginnies (Weight about 285 Gm.) The above items belonged to the Complainants and O.P.No.2, their daughter-in-law. On 10th March 1998, Complainant No.1 visited the bank and tried to open the locker with the key in his possession but it did not open. The Manager of the Bank called a locksmith to open the locker and then, on his revelation, it came to light that the said locker had already been opened earlier by breaking its lock on 24th November, 1997 at the instance of one Mr. Ramender Singh, who was the alleged previous allottee of the said locker. The bank officials/officers further confirmed that Ramender Singh Grover had removed all the contents of the locker.
Learned Counsel for the Complainants allege that it was a fraud, default and misconduct on the part of the Branch Manager of the opposite party No.1, Bank. A legal notice dated 6th April, 1998 in this regard was served upon the bank. The Bank in their defence sent a reply dated 6th May, 1998 to the Complainants that it was a case of mistake/negligence on the part of their staff. In their reply the bank made the following statement:
That as no list of inventory is being made by the Bank when a customer of Locker placed his articles in it, so when claim of your client will be vetted by any legal authority/competent Court of Law, my client will compensate your client and my client will do all things to keep and uptodate trust of its customers.
Learned Counsel for the Complainants submits that Complainant No.1 made a complaint to the police immediately on coming to know about removal of the jewellery from the locker and in that report the Complainants disclosed all the items of jewellery.
Mr. Ramender Singh Grover who was the earlier allottee of the locker in the O.P. Bank was arrested by the police, and he admitted the fraud/theft and surrendered to the bank a sum of Rs.1,01,800/- in cash and melted gold and coins weighing 289.980 gms. The bank, in turn, handed over the said amount and the gold to the Complainants.
The loss suffered by the Complainants on account of the theft of their jewellery is categorized and given as under:
Sl. No. Particulars Weight Value
1.
Ramnavmi set with stones 290.70 1,22,094/-
2. One set of necklace, etc. made of gold 185.30 77,826/-
3. One set of necklace, etc. made of gold 198.650 83,433/-
4. One pair of dastband made of gold 188.400 79,128/-
5. One teeka made of gold 28.700 12,054/-
6. Three gold rings 39.500 16,590/-
7. One gold ring studded with enamel (meena) 9.400 3,948/-
8. Eight gold ginnies costing Rs.3,800/- each 80.000 30,400/-
9. Two pairs of silver paajeb (at the rate of Rs.5500/- per kg.) 1125.000 6,187/-
10. One gold set comprising of necklace etc. studded with meena 235.40 98,868/-
11. One gold set comprising of a tora and two pairs of karas (a heavy set of necklace with two pairs of bangles) 552.20 2,31,924/-
12. One gold teeka studded with stone 19.500 8,190/-
13. One gold nath (nose ring) 11.500 4,830/-
14. One ring made of gold and feeroza 7.400 (weight of gold only) 3,100/-
15. Pieces of gold and six ginnies each ginny weighing 10 gms. Valued at Rs.3,800/-
60.000 (ginnies) 22,800/-
94,500/-
16. One diamond and pearl set comprising of a necklace, a bracelet and a finger ring and tops 225.000 (gold pieces) 5,25,000/-
17. One diamond and ruby set comprising of a necklace, a finger ring, a pair of bangles and two ear kundals 4,50,000/-
18. Cash 1,01,800/-
Total 19,72,680/-
Less value of six ginnies weighing 10 gms. Each (Rs.3,800/-) per ginny) and the price of the melted gold weighing 229.980 gms. Bank plus Rs.1,01,800/-
in cash, all received from the respondent Bank.
(Rs.22,800/- + Rs.96,591/- + Rs.1,01,800/-) 2,21,191/-
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Net : 17,51,489/-
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The weight and value of the jewellery assessed as above is made on the basis of the valuation report dated 6th December, 1996 given by the Government approved valuer of the Complainant.
It is submitted by the Learned Counsel for the Complainants that Complainant No.1, who is a retired Deputy Director from Department of Agriculture, Government of U.P, Complainant No.2, his wife and O.P.No.2, who is their daughter-in-law, were in a state of shock. Learned Counsel for the Complainants further stated that womenfolk in India have sentimental attachment with their jewellery and even a small loss of the same has a shattering effect on them and causes great mental agony.
