State Consumer Disputes Redressal Commission
Vivek Agarwal & Ors. vs Indian Overseas Bank on 19 May, 2010
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR COMPLAINT NO: 33/2009 1. Sh. Vivek Agrawal s/o Sh.V.K.Agarwal r/o S-15 Trikoot Bhawan, Ambabari, Jaipur. (Raj.) 2. Smt.Rashi Agarwal w/o Sh.Vivek Agarwal r/o S-15 Trikoot Bhawan, Ambabari, Jaipur. (Raj.) Complainants Vs. 1. Indian Overseas Bank through its Br.Manager, Bhawani Niketan College Campus, Sikar Road, Jaipur ( Raj.) 2. Indian Overseas Bank through its Chairman and M.D. Central Office 763, Annasalai Chennai-600002. Opposite parties Date of Order 19.5.2010 Before: Hon'ble Mr.Justice Sunil Kumar Garg- President Mrs.Vimla Sethia- Member Mr.Shashi Kumar Pareek-Member 2 Mr.J.P.Sharma counsel for the complainant Mr. Ankur Saxena counsel for the opposite parties ORDER
BY THE STATE COMMISSION (PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT ) This complaint u/s 17 of the Consumer Protection Act, 1986 ( hereinafter referred to as " the Act of 1986" ) has been filed by the complainant before this Commission on 23.7.09 against the opposite parties bank with a prayer that opposite parties no. 1 & 2 be ordered to pay to the complainants a sum of Rs. 31,00,000/- as mentioned in para 17 & 18 of the complaint alongwith interest @ 24% p.a. from the date of incident and further to pay a sum of Rs. 1 lac as cost of litigation etc.etc.
2. The brief facts of the complaint are as follows-
That the complainants had hired a locker from opposite party no.1, the Indian Overseas Bank at Jaipur bearing locker no. 73. It was further stated in the complaint that since the size of that locker was small, the complainants had surrendered the abovementioned locker and hired another big locker bearing no. 120 on 21.8.08 from the opposite party no.1 and in new locker apart from the goods and ornaments which were kept in old locker no. 73, additional gold ornaments, coins etc. were 3 also kept in the new locker on 21.8.08. It was further stated in the complaint that the new locker was duly locked and the same was verified by the officials of the opposite party no.1. It was further stated in the complaint that opposite party no.1 was charging the locker rent for keeping the locker in safe custody and since the services were being provided by the opposite party no.1 and hired by the complainants after paying the charges, therefore, the complainants are consumers.
It was further stated in the complaint that on 24.8.08 the opposite party no.1 had informed the complainants through letter dated 24.8.08 Anx. 1 in the following manner-
" We are extremely pained to inform you that there has been a burgalary in our branch on the mid night of 23/24.8.08. The burgalars have cut opened our strong room, cash safe and some of the lockers.
Unfortunately your locker no.
120 has also been cut opened.
The matter is under police investigation. FIR has been lodged with P.S. Jhotwara, Jaipur and we shall revert to you for further development. This is for your information"4
It was further stated in the complaint that thereafter the complainants had to rush to the opposite party no.1 bank and thereafter to the Police Station Jhotwara. It was further stated in the complaint that in the FIR the loss of the bank due to burglary was mentioned but the loss of the customers including the complainants were not mentioned.
It was further stated in the complaint that on 25.8.08 the complainants had written a letter Anx. 3 to opposite party no.1 bank indicating that theft had taken place because of the grave deficiency in service on their parts and thereafter the complainants had approached the Police Station Jhotwara and had submitted a list of the articles which were kept in the locker and the same was also addressed to opposite party no.1 bank on 27.8.08 through Anx. 4.
It was further stated in the complaint that the complainants had met officials of opposite party no.1 bank from time to time but no relief was given to the complainants by opposite party no.1 bank and thus, a legal notice dated 5.5.09 was given by the complainants to the opposite parties.
It was further stated in the complaint that the burglary had taken place in the bank of opposite party no.1 due to lack of proper security arrangements made by opposite party no.1 and thus for that burglary the 5 opposite party no.1 should be held guilty for deficiency in service.
FACTS ABOUT THE POLICE CASE It was further stated in the complaint that during investigation of FIR no. 676/08 the Police Station Jhotwara had apprehended some culprits who were alleged to have committed the burglary in the bank on 24.8.08 and had recovered the ornaments of the complainants which were kept in the locker no. 120 of the complainants from the one accused on 10.9.08 through seizure memo dated 10.9.08 . It was further stated in the complaint that after burglary committed by the thieves, the locker was cut opened by the burglars with the help of gas cutters and in doing that job, the ornaments which were kept in the locker were destroyed to some extent or had lost its original shape and thus they could not be used without re- making and thus the complainants had assessed the loss as under-
S,no.
