National Consumer Disputes Redressal
Allahabad Bank vs Shiv Swarup Shrivastav on 2 January, 2007
Equivalent citations: I(2007)CPJ221(NC), AIR 2007 (NOC) 1262 (NCC) = 2007 (2) ALJ 451, 2007 (2) ALJ 451
ORDER
K.S. Gupta, J. (Presiding Member)
1. This revision is directed against the order dated 7.7.2004 of State Consumer Dispute Redressal Commission, Uttar Pradesh, Lucknow dismissing appeal against the order dated 2.2.1998 of a District Forum whereby petitioner/opposite party bank was directed to pay Rs. 35,000 along with interest on fixed deposit rate, to the respondent/complainant.
2. Respondent alleged that he had invested in fixed deposit an amount of Rs. 35,000 for a period of one year on 11.11.1992 with the petitioner bank and after maturity period the petitioner had declined to pay the maturity amount. Prayer was, therefore, made in the complaint for refund of the said amount along with interest by the Bank. Petitioner filed reply on the affidavit of Satish Chand Tiwari, Manager, Unnao Branch of the bank. It was alleged that respondent was having a Saving Bank Account No. 825 with the bank. Amounts of Rs. 20,000 on 16.5.1991 and Rs. 10,000 on 10.2.92 were not deposit in that account. Entries made in the pass-book and ledger book in regard to deposit of these two amounts are fabricated. As on 11.11.1992 an amount of Rs. 35,614.10 was lying in credit in the said account including the said amounts and FDR of Rs. 35,000 was issue after transferring money from the saving bank account. Though, it was admitted that Ram Gopal Shrivastava was working as a clerk in Unnao branch but it was stated that he was not authorised to receive or deposit money in cash and the respondent in collusion with Ram Gopal Shrivastava got the entries of deposits of Rs. 20,000 and Rs. 10,000 made in the pass book and ledger book and issued FDR of Rs. 35,000. It was also stated that a criminal case was registered by CBI and on charge-sheet being filed the said employee had been found guilty and sentenced to undergo imprisonment. Respondent despite demand did not show the receipts regarding deposit of said two amounts. Liability to pay the amount claimed was emphatically denied.
3. Along with list of document dated 30.11.2004/6.12.2004 the petitioner has filed the copies of charge-sheet and also judgment in case No. 4609/94-CBI v. Ram Gopal Shrivastava, decided by the Special Judicial Magistrate, CBI, Lucknow on 12.7.1995.
4. Submission advanced by Mr. C. Mukund for petitioner bank was that the amounts of Rs. 20,000 on 16.5.1991 and Rs. 10,000 on 10.2.1992 were not deposited with the bank and FDR of Rs. 35,000 which was issued after transfer of money from SB Account No. 825, was without consideration and the entries of the said two amounts made in the pass-book and ledger book were fictitious. According to the learned Counsel the bank cannot be held responsible for the fraud committed by Ram Gopal Shrivastava and made to pay the awarded amount. Reliance was placed on the decision in State Bank of India (Successor to the Imperial Bank of India) v. Smt. Shyama Devi . Issue of vicarious liability of an employer for the loss caused to a customer through the misdemeanour or negligence of an employee was under consideration in this decision. Dealing with that issue it was held in paras 22, 23, 24, 25, and 26 reproduced below of the judgment at pages 1267-1268 of the report:
22. The first of these principles is that the employer is not liable for the act of the servant if the cause of the loss or damages arose without his actual fault or privity and without the fault or neglect of his agents or servants in the course of their employment. This principle has been illustrated by the decision of the House of Lords in Leesh River Tea Co. Ltd. v. British India Steam Navigation Co. Ltd. (1966) 3 All ER/593. The facts of that case were that during her voyage a ship called at an intermediate port to discharge part of her original cargo and load some fresh cargo. The ship owners engaged a Stevedore company to discharge and load. A servant of the Stevedore company stole a brass plate, which was a cover that could be removed to give access to a storm valve. Its removal rendered the ship unseaworthy as sea water could enter when the ship rolled. The resulting hole in the ship was concealed by part of the fresh cargo loaded. On her voyage after leaving the port of the ship encountered heavy weather. Water entered through the hole and damaged part of the original cargo. In an action for damages by the owners of the damaged cargo, the ship owners contended that they were excepted from liability by Article IV Rule 2(q) of the Hague Rules, because the cause of the damage arose without their actual fault or privity and without the fault or neglect of the agents or servants of the ship-owners.