Complainants have claimed a sum of Rs.18 lakhs for total loss and Rs.5,00,000/- for the mental shock and harassment to their family.
As against this, Learned Counsel for the opposite party submitted that locker No.131 was allotted originally to Mr. Ramendra Singh Grover on 18.1.1978 and that he surrendered this locker during 16.3.1978 to 21.8.1979 and key of the said locker was handed over to Banks custodian official. At that time the concerned official did not take the signature of the hirers on the released clause of specimen card. The subsequent allotment to the Complainants of the same locker was not recorded by the Bank officials as well as surrender of the locker by Ramendra Grover was also not indicated on the locker sheet of the said locker. The same locker was allotted subsequently to the Complainant on 21.8.1979, without the above formalities, which was being operated by them since then.
It is alleged that the Banks original locker sheet continued to be in the name of Ramendra Singh Grover which showed a large amount of arrears of rent and hence, a registered notice was sent on 1.8.1996 and a legal notice was served on him on 17.11.1997. On receipt of the same, Ramendra Singh deposited rent of Rs.2,135/- on 20.11.1997 and gave a letter to the bank with the request that his key was lost and that the Bank allowed the breaking of the locker on 24.11.1997. Accordingly, breaking of the locker No.131 was allowed by the Bank and Ramendra Singh took away the articles placed therein on 5.3.1998. In a routine manner Opposite party fixed the door of the locker No.131 on 5.3.1998.
On 10.3.1998 when the Complainants visited the Bank to operate the locker No.131, it could not be opened. Subsequently, when it was found that it was the same locker that was broken at the request of Ramendra Singh, it was only then the fraud was realized and the bank official contacted Ramendra Singh. He was brought to the bank and cash in sum of Rs.1,01,800/- alongwith melted pieces of gold coins measuring 289.980 gm were recovered from him and the same were handed over to the Complainants.
Learned Counsel for the bank submitted that FIR was lodged on 10.3.1998 and case No.78/98 under Sections 406, 420 of IPC was registered and the investigation is going on. It is admitted by the opposite party Bank, that the mistake was committed by the official inadvertently and that they did not foresee that fraud could be committed by Ramendra Singh. In reply to the notice given by the Complainants opposite party in their letter dated 6.5.1998 admitted that if the claim of the Complainants would be vetted by legal authority/competent Court of Law then they would compensate accordingly.
Learned Counsel for the opposite party contended that under Clauses 18 and 21 regarding the terms and conditions of hiring and operation of the locker in the bank the lessee cannot assign or sub- let the locker and these clauses are reproduced as under :
Clause 18:
The lessee cannot assign or sub-let the locker, or any part of it, nor use it for any purpose other than the deposit of valuables and other property, nor can the lessee use the locker for the deposit of any property of an explosive and/or destructive nature. All such subletting or assignment shall be void.
Clause 21:
The relationship between the bank and lessee shall that of a landlord and a tenant and not that of a bailer or bailee. The bank has no responsibility or liability of any kind whatsoever, in respect of the contents of the locker, nor shall the bank be held responsible for any loss or damage to the same, arising from any cause whatever.
It is further submitted that according to the above terms of Clause 18 the major part of the claim is being made with regard to jewellery of the Complainants daughter-in-law, who became the third person and that she is not the hirer of the locker. Further, Ramendra Singh admitted that he had taken away the contents of the locker and in the presence of the Complainant no.1 and his relative it was stated that he was returning all the contents of the locker, i.e. cash and entire jewellery after its conversion. It is contended that the question of contents of the locker and their value required detailed examination and evidence which cannot be determined in a summary fashion under Consumer Protection Act. Since the decision of the criminal case is still awaited, it cannot be ascertained as to who was responsible for the above loss.
It is pointed out that under Clause 21, bank cannot be held responsible for the said loss of the contents of the locker as they have no knowledge of the same.
