National Consumer Disputes Redressal
Rishab Kumar Sogani vs State Bank Of India on 1 November, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1668 OF 2018 (Against the Order dated 01/03/2018 in Appeal No. 43/2018 of the State Commission Delhi) 1. RISHAB KUMAR SOGANI 18, RAJENDRA PARK, PUSA ROAD, NEW DELHI-110060 ...........Petitioner(s) Versus 1. STATE BANK OF INDIA BRANCH CHANDNI CHOWK, INFRONT OF GAURI SHANKAR MANDIR NEW DELHI-110006 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Ms. M. Malika Chaudhuri, Advocate as Amicus Curie For the Respondent : Mr. Rajiv Kumar Thakur, Advocate Dated : 01 Nov 2019 ORDER Per Mrs. M. Shreesha, Member Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 01.03.2008, passed by the Delhi State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 43 of 2018 preferred by the Complainant. By the impugned order, the State Commission has dismissed the Appeal and confirmed the order of the District Consumer Disputes Redressal Forum, North (in short "the District Forum") .
2. The facts in brief are that the Complainant, an account holder of the savings bank account of Chandni Chowk branch of State Bank of India (hereinafter referred to as "the Bank") visited the Bank on 28.03.2016 to deposit an amount of ₹76,000/- and was standing in the queue for that purpose, when some miscreants snatched the amount and ran away. It is averred that when the Complainant's turn had come to deposit the amount, he placed his hand in the pocket to remove the 76 currency notes of ₹1,000/- each but the man standing behind him had already taken out the notes which were wrapped in a small white cloth and kept in the Complainant's pocket. It is averred that the incident had taken place at noon time and an FIR was registered on 28.04.2016 under Section 379/341 of IPC at Police Station Kotwali, North District Delhi. It is stated that the Complainant had taken the relevant picture from the CCTV camera in his pen drive. Despite, writing several letters to the DCP, Crime Branch North and South and also to the Assistant Commissioner of Police and Joint Commissioner of Police and subsequent letter written to the Police on 18.06.2016, 23.06.2016, 24.06.2016, 25.06.2016, 28.06.2016 and 29.06.2016, the picture of the accused person were given to all the Police Stations, but neither were the culprits caught nor was the money traced. Hence the Complainant approached the District Forum stating that since the money was lost in the Banks premises, the Bank should be held liable for not providing proper security inside the Bank.
3. The District Forum observed that the incident occurred outside the premises of the Bank and that when any Criminal Act is alleged, the Consumer Fora does not have jurisdiction, and dismissed the Complaint.
4. On an Appeal preferred by the Complainant, the State Commission has concurred with the finding of the District Forum relying on the judgement of this Commission in R.K. Gupta (Dr.) Vs. V.K. Gupta (Dr.) and Anr., IV (2011) CPJ 371 (NC), and in Bright Transport Co. Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC) , wherein this Commission has held that when Complaint raises complicated question of fact and law, which can only be answered by regular Civil Court, the Complaints may be relegated to the Civil Court.
5. Ms. Malika Chaudhuri, Advocate who was present in the Commission on 05.09.2018 in connection with some other case was appointed as amicus curie to assist us.
6. Learned amicus curie submitted that the District Forum and the State Commission have erred in coming to a conclusion that the amount was lost when the Complainant was standing in the queue outside the Bank. In fact the Complainant had lost the amount within the premises of the Bank and the CCTV coverage, which the Complainant had taken a photograph of, shows the man stealing the amount. She submitted that there is material irregularities in both the orders of the fora below as there was an assumption that the theft had taken place outside the Bank.
7. Learned Counsel appearing for the Bank vehemently contended that the Complainant had a Current Account; that the FIR was lodged one month after the incident; that the Bank cannot provide security to all its customers; that no letter was written to the Bank by the Complainant and that the Police till date could not trace the culprits and that there is no deficiency of service on behalf of the Bank.
8. It is an undisputed fact that the Complainant had lost an amount of ₹76,000/-, which was also admittedly evidenced in the CCTV footage and in the FIR lodged at North Kotwali, Police Station.