23. Dealing with this argument Danckwerts, L.J. (at page 597):
It seems to me that the vital point in the case is whether the theft of the brass plate was made by the Stevedore, at Port Sudan, in the course of his employment by the shipowners. He was to be regarded as the agent of the ship-owners for the purpose of unloading and loading cargo. There is no doubt that this gave him the opportunity to effect the theft of the plate, but the Stevedore was concerned with cargo and not with the ship or parts of the ship. When he deliberately stole the plate he was acting in a way which was completely outside the scope of his employment on behalf of the ship-owners. The theft could not have been prevented by any reasonable diligence of the ship-owners through the officers and crew of the ship.
24. Salmon L.J. speaking in a similar strain (at page 599) emphasised that the fact that the thief's employment on-board presented him with the opportunity to steal does not suffice to make the ship-owners liable. The conclusion drawn was-
For an employer to be liable, however, it is not enough that the employment merely afforded the servant or agent an opportunity of committing the crime.
It must be shown that the damaged complaint of was caused by any wrongful act of his servant or agent done within the scope of course of the servant's or agent's employment, even if the wrongful act amounted to a crime. For this proposition, Salmon, L.J. referred to Lloyd v. Grace, Smith & Co. 1912 AC 716.
25. In United Africa Company Ltd. v. Saka Owwoade 1955 AC 130, the Privy Counsel laid down that a Master is liable for his servant's fraud perpetrated in the course of Master's business whether the fraud was for the Master's benefit or not, if it was committed by the servant in the course of his employment. There is no difference in the liability of a Master for wrong whether for fraud or any other wrong committed by a servant in the course of his employment, and it is a question of fact in each case whether it was committed in the course of the employment.
26. In that case, the appellant company, general merchants had expressly committed to servants of the respondent, a transport contractor, at his request, goods for carriage by road, and the servants stole the goods, and the evidence established that that conversion took place in the course of their employment. The respondent was held liable to the appellant for the value of the goods. The rule in Lloyds v. Grace Smith & Co. (ibid) was applied.
5. From aforesaid judgment dated? 12.7.1995, it may be seen that on confessing guilt, Ram Gopal Shrivastava was convicted under Sections 409 and 477A, IPC and sentenced to undergo rigorous imprisonment of seven months under each section and also fined Rs. 1,000 under Section 409, IPC. To be only noted that respondent was not arrayed as a co-accused in the case. In support of the stand that the respondent got the fictitious entries of two amounts of Rs. 20,000 and Rs. 10,000 made in the pass-book and ledger book and issued FDR of Rs. 35,000 in collusion with said Ram Gopal Shrivastava, the bank did not lead any evidence except filing the reply to the complaint. In absence of evidence to that effect and the respondent not being a co-accused in said case 4609/94, the petitioner bank must be held to have failed to prove the said assertion of collusion. It is admitted by the petitioner that Ram Gopal Shrivastava was working as a clerk on 16.5.1991 and 10.2.1992 and the period during which entries were made in the pass-book and ledger book maintained by the Bank. He was also working on the date the FDR of Rs. 35,000 was issued. Receipt of amount of Rs. 30,000 from respondent was admitted by Ram Gopal Shrivastava as may be seen from the judgment dated 12.7.1995. Thus, loss of Rs. 30,000 to the bank was caused by Ram Gopal Shrivastava by misappropriating that amount within the scope or course of his employment. Applying the ratio of Shyama Devi's case which rather supports the respondent the petitioner bank is vicariously liable to pay the amount of the fixed deposit in question together with interest. Orders passed by Fora below do not suffer from any illegality or jurisdictional error warranty interference in revisional jurisdictional under Section 21(b) of C.P. Act.
6. Accordingly, revision petition is dismissed with cost of Rs. 5,000 to the respondent.