Particulars Amount 1 Gold ornaments ( 1 kg.) @ 16000/- per 10 gm.
Rs.16,00,000/-
26 gold coins @ 17000/- each Rs. 1,02,000/-
38 Gold ginnies @ 16000/- each Rs. 1,28,000/-
43 kg. Silver @ 22000/- per kg.
Total Rs. 66,000/-
Rs.18,96,000/-
It was further stated in the complaint that the 6 complainants are elegible to recover the following amounts from opposite parties-
S.no.
Particulars Amount 1 Gold ornaments & other exps. As per para no.
14 of the complaint Rs.18,96,000/-
2Amount of new jewellery to be purchased as per para no. 14 of the complaint Rs.2,04,000/-
3Making charged of ornaments as per para no. 16 of the complaint Rs. 2,00,000/-
Total Rs.23,00,000/-
It was further stated in the complaint that the complainants are further entitled to recover a sum of Rs. 7 lacs as compensation for mental agony etc. etc. A reply was filed by the opposite parties on 18.1.10 and following preliminary objections have been taken by the opposite parties for adjudication-
(i) That since the controversy involved in this case pertains to a criminal case which is also pending before the competent criminal court, therefore, this Commission had no jurisdiction to decide the matter in question and thus the complaint filed by the complainants is not maintainable.
(ii) That as per the agreement executed between the complainants and opposite party no.1 dated 21.8.08 Anx. R-1 and as per terms and conditions thereof the complainants are estopped from 7 questioning the bank for stolen of the ornaments in the incident of theft which had taken place in the bank.
(iii) That in condition no. 11 of the Safe Deposit Memorandum of hiring of lease ,it was clearly mentioned that the bank would not be responsible for any damages or loss to the contents kept in the safe deposits vault as a result of any act of war or civil disorder or theft or burglary and the contents would be kept by the hirer at his sole risk and responsibility. In light of above, for the loss of ornaments in the incident of theft/ burglary, the bank cannot be held liable.
(iv) That on the basis of the FIR bearing no. 676/08 lodged by the opposite party no.1 with the Police Station Jhotwara, a criminal case no. 1019/08 State Vs. Anil Kumar was instituted and the same is pending before the Judicial Magistrate no.3 , Jaipur City and in that criminal case the complainants had moved an application on 10.11.08 under section 457 Cr.PC alongwith list of ornaments and valuables of the complainants with the prayer that the articles recovered by the police during investigation be handed over to the complainants on Supurdnama and that application is marked Anx. R-2.
8(v) That on 24.1.09 through Anx. R-3 the opposite party no.1 bank had informed the Judicial Magistrate no.3, Jaipur city before whom the criminal case was pending that the bank had no objection if the goods/ ornaments recovered by the police during investigation are handed over to the complainants on Supurdnama.
(vi) That the said application was got dismissed in default and for non- prosecution and non- appearance of the complainants on 20.4.09. It was further stated in the reply that since the ornaments recovered by the police could be given to the complainants after the decision of the criminal case and from that point of view also, the complaint is not maintainable.
It was further stated in the reply that in keeping the ornaments in the locker, all security arrangements were made by the opposite party no.1 and it was wrong to say that the burglary was done due to lack of proper security arrangements on the part of opposite party no.1 but unfortunately the incident had taken place though proper arrangements for security were taken by opposite party no.1 bank and thus the bank could not be held liable for that as no deficiency in service in respect of making security arrangements can be attributed on the part of the bank. Hence, it was prayed that complaint be dismissed with costs.
93. From the pleadings of the parties, the following undisputed facts have emerged-
(i) That the facility of locker had been provided by the opposite party no.1 to the complainants and the locker number of the complainants was 120 which they have got on 21.8.08.
(ii) That on 24.8.08 through Anx. 1 the opposite party no.1 bank had informed the complainants that burglary had taken place in the bank and in that burglary the locker of the complainants had also been cut opened by the burglars and for that incident FIR was lodged on behalf of the opposite party no.1 bank to the Police Station Jhotwara bearing FIR no.676/08 and as per the contents of the FIR the locker which was cut opened by the burglars were found empty meaning thereby all the goods/ ornaments which were kept by the complainants in locker no. 120 were found missing.
(iii) That after the incident the complainants had given a list of articles which were kept by them in the locker no. 120 to the SHO Jhotwara and the copy of that list was also supplied by them to opposite party no.1 on 27.8.08 and as per list 19 articles were kept in the locker and they all were found missing and most of the articles mentioned in the list are of gold articles.
10(iv) That during investigation of the FIR, the police had apprehended some culprits and through Fard dated 10.9.08 all the articles belonging to the complainants which were kept in locker no. 120 and which were stolen away by the culprits in the night of 23/24.8.08 were got recovered from one of the accused of that criminal case and they were seized by the police.
Note- In this case there is no dispute on the point that all the articles kept by the complainants in locker no. 120 were got recovered by the police from one of the culprits during investigation.
(v) That the police after usual investigation had submitted a challan against Anil Singh, Saurabh Sharma, Yogesh Sharma for committing offences under sections 457, 380, 427 IPC before the Judicial Magistrate no. 3, Jaipur city and in that challan, both complainants have been shown as witnesses to the prosecution and that criminal case no. 1019/08 is still pending before the Judicial Magistrate no.3 Jaipur City .
(vi) That during the pendency of the criminal case, an application was moved on behalf of the complainants before the Judicial Magistrate no.3 Jaipur City under section 457 CRPC with a prayer that the articles recovered from the accused persons be returned to the complainants on Supurdnama.
11(vii) That on that application, the opposite party no.1 bank through letter dated 24.1.09 had informed the Judicial Magistrate no. 3 Jaipur city that if the articles recovered from the accused persons in the abovementioned criminal case are handed over to the complainants, the opposite party no.1 had no objection.
(viii) That from the ordersheet dated 20.4.09 of the criminal case, it appears that the application filed by the complainants by which articles were demanded to be released on Supurdnama was rejected on the ground that none had appeared on behalf of the complainants, meaning thereby all the articles belonging to the complainants recovered by the police are still lying in the custody of the criminal court.
4. From the pleadings of the parties the first question that arises for consideration before this Commission is whether the present complaint is maintainable or not in view of the fact that the criminal case no. 1019/08 is pending in the criminal court as this objection has been taken by the opposite parties in their written statement.
5. It may be stated here that the above question has been answered by the Hon'ble National Commission in the case of Punjab National Bank, Bombay Vs. K.B.Shetty reported in CPJ 1991 Vol. II 639 where the Hon'ble National Commission has held that the Consumer Forum had jurisdiction, even if a criminal case is pending before the 12 criminal court as reliefs sought are different in nature and the relief which could be granted by the Consumer Forum under C.P.Act,1986 could not be granted by the magistrate.
6. Similar view was taken by the Hon'ble National Commission in another case of Powerware India Pvt. Ltd. Vs. Economic Transport Organisation ( ( 2006 ) Vol II CPJ 269 NCDRC ) where the Hon'ble National Commission has held that nature of two proceedings being different, the pendency of criminal case would not come in the way of Consumer Forum in granting the relief to the complainant.
7. It may further be stated here that the law laid down by the Hon'ble National Commission in the case of Punjab National Bank (supra ) also deals where the negligence of the bank was alleged in respect of maintaining the locker and the same question is also involved in the present case . Thus, this Commission is of the view that when it has been held repeatedly by the Apex Consumer Court that pendency of the criminal case will not be a ground to refuse the claim of the complainants and therefore, the present complaint is found maintainable.
8. Further we are also in agreement with the law laid down by the Jharkhand State Commission in the case of R.K.Agarwal Vs. Manager, United Commercial Bank reported in II ( 2003 ) CPJ 497 where it was held that pendency of criminal case is no ground to refuse rightful claim of consumer.
139. For the reasons stated above, this Commission is of the view that the present complaint is maintainable and preliminary objection raised by the opposite parties aboutthe maintainability of the complaint on ground of pendency of criminal case before Judicial Magistrate no.3, Jaipur city stands rejected and thus, issue no.1 is decided in favour of the complainants and against the opposite parties.
10. The next question is whether in maintaining the lockers in the bank by opposite party no.1, there was deficiency in service on their part or not by not making proper security and arrangements for safeguarding the lockers.
11. It may be stated here that so far as the fact that the theft had taken place in the bank of opposite party no.1 on 24.8.08 is concerned, it is well established and it is also well established that in the theft some lockers were broken and articles kept in the lockers were stolen and further a sum of Rs.7,80,000/- belonging to opposite party no.1 bank were also taken by the culprits from the Tijori of the bank and that was done by the culprits after making forceful entry in the bank in the night of 23/24.8.08 and Tijori as well as the lockers were cut opened after entering into strong room.
12. Taking into consideration the fact that a serious theft had taken place in the opposite party no.1 bank in which the culprits had cut opened some lockers and also stolen 14 Rs.7,80,000/-
from the Tijori of the bank clearly reflects that it was done because of lack of proper arrangements of safety made by the opposite party no.1.
13. When a depositor or customer wants to have dealing with a bank, as regards his money deposits or the locker system, he places immense faith in the bank. In fact it is the good faith which a customer expresses toward his bank which is the guiding factor for his dealings with a bank.
14. This faith is a predominant factor in such transaction. If on account of such incidents ( the negligent loss of precious ornaments due to break open of locker ) the very faith of the customer is shaken, the foundation of the banking system is likely to be affected. If the banking system has to promote the faith of the customers, it can be maintained by the efficient and effective service by banks.
15. It may be stated here that since in this case the fact that the burglary had taken place in the night of 23/24.8.08 in the bank of opposite party no.1 and lockers were broken and articles kept in the lockers were stolen and further a sum of Rs. 7,80,000/- from the Tijori of the bank were taken away by the culprits and thus, that could have been taken place because of the fact that there was lack of proper security arrangements made by the opposite party no.1 bank.
16. Therefore, this Commission comes to the conclusion that the opposite party no.1 bank was negligent, in-ensuring 15 the security of the locker as a result of which burglary had taken place in the night of 23/24.8.08 and thus deficiency in service on the part of the opposite parties bank is established and proved by the complainants.
17. For the reasons stated above, it is held that when the incident of theft had taken place in the bank of opposite party no.1, there was lack of proper security arrangements done by opposite party no.1 bank and thus the case of deficiency in service on the part of opposite parties is well established and this issue is decided accordingly.
Due to that theft which had taken place in the night of 23/24.8.08, what loss had occurred to the complainants
18. In this case it is an admitted case that after incident of theft the complainants had given a list of articles kept by them in the locker no. 120 to the police as well as to opposite party no.1 bank and the same items were got recovered by the police during investigation from one of the accused and thereafter they were seized by the police through seizure memo dated 10.9.08 and thus the complainants had proved the fact that the articles mentioned in the list at page 21 of the complaint which were kept by them in the locker no. 120 which were 19 in numbers were stolen away by the culprits and they are still lying in the custody of the criminal court.
Note- The list given by the complainants to the police for those articles which were stolen away from the locker on 16 24.8.08 and the same is mentioned at page 21 & 22 of the complaint and a bare perusal of that list shows that the gold jewellery of all types were stolen.
19. The next question is whether the complainants are entitled to full value of the ornaments which were stolen from the locker of the complainants though these articles are still lying in the custody of the criminal court.
20. It may be stated here that as a general rule value of the jewellery kept in the locker can satisfactorily be determined only in civil court after adducing elaborate evidence of both sides but in this case since all the articles stolen from the locker had been recovered by the police during investigtion, therefore, the question of assessing the value of the articles does not arise but the question is whether the complainants can claim full amount of the value of the articles recovered by the police or not where the recovered articles are lying in the custody of the Judicial Magistrate No.3, Jaipur city.
21. In our considered opinion, since the articles recovered by the police are still lying in the custody of criminal court, therefore, the complainants cannot demand the value of those articles from this Commission and the complainants are free to take them in accordance with law from the criminal court either on Supurdnama or otherwise before trial or after the conclusion of the full trial of the criminal case .
1722. It may further be stated here that since the original articles are still lying in the criminal court, the complainants cannot ask this Commission to give the value of those articles which were stolen away from the locker because of the simple reason that the original articles are still lying in the custody of the criminal court and thus the prayer of the complainants that the value in rupees of stolen articles be ordered to be paid to the complainants from opposite parties no. 1 & 2 stands rejected and this point is decided accordingly. However, the complainants are entitled for the following reliefs from this Commission-
Depreciation value in respect of stolen articles
23. In this case there is no dispute on the point that the articles kept in the locker were stolen away on 24.8.08 and thereafter the same items were got recovered by the police during investigation from one of the accused and thereafter they were seized by the police through seizure memo dated 10.9.08 and they are still lying in the criminal court and thus it could not be denied that when the articles ( gold ornaments ) were stolen away by the culprits and when they were recovered by the police during investigation, they could not be said to have been found in the same position which were kept by the complainants in the locker and some damage could have been done to the ornaments in the manner that some naginas have come out from the ornaments because of the simple reason that the ornaments would have been handled by the culprits roughly while making the burglary in the bank.
1824. Further the present case is not a case where the locker was not properly locked but the burglary had taken place as a result of which burglars had taken the ornaments kept in the locker of the complainants and the possibility that the ornaments would have been damaged to some extent could not be ruled out as the burglars had taken away the ornaments from the locker and thereafter they would have put in the bag and after some days the police had recovered them and in allprocess just mentioned above there is a possibility that some sort of damage to the ornaments would have taken place as in all the stages ornaments would have been dealt by the culprits roughly.
25. For the reasons, this Commission is of the view that the complainants are entitled for some sort of compensation for depreciation value of the stolen ornaments.
26. Taking into consideration, the value of the ornaments that had been assessed by the complainants near about Rs. 18 lacs, if a sum of Rs. 2 lacs are awarded to the complainants from opposite parties no. 1 & 2 as compensation for depreciation value of the ornaments, that would meet the ends of justice.
Compensation to the complainants for deficiency in service rendered by the opposite parties as a result of which the ornaments were stolen away from the locker of the opposite party no.1 bank belonging to the complainants 19
27. It may be stated here that since in deciding the issue of deficiency in service , it has been held that opposite parties were found guilty of not maintaining the lockers properly and since there was deficiency in service on their parts and since the relationship between the bank and the complainants is not of a landlord and tenant and since the complainants had in fact hired the services of opposite party no.1 bank for consideration for keeping their articles and ornaments safe in the locker in safe deposit valt and since the safe deposit valt was in the custody of opposite party no.1 bank and since that locker was found broken away by the culprits and ornaments were stolen from that locker, therefore, the opposite parties no. 1 & 2 are guilty of committing deficiency in service on their parts and for that the complainants are entitled for some sort of compensation from opposite parties and if a sum of Rs. 2 lacs are awarded as compensation that would meet the ends of justice.
Compensation for mental agony as well as deprievation of the use of ornaments by the complainants
28. It may be stated here that in civil law compensation are awarded for pecuniary loss suffered or for non-pecuniary loss suffered and so far as the pecuniary loss in the present case is concerned, as stated above since the ornaments of the complainants were stolen away from the locker of opposite party no.1 and are still lying in the custody of criminal court, therefore, the complainants could get the same from the 20 criminal court but for non-pecuniary loss which includes pain, suffering loss of amenities and enjoyment of life is concerned, it may be stated here that since in this case if a locker consisting of many valuable articles is being broken and ornaments are missing, that would certainly cause pain to whom the locker belongs and that would certainly cause mental, physical shock and pain to the complainants and it would further cause inconvenience, hardship, discomfort and mental stress in life and for that also some sort of compensation should be awarded to the complainants .
29. On point of deprivation of the use of ornaments by the complainants, it may be stated here that in this case theft had taken place on 24.8.08 and original ornaments are lying in the custody of the criminal court and because of that the complainants are not in a position to use the ornaments and since 24.8.08 the date of theft and upto today the complainants had been deprieved of the use of ornaments, therefore, in our considered opinion, if a sum of Rs. 1 lac as compensation for mental agony to the complainants as well as deprivation of the use of the ornaments by the complainants are awarded to the complainants, that would meet the ends of justice .
30. Thus, in all the complainants are entitled to get from opposite parties a sum of Rs. 2 lacs as mentioned in para 26 of the order and Rs. 2 lacs as mentioned in para 27 of the order and Rs. 1 lac as mentioned in para 29 of the order .
2131. For the reasons stated above, the complaint filed by the complainant is partly allowed in the manner that the opposite parties no. 1 & 2 are directed to pay within three months from today to the complainants in all a sum of Rs. 5 lacs ( Rs. Five Lacs only ) alongwith interest @ 9% p.a. from the date of filing of the complaint i.e. 23.7.09 till the payment is made . The opposite parties are further directed to pay to the complainant a sum of Rs. 20,000/- ( Rs. twenty thousand only ) as amount of cost of litigation . If the above amount of cost i.e. Rs. 20,000/- is not paid within three months the complainants would be entitled to get interest at the rate of 9% on the above amount from today. It may further be stated here that liberty is given to the complainants to get their articles from the criminal court as and when they feel and as per procedure established by law.
(S.K.Pareek) (Vimla Sethia) (Justice Sunil Kumar Garg) Member Member President N.M.