9. At the outset, we first address ourselves to the issue whether both the fora below were right in relegating the matter to a Civil Court. The Hon'ble Supreme Court in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (2002) 6 SCC 635, wherein the Hon'ble Apex Court inter-alia observed as under:-
"Further, under the Act the National Commission is required to be headed by a retired Judge of this Court and the State Commission is required to be headed by a retired High Court Judge. They are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumers should be directed to approach the Civil Court.
It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
(Emphasis supplied)
10. This principle squarely applies to the facts of this case and we are of the view that this matter does not involve any complicated questions of fact or law and hence can be decided by a Consumer Fora. Secondly both the fora below have observed that criminal proceedings and Consumer Complaints cannot go hand in hand. The point that falls for consideration here is not whether the accused is criminally liable and whether Consumer Fora should interfere in the criminal proceedings. The issue is whether the Complainant is entitled to any compensation for the amount that he had lost within the premises of the Bank. In such circumstances we are of the considered view that a Consumer Complaint can be filed during the pendency of the Criminal case as the prayer in the Consumer Complaint is for payment of compensation only and the criminal proceeding is for a direction of divergent steps against the accused.
11. To reiterate, we are of the considered view that both the fora below have erred in holding that the matter involves a complicated question of fact and law and also that the theft had taken place outside the Bank. As the amount involved is small and the incident took place almost 3 ½ years ago, we did not find it a fit case to remand the matter.
12. The only point which falls for consideration is whether the Bank is liable for any theft that had taken place within its premises.
13. It is pertinent to under stand the relevance of the definition of 'Negligence in Banking Business'. Negligence according to Black's Law Dictionary and as defined in Donoghue V. Stevenson (1932) AC 562 at 581 defines negligence as "the omissions to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do .... Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances."
14. Before the liability to pay damages for the tort of negligence can be established, three things have to be seen:
That the bank owes its customers a 'duty of care'.
whether the bank had breached the 'duty of care'.
whether the breach of the 'duty of care' was the cause of the injuryin the proper sense of the term.
15. In the tort of negligence, a duty of care has its origin in the concept of foreseeability. Bank owes a duty of care to its customers who come into contact with it for banking business. This duty of care involves provision of logistic and proper security to avoid putting the persons who come into the Bank in the way of any harm, injury or damage. The contention of the learned Counsel for the Bank that the Bank is not duty bound to provide security to its customers, 'cannot be accepted in its totality'. This Commission in Col D.S. Sachar (Retd.) Vs. Punjab and Sind Bank, 2005 CTJ 990 (CP) (NCDRC), has laid down that 'ensuring safety of the money to be deposited and/ or withdrawn inside the bank premises is part of the service that it renders to its customers.' This principle has not been challenged by the Bank in the aforenoted case and has since attained finality.
16. The averments in the Complaint, the contents of the FIR lodged and the CCTV footage evidenced that the theft had taken place 'within the premises of the Bank'. We are of the considered view that the 'duty of care' extended by the Bank to its customers includes monitoring/ surveillance of the CCTV coverage to prevent any such adverse incident, ensuring safety of the money deposited and or withdrawn inside the Bank premises, is impliedly the part of service, which it render to its customers.
17. For all the aforenoted reasons, we are of the considered view that the Bank has committed a breach in its duty of care in ensuring the safety of the money taken by the Complainant, who has lost it within the Bank premises and therefore we hold that any security lapse within the Bank premises amounts to definition of service. Hence, this Revision Petition is allowed and the Bank is directed to pay a compensation of ₹50,000/- to the Complainant together with costs of ₹10,000/- within a period of four weeks from the date of receipt of a copy of this order. If the Insurance Policy taken by the Bank indemnifying the such loss or claims made, the Bank may recover the same from the Insurance Company.
18. We appreciate the assistance given by the learned amicus curie for which she is entitled to an amount of ₹25,000/-, from the Legal Aid Account, if not already paid.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER