National Consumer Disputes Redressal
Goa Urban Cooperative Bank Ltd. And Anr. vs Franklin Noronha And Anr. on 21 February, 2008
Equivalent citations: 3(2008)CPJ12(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This appeal is directed against the order passed by the State Consumer Disputes Redressal Commission, Goa.
This appeal had a slightly curious history. The State Commission declined to adjudicate the complaint filed on the ground that a civil suit was pending in the Civil Court almost for identical reasons between the same parties.
However, the State Commission gave liberty to the complainant to approach the State Commission provided no civil suit was pending in any Civil Court. An application dated 5.4.1993 had been moved for withdrawal of the civil suit pending before the Civil Judge at Quepem. That application was allowed on 15.9.1993 and the civil suit stood dismissed as withdrawn. Thereafter, on 18.10.1993, an application was moved before the State Commission, Panaji, Goa for revival of the complaint to proceed further with the complaint No. 20/92 on the ground that Special. Civil Suit No. 50/92 filed for recovery of the ornaments or its value, had been withdrawn and order was passed on 15.9.1993. The State Commission vide order Ex. "J.", allowed that application and directed the parties to file their affidavits, documents and listed the matter on 24.81994.
2. The present appellants filed version petition, against the above said order before this Commission. This Commission in the said revision petition passed the following order:
This is a case where the State Commission has purported to reconsider a case which had been disposed of by it by a final order dated 6.4.1993 which is at pages 61 to 64 of the paper book. The ground stated by the State Commission for resorting to this strange procedure is that the State Commission had not disposed of the proceedings finally as per its earlier order. We are unable to agree with the said stand taken by the State Commission because on going through the order of the State Commission dated 6.4.1993 it is seen to be one final disposing of the proceedings in that particular case. It was not open to the State Commission subsequently re-open the whole matter at the instance of one of the parties to the case and that is unfortunately what has been done by the State Commission by its order now impugned. The order sought to be revised is wholly illegal and without jurisdiction and we have no hesitation to set it aside and allow this revision petition. In case the petitioner is entitled in law to reagitate the matter before any forum on which question we express no opinion whatever, the Order passed in this revision petition will not operate to his prejudice in relation to the said matter.
3. A fresh complaint was filed before the State Commission after passing of the aforesaid order by the National Commission and the State Commission on 8.4.1999, allowed the complaint directing the opposite parties/appellants to deposit a sum of Rs. 2,50,000 before the State Commission and in case the amount was not deposited within one month, it would carry interest @ 18% from 15.4.1999 till the date of payment. The amount deposited was to be withdrawn jointly by the complainant and his mother.
4. Feeling aggrieved by the said order, the appellant/opposite party have filed the present appeal.
5. The case of the complainant/respondent was that his mother was working in Gulf since the year 1973 and her mother had gold ornaments. She opened a safe deposit locker with the opposite party No. 1 to be jointly operated by the complainant and opposite party No. 3. Smt. Carmelin Noronha, and she put all her gold ornaments in the locker of the total value of Rs. 2,50,000. At that point of time, the complainant was minor. In or about November, 1990, the relationship with his sister became strained due to domestic differences. During November 1990, mother of the complainant went to the Bank with the key of the locker and requested for seeking permission of the Branch Manager for opening the locker. But her request was turned down on the ground that the opposite party No. 3 namely, the complainant and Carmelin Noronha should accompany her, as the locker was in her name. On that occasion the complainant's mother specifically warned the opposite party No. 1 that her relationship with opposite party No. 3 was strained and that Smt. Carmelin Nornha should not be permitted to open the same in the absence of the complainant.
6. By March, 1991, the complainant became major. In March, 1991, the opposite party No. 1 in collusion with opposite party No. 3 permitted the breaking open of the locker and removal of the gold ornaments by opposite party No. 3, Smt. Carmelin Nornha. Neither any inventory of the articles was got prepared, nor any Panchanama was prepared nor the complainant was informed, nor consulted. The complainant was also not called to attend the Bank when the locker was broken open.
7. The complaint was resisted by the Branch Manager as well as the Secretary, the Goa Urban Cooperative Bank Ltd., inter alia on the ground that at the time of withdrawal of the suit, the complainant was not given liberty to file fresh suit and, therefore, the present complaint was liable to be rejected, Further, in view of disposal of complaint No. 20/92, the complaint was not maintainable. It was also pleaded that at the time of opening of the locker, it was not disclosed that the complainant was a minor and locker No. 33 was jointly allotted to the complainant/opposite party No. 3 and it was also mentioned that the locker was to be operated jointly.
8. On 28.1.1991, the opposite party No. 3 wrote a letter to the Bank stating that the key of the locker had been lost on the previous day and by another letter dated 12th February, 1991, she stated that she expressed urgent need of the gold ornaments deposited in the locker and that the locker be broken at her cost and risk. Accordingly, the locker was broken open in front of opposite party No. 3 and she took all the ornaments deposited therein. If the Branch Manager had accorded permission to break open the locker on the request made by the opposite party No. 3, the Bank was not liable as it was the personal decision of the Branch Manager in his personal capacity. The complainant was not a consumer for in absence of relationship between complainant and the Bank was not that of the Bank and customer.