Pending hearing of the complaint, interrogatories were filed on behalf of the O.P.No.1 to be replied by Shri Hansraj Kohli of Paras Jewellers who is the government approved valuer and by Shri Mahendra Singh Siwach, the Complainant No.1:
a) Whether after the valuation of the jewellery done from Hansraj Kohli, wealth tax returns have been filed by Complainants son or daughter-in-law?
b) Whether they could produce copies of sons/daughters-in-law income tax returns?
c) Whether any professional fee was charged for valuation of the jewellery of Complainant no.2 and her daughter-in-law?
d) What was the valuation of the jewellery?
While answering the interrogatories, Mr.Kohli filed an affidavit stating that he charged Rs.5,000/- as professional fee from Shri M.S. Siwach for the valuation report in respect of the jewellery of his wife and his daughter-in-law. He further stated that he came to know Mr. M.S. Siwach on 6.12.1996 when he was approached for the purpose of evaluation of jewellery and then only after interrogatories have been filed now the Complainant No.1 contacted him. He further stated that his Chartered Accountant Shri H.L.Tandon, now deceased, had informed him on phone that Mr. Siwach would approach him for the purpose of evaluation of jewellery. It is also stated that he neither knew Mr. Siwach nor his family members personally.
Answering the interrogatories filed on an affidavit the Complainant Mr. Mahinder Singh Siwach stated that he contacted his lawyer Shri Mukul Kumar Sherawat who contacted Shri H.L. Tandon, the Chartered Accountant of Delhi, who in turn suggested the name of Shri Hansraj Kohli, a Government Approved Valuer. It is further stated that he himself or his wife or his son or daughter-in-law never filed wealth tax returns as the amount did not necessitate the same. As regards income-tax returns Mr. Siwach stated that he retired in the year 1996 from a senior class-1 Officers post, Deputy Director (Agriculture), U.P. Till his retirement his income-tax on salary was deducted at source and at the close of each financial year he filed statement for the same. After his retirement he did not file any income-tax returns and it was from the year 2000-2001 onwards when filing of income-tax returns became compulsory, he started filing the same. His son Shri Manoj Kumar joined government service as Assistant Engineer in the year 1991 and his income-tax on his salary was deducted at source and that he also started filing income-tax returns from the year 2000-2001 under law. As regards the daughter-in-law, it is stated that she is not an income-tax assessee.
Finding:
We heard both the parties and perused the record containing wedding photographs of the daughter-in-law, Mrs.Chhavi Singh, wearing the jewellery; interrogatories; affidavits; and statements recorded in the criminal complaint. The issues which have to be determined are:
a) Whether there is any deficiency of service and negligence on the part of the opposite party , Punjab and Sind Bank towards the Complainants ?
b) If so, what is the amount that is payable to the Complainants.
We find that the record itself proves gross negligence and deficiency in service on the part of the opposite party Bank in rendering service. Firstly, O.P.s argument is that fraud committed by Mr. Ramendra Singh Grover, the third party in removing the contents of the locker comes under criminal jurisdiction, has no relevance as regards enforcement of civil liability against the opposite party Bank under Consumer Protection Act. There is no other valid argument given on behalf of the bank except to contend that they did not know the details of the contents of the locker and hence the Bank cannot be made liable. The Bank officials admitted their mistake and stated that they are liable to compensate for the same. It is also interesting to see the evidence produced on record, i.e. an extract from the order of the Learned Sessions Judge, Meerut dated 22.4.1996 granting bail to Mr. Grover which is reproduced hereunder:
It appears that the alleged crime could not have been committed without the connivance of the bank authorities. If the locker in question was allotted to the applicant in the year 1978, it is not clear how it could be allotted to Mahendra Singh Siwach in the year 1979. Further, when Mahendra Singh Siwach has been operating the locker for all these years having his account No.284 it is not understandable how the Bank could without verifying from record, accept the request of the applicant that the locker be broken open as the key had been lost. It was necessary for the bank authorities to have referred to the bank record and should have also intimated Mahendra Singh Siwach about this request of the applicant. Not only this, the bank authorities in the circumstances mentioned above should have prepared an inventory of the articles and should have got them valued before handing over the same to the applicant. It does not appear that the police has taken any action against the concerned delinquent bank official. The applicant-accused claims that he was the owner of the property kept in the locker and the locker belonged to him. In these circumstances, when no action has been taken against the bank authorities, I think it proper to release the applicant also on bail.
Mr. Ramendra Singh Grover in his statement admitted as follows:
In the year 1978, removed all the articles from it and thereafter went to America and lived in America. I returned from America in the year 1997 after the death of my mother in the year 1996. Bank had issued a notice to me that rent of locker and legal fee were due. After this I approached the Manager and informed him about the loss of key. How would locker be opened? On this he informed that an employee from Godrej Company would be called, key would be matched or locker would be broken open. After this I visited the Bank in November, 1997.
Manager, concerned bank official and locksmith were called, locker was broken open and I took home the contents of the locker. I saw the articles at home and realized they were not mine . I thought as to who had kept them in my locker I also got greedy. Took the gold and got it melted in Delhi and sold the diamonds and jewellery in Bombay . I have given whatever cash and gold were with me to Bank and Mahendra Singh Siwach. I have committed a mistake I tried to misappropriate their articles.
The above statement made by the accused who took away the golden ornaments from the locker leaves no doubt that fraud was committed in connivance with the officers of the bank. Otherwise, a person who had surrendered the locker in the year 1979 could not have thought of contending that he was prepared to pay the rental and that locker be broken open as the key was lost. The learned Sessions Judge has also observed that in any set of circumstances it was the duty of the bank officers to refer to the register which would have indicated that Mahender Singh Siwach (Complainant) was allowed the locker and in any set of circumstances the inventory ought to have been prepared before handing over the same to the accused.
Hence, it is a clear case of fraud played on the Complainants. This could not have been done without the connivance of the bank officials/officers. It is rightly pointed out by the Sessions Judge in the criminal proceedings questioning, why the bank officials have not been made responsible when the crime itself proves that the bank is a party to this fraud. There is no whisper by the Bank as to who were in-charge of the lockers; who were responsible for this fraud or whether any action was taken against them?
It is very strange that the opposite party has not referred to the duties cast on them under their own instruction manual which is on the guidelines of the Reserve Bank of India to support their case. Similar Manual of Instructions of United Commercial Bank on the guidelines of Reserve Bank of India filed by the Complainant is reproduced hereunder:
Maintenance of Record 6.1 Locker Register (Form G -126) This Register should be maintained lockerwise in serial order so as to facilitate locating the details of the hirer from the locker number. All the details such as the name(s), their addresses, operational instructions, rent paid, etc., should be recorded. The name(s) of the hirer(s) should be indexed in the Register according to alphabetical order.
6.4 Locker Key Register The branch should also maintain a Locker Key Register. This should be maintained keywise to lockerwise and lockerwise to keywise so as to facilitate tracing the number of Locker from the Key number and tracing the number of Key from the Locker number.
Moreover, when the locks of the lockers are interchanged, such changes should be immediately recorded in the Locker Key Register. It should be marked Strictly Private and should be kept in personal custody of Custodian of locker cabinets. A suggested proforma of Locker Key Register is given in Annexure 1.
6.5 Daily Register of Access to Hired Lockers (G-125) Signature of the operator on Locker should be obtained in this Register. Date and time of operation should also be recorded therein.
6.6 Branch should also maintain a pass book to keep a record of total number of Lockers hired and number of Lockers surrendered so that it is possible to find out at a particular time the number of Lockers let out and number of Lockers lying vacant.
At the time of half yearly closing, the stock of keys on hand should be verified in reference to Lockers lying vacant.
12.3.1 Breaking Open of Locker Due to Loss of Key When intimation has been received from hirer(s) about loss of key, the following procedure should be adopted for breaking open the Locker :-
(a) An application should be obtained from hirer(s) requesting for breaking open the Locker.
(b) The charges for breaking open the Locker should be realized from the hirer in advance and kept in Sundry Creditors Account.
(c) An appointment should be made with the agents of the makers of lockers cabinet, to send their mechanic to drill open the Locker in consultation with the hirer(s).
Locker should be broken open in the presence of the hirer(s), the Manager, Accountant and Custodian of the locker cabinet, and one respectable witness. A suitable remark about breaking open of Locker should be made in Locker Register, Renewal Diary and Specimen Signature Card.
The procedure laid down by the Reserve Bank of India guidelines has been completely flouted by the opposite party by not maintaining the locker register, locker key register, non-payment of rent dues and lastly the procedure that should be adopted for breaking open a locker etc. In view of the statements made by the Complainants and their daughter-in-law and her maternal uncle; admission of theft by Mr. Grover; admission of the bank officials that it was an inadvertent mistake, we find that the arguments of the opposite party-Bank that the bank cannot be responsible and that the relationship between the bank and the Complainants is that of the tenant and landlord and not that of bailer or bailee are untenable in the present case. Keeping jewellery of children in the locker of elders/parents is not uncommon. The Complainants have made honest statement of the contents in the FIR at the very first instance. An affidavit by the Complainant alongwith an affidavit of the Government Valuer who evaluated the ornaments much earlier to the incident is also filed.
The next question would be, what would be the quantum of liability of the Bank?
Firstly, in our view, there is nothing on record to suggest or indicate that the statements made by the Complainants in the FIR which was lodged immediately was in any way erroneous. An exhaustive list of the golden ornaments which were kept in the bank locker was given by him.
In support of the said claim made in the FIR the Complainants have produced on record their affidavits, the affidavits of their daughter-in-law and the maternal-uncle of the daughter-in-law, to establish that major part of the ornaments were given to the daughter-in-law at the time of her marriage which was performed in January, 1996. In support thereof, her maternal-uncle, Shri Surender Singh stated that on the occasion of marriage of Mrs.Chhavi Singh her mother Smt. Shakuntla Devi, who died on 5th August, 1996, had bestowed the said jewellery. The jewellery was purchased by encashing FDRs/Kisan Vikas Patras for the purpose of her marriage. Smt.Chhaving Singh, the daughter-in-law, has also filed an affidavit to the same effect and has produced on record the photographs taken at the time of her marriage which was performed in January, 1996 revealing that she was wearing the jewellery to a large extent. This evidence is a clinching evidence. And, there is no reason to disbelieve the said evidence.
Apart from this, even the person who committed fraud (the accused) has also admitted in his statement that he took the golden ornaments, got it melted in Delhi, sold the diamonds and jewellery in Bombay. There is nothing on record how much he has received for the diamonds and the jewellery sold at Bombay. There is nothing on record that he surrendered the entire golden ornaments after melting it in Delhi.
In this set of circumstances, we have to rely upon the affidavit of the valuer, Shri Hansraj Kohli. That valuation, as per the say of the Complainant, was because their Advocate directed them to get it valued, may be for the purpose of wealth tax/income tax.
Finally, we have to say that in such case there cannot be any other evidence. Hence, we have to accept that the Complainants have lost golden ornaments and jewellery valued at Rs.17,51,489/-.
In view of the above discussion, we find that there is clear deficiency in service and gross negligence on the part of the Bank. When the Complainants are paying rent for the locker and entrusting their valuable articles in the safe locker and show their trust in the bank, it is the duty of the bank to protect the valuables of the clients and maintain proper records of opening/closing of lockers, entry ledgers etc. Bank should have taken necessary action on their own employees instead of accusing and disregarding the report and affidavits of the Complainants as to the value of the contents kept in the locker. It was a great shock to the family when they found the entire contents of their locker vanished. The assurance of the Bank that they will provide complete security becomes a myth when the Bank takes a consistent stand of finding fault with the consumer.
In the result, the complaint is allowed. We direct that the Opposite Parties No.1, the Punjab and Sind Bank, shall pay Rs.17,51,489/- with interest at the rate of 9% p.a. from the date of filing of the complaint, i.e. 29th October, 1998, till the date of payment. This order shall be complied with within four weeks time, alongwith an amount of Rs.25,000/- to compensate the costs in pursuing the claim from the year 1998, for mental agony and harassment caused to the Complainants by the opposite party, Punjab & Sind Bank.
The Original Petition is allowed accordingly.
J (M.B. SHAH) PRESIDENT ..
(RAJYALAKSHMI RAO) MEMBER P