9. An application for exclusion of time had also filed under Section 14 of the Limitation Act, which was also opposed by the opposite parties. There was no dispute that the locker in question was hired in presence of the mother of the complainant and was jointly operated by the complainant and the opposite party No. 3, Smt. Carmelin Nornha. If we go by the averments made in the complaint itself on 12.2.1991, the complainant was minor. He became major by March 1991. The locker was broken open and at that time neither the complainant nor his mother was present nor they have been informed about the request of Smt. Carmelin Nornha.
10. The State Commission after noting the history took the view that all the provisions of Code of Civil Procedure were not made applicable under Consumer Protection Act And the Commission could not import the provisions of Order 2 Rule 2, CPC or Order 22 CPC. It was further observed that the Consumer Protection Act had been passed for protecting consumers and if two interpretations were possible, the one, which was beneficial to the consumer, must be adopted. Therefore, the disposal of the above civil suit would not be a bar for instituting the fresh complaint.
11. As regards the plea that at the time of contract between the parties for hiring of the locker, the complainant was minor and as such, the contract was void, the State Commission has observed that this hiring of the locker and joint operation was for the benefit of the minor son, therefore, there would not be any provision of law disentitling the minor of such a benefit and rejected the pleas taken by the present appellant.
12. We have heard the learned Counsel for the parties and have gone through the record.
13. Despite the fact that the notice was sent to the respondent No. 2 namely, Smt. Carmelin Nornha, she had not turned up nor it appears that she contested the matter before the State Commission. In absence of any opposition, adverse inference is required to be drawn against Smt. Carmelin Nornha.
14. In view of pleadings, contentions raised and submissions made several points arise for our consideration. We shall deal with each and every point, separately.
15. The first point, which requires our consideration, is whether the complainant could re-agitate the matter after decision of the revision petition by this Commission in the aforesaid circumstances. It may be mentioned that when the matter was decided by the State Commission saying that so long the matter is pending by the Civil Court, the complaint could not be entertained, it was not a final order on merits. An application was moved a day before the said order was passed for withdrawal of the civil suit and the civil suit was also allowed to be withdrawan. But no specific permission was granted to file fresh suit or complaint on the same causes of action. This was again not a final order on merits. It is undisputed that on the application moved by the complainant, the State Commission had revived the matter by their own order. In absence of powers to review its own order, this order of the State Commission could not be sustained and the order was set aside. While setting aside the said order this Commission in relation to the said matter also observed that "in case the petitioner is entitled in law to re-agitate the matter before any forum on which question we express no opinion whatever, the Order passed in this revision petition will not operate to his prejudice in relation to the said matter." Since the matter was not finally decided on merits, the above said order passed by this Commission earlier would neither operate to the prejudice of the complainant, nor he was debarred from reagitating the matter, "in case the appellant is entitled in law to re-agitate the matter." It is required to be seen whether he could re-agitate in law. It is evident that fresh complaint would not be hit by res judicata in view of specific observation. It may be added that provisions of Order 2 Rule 2, CPC, are not applicable to the proceedings before the Consumer For a for these provisions had not been extended under Sub-sections (4), (5), (6) and (7) of Section 13 of the Consumer Protection Act. Any other interpretation would not only defeat cause of substantial justice, but also the purpose of granting permission to re-agitate the matter and saying that order in revision would not operate to his prejudice to the said matter. In so far as question of lapse of time and limitation under Section 24A is concerned, the complainant was agitating the matter in right earnest and just made an attempt to safeguard interest by filing a civil suit and by withdrawing the civil suit in view of the orders of the State Commission. As such, in so far as exclusion of time spent in earlier proceedings is concerned, we feel that the observations made by the Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute , would justify exclusion of the time spent earlier. In view of this we, feel that the view taken by the State Commission was absolutely justified and the complaint can be maintained in absence of any other legal hurdle in dispensing substantial justice.
16. The next point urged is that undisputedly the complainant was a minor on the date of hiring the locker, for he attained majority in March, 1991. Though, it is true that the locker was opened in the year December, 1977 and it was only complainant's sister, Mrs. Carmelin Nornha who had virtually operated the locker and signed the concerned register, the circumstances also definitely indicate that the locker was opened for the benefit of the complainant. Supposing for the sake of argument that the complainant was a minor on the date of entering into an agreement for operating the locker, the agreement was for the benefit of the minor at least. Mrs. Carmelin Nornha also knew this fact when she hired the locker along with the complainant. Had the Branch Manager been slightly vigilant at the time the locker was hired he would have also noticed this fact. Since the sister did not claim the ornaments before the State Commission or this Commission, the sister of the complainant would have entered into the said locker hiring agreement for the benefit of the complainant. Thus, the circumstances would indicate that she was just acting as a guardian of the complainant at the time of entering of the agreement. The contract could not be avoided on specious plea that for the complainant could not contract due to minority. Consequently, we feel that since the locker was opened for the benefit of the minor complainant, he would be beneficiary of the contract at least. It was not a contract, which was entered into by a minor alone where it could be said that in terms of Section 2 of the Contract Act, there was neither any proposal nor acceptance thereof, and as such, no agreement. The fact that complainant was a minor on that date there was a proposal of his sister to hire a locker jointly along with the complainant for the benefit of the complainant. As such, the Bank can't avoid such a contract after the complainant had attained majority on the specious plea that he was minor on the date of agreement of hiring locker.
For the aforesaid reasons, we do not see any force in these technical pleas.
According to the complainant, in the year 1977, the complainant and his sister were living with Marianinha Noronha and she hired a safe Bank locker jointly in the name of the complainant and respondent Mrs. Carmelin Nornha. There is undisputed evidence of Smt. Marianinha Noronha that in the locker, following gold items were put:
1. 4 Bangles (Patlio type)
2. 2 Bangles (big size)
3. 1 Bangle (Broad one)
4. 1 bracelete (of quarter)
5. 2 ear rings (with quarter)
6. 1 ring with quarter
7. 1 Necklace (with name Joanaita Noronha)
8. 1 Necklace (with thick cross)
9. 2 Bangles
10. 1 hair pin
11. 1 Bracelet/Sari Pin
17. In absence of any affidavit from the side of Mrs. Carmelin Nornha, it is to be held that these gold ornaments worth Rs. 2,50,000 belonged to mother of the complainant. But since son, the complainant was a party to the hiring of the locker, he filed complaint and the complaint had been allowed in favour of the complainant as well as the complainant's mother jointly.
18. In view of the undisputed fact, there could not be any dispute about the fact that the bank locker was operated upon twice by Mrs. Carmelin Noronha on 22.12.1981 and 27.9.1989.
19. As regards the point whether mother of the complainant had informed the Branch Manager that differences had cropped up with her daughter and as such, the locker should not be allowed to be opened by her alone and the Branch Manager should not have allowed the locker to be broken open, there is overwhelming evidence in the shape of affidavits of several persons other than the mother of he complainant and of Franklin Noronha.
20. It was stated that Smt. Marianinha Noronha, mother of the complainant had complained regarding her strained relationship with Mrs. Carmelina Noronha and had warned the Bank Manager not to allow the said Carmelina Noronha to interfere with the said locker anymore and also requested the Bank Manager to allow herself to open the locker as her son Franklin had given the keys to her, which she had shown to the said Bank Manager, but the Bank Manager refused to allow her to open the locker without her son's presence.
21. The complainant and his mother stand corroborated by affidavits of Smt. Dumiana Rodrigues; Smt. Franskina A. Fernandes, Shri Santano Fernandes, Shri Antonio H. Fernandes in all respects. It has also been established by the complainant that gold ornaments belonged to mother of the complainant and not to Smt. Carmelina Noronha. Consequently, she just entered into the contract of hiring locker for the benefit of the complainant and his mother.
22. There is also no dispute about the fact that the Smt. Carmelin Nornha had given the undertaking to indemnify the Bank while she was allowed to open the above locker. In the light of information given and request of complainant's mother not to allow any person on her behalf to open the locker and take the ornaments as well as in terms of letter dated 28.1.1991, written by Smt. Carmelina Noronha, alleging loss of key, the Branch Manager of Bank at least should have taken proper care not to allow Smt. Carmelina Noronha to remove the gold ornaments by getting the locker broken opened. To that extent, the Bank Manager was deficient in rendering service in not taking necessary precaution like a prudent person by informing the complainant. Since, the Bank acted through Manager and the Bank had placed the Manager in such a position, the Bank is also vicariously responsible for rendering deficiency in service.
23. In the aforesaid circumstances, we feel that the Branch Manager of Curchorem Goa Urban Cooperative Bank Ltd. (Branch) as well as The Goa Urban Co-operative Bank Ltd., Goa both are jointly and severally liable along with Smt. Carmelin Noronha, Goa (who had given undertaking to indemnify the Bank from any loss m respect of Locker No. 33 dated 22.1.1991) to pay a sum of Rs. 2,50,000, as has been ordered by the State Commission to the complainant for his own benefit an d for the benefit of his mother.
24. Learned Counsel for the complainant has also pleaded that interest @ 18% as awarded by the State Commission is on a high side, for there was dispute between the complainant and his mother on one side and his sister oil the other side. This, plea though appears to be plausible, but cannot be accepted in peculiar circumstances of the case, in the light of the facts; (i) that interest had not been awarded from the date of cause of action when the locker was broken open in February, 1991 but from 15.4.1999; and (ii) that the prices of. gold have gone up now over Rs. 10,000 per ten gram. In these circumstances, we do not feel it appropriate to reduce the interest from 18% p.a.
25. For the aforesaid reasons, the appeal stands disposed of in above terms. Parties shall bear their own costs.