State Consumer Disputes Redressal Commission
Swapan Paul vs The Chief Manager, State Bank Of India on 22 September, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/481/2017 ( Date of Filing : 23 Jun 2017 ) 1. Swapan Paul S/o Narayan Paul, Vill. - Rabindra Nagar, P.O. & P.S. - Chakdaha, Dist. - Nadia, Pin - 741 222. ...........Complainant(s) Versus 1. The Chief Manager, State Bank of India Chakdaha Branch, Br. office at Aditya Super Market, Chakdaha Bangaon Road, Chakdaha, Nadia, Pin - 741 222. 2. The Chairman, S.B.I Br. office at State Bank Bhavan, Madam Cama Road, Mumbai - 400 021. 3. The General Manager, S.B.I Local Head office at Samriddhi Bhavan, 1, Strand Road, Kolkata - 700 001. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL KUMAR GHOSH PRESIDING MEMBER HON'BLE MR. SUBHRA SANKAR BHATTA JUDICIAL MEMBER PRESENT: Mr. Ramen Bose, Mr. Debanjan Banerjee, Advocate for the Complainant 1 Ms. Deblina Lahiri., Advocate for the Opp. Party 1 Dated : 22 Sep 2023 Final Order / Judgement MR. SHAYMAL KUMAR GHOSH, PRESIDING MEMBER
The instant consumer case has been filed by the complainant against the OPs/Bank praying for adequate compensation amounting to Rs. 80,000,00/- (Rupees eighty lakh) only alongwith all expenses required for medical treatment of the complainant for the rest life and also for interest cost , etc. To sum up the matter , the complainant is a bonafide consumer of State Bank of India, Chakdah Branch having savings Bank Account bearing No. 31724438736. The OPs / SBI under Article 12 of the Constitution of India is under obligation to provide full security and protection to each customer within the Bank Premises during banking hours within the purview of Section 2(c)(ii) of the Consumer Protection Act, 1986. The fact remains that on 25th June, 2015 the complainant had entered into the bank premises for banking transaction during the banking hours and on a sudden at about 11.00 a.m. to 11.30 a.m. the complainant had got seriously injured by gun firing from the end of security personnel of the said Bank. For the unexpected event , the complainant had succumbed severe physical injury on various parts of the body with significant bone loss on his right heel and also caused mental trauma and break down psychologically. As per Article 12 of the Constitution of India and being a nationalized bank, it is the duty of State Bank of India to provide protection of the life and security of all customers inside the bank premises during the period of banking hours. But the aforesaid concerned bank has failed to provide necessary protection to the complainant. The complainant has made several representation before the concerned bank authorities on 20.07.2015, 27.11.2015, 25.04.2017, 12.06.2017 and many more but no satisfactory reply has been received by the complainant till date. The concerned bank had arranged for some primary treatment to the complainant but such type of meager treatment was not adequate as the complainant has succumbed severe bone loss on the right heel alongwith injuries on the various parts of the body and the complainant was going to the mental trauma. The complainant has become physically and mentally crippled , handicapped and has become incapable of earning his livelihood to bear the burden of this family consisting of his wife, aged and ailing parents and two children. Due to the delayed medical treatment and due to financial inability and hardship of the complainant , the proper treatment has not been made and for this reason the physical condition of the complainant has been deteriorating day by day. At present the complainant is passing his time with medical aid and on clutches. The Doctors of Medical Board has been constituted by Nadia District Hospital, Krishnnagar and the said Medical Board has issued a certificate regarding 40% disability. Regarding medical treatment the complainant has received an estimated cost amounting to Rs. 5,36,000/- from Apollo Hospital. Apart from this regular expenses for ancillary treatment amounting to Rs. 20,000/- per month is also required for his survival. The aforesaid event clearly reflects that there is a clear gross negligence and deficiency in service on the part of the bank concerned and for saving his family he has made several request to the concerned bank to pay adequate compensation but to no effect from the end of the concerned bank. Having no other alternative the complainant has rushed to this Commission for getting proper relief/reliefs as prayed for against the OPs/SBI.
The OP/SBI contested this case by filing written version stating inter alia that the complainant is not a consumer under the Consumer Protection Act. However, the complainant is an account holder and a customer of SBI, Chakdah Branch. It is also submitted that the SBI is a Government owned public sector banking and financial service company and renders service to its millions of satisfied customers with due diligence towards their safety and security in respect of banking business. It is also submitted that the complainant was injured accidentally by way of gunshot or firing in the leg inside the banking Premises when he was carrying out some banking transaction. Accidentally firing has been occurred by the Security Guard posted in the OP No. 1/SBI. Shri Sankar Das, the Security Guard of the concerned bank was in the service of Indian Army and after being discharged from Indian Army, he was further recommended to take the duty in the Bank Premises as a Security Guard and to that effect necessary permission was given by the concerned District Magistrate and accordingly, it can be safely said that the concerned bank have taken utmost care in appointing the Security Guard in the bank. The aforesaid accident/incident does not come within the meaning of deficiency in service or negligence, specifically since the accident occasioned by the Security Guard is particularly distinct from the scope of baking business of the OP/Bank. By filing written version the concerned bank has submitted that upon receipt of the disability certificate the bank would consider a fair compensation package as per Govt. guidelines and to that effect a direction has been given to the complainant to obtain disability certificate at the earliest for taking necessary action at their end which is clearly reflected the letter dated 03.05.2016. Be it mentioned here that regarding the aforesaid accident for medical treatment the concerned OP/Bank has already paid a total sum of Rs. 10,10,633/- to the Apollo Gleneagles Hospital Ltd., Kolkata wherein the complainant was admitted for his treatment three consecutive times. The OP/concerned Bank has submitted that as per disability certificate submitted by the complainant clearly shows that the disability of the complainant is 40% and hence it is not a fact that the complainant has become absolutely crippled and absolutely he becomes incapable of earning his livelihood. The OP/concerned Bank has taken a plea that the complainant has failed to reveal the nature of the service which he was carrying out before the aforesaid injury. He has also failed to submit proper document for remuneration earned by him for rendering such service. The OP/Bank has further taken the plea that the complainant is a victim of an accident and there is no such negligence or deficiency in service on their part. They also agitate further that the claim of Rs. 80,00,000/- is almost baseless, frivolous and illegal demand in respect of monetary compensation and accordingly the OP has prayed for dismissal of the consumer case with cost.
Ld. Advocate appearing for the complainant has argued that the complainant is a bonafide consumer of the State Bank of India, Chakdah Branch having an Savings Bank Account bearing no. 31724438736. As per article 12 of the Constitution of India it is under obligation at the behest of the OP/SBI to provide protection to each and every customer within the Bank Premises during the banking hours. The Ld. Advocate has argued that on 25th June, 2015 the complainant had entered into the bank premises for banking transaction during the banking hours and on a sudden at about 11.00 a.m. to 11.30 a.m. the complainant was seriously injured by gun firing from the end of security personnel of the said Bank. For the unexpected event , the complainant has succumbed severe physical injury on various parts of the body with significant bone loss on his right heel and has also caused mental trauma and break down psychologically. The concerned bank has failed to provide necessary protection to the complainant and to that effect the number of representations have been given to the concerned bank authority but no satisfactory reply has come out. A meager amount for medical treatment has been given by the bank. But no sufficient amount has been given in order to provide full and complete medical treatment in respect of bone loss on the right heel alongwith injuries on the various parts of the body and as such the complainant was going to mental trauma. The Ld. Advocate appearing for the complainant has also argued that due to the accident occurred at the Bank Premises, the complainant has become physically and mentally crippled, handicapped and at present he is not in a position to earn money for carrying out his livelihood. He is the only earning member and his family is consisting of his wife , two children , aged and ailing parents . The Doctors of the Medical Board has been instituted by District Hospital , Nadia and issued a disability certificate referring 40% disability. Thereafter, another disability certificate has been issued by the College of Medicine and JNM Hospital, Kalyani, Nadia which reflects 60% disability and the aforesaid Medical Board has been pleased to hold "foot deformity and difficulty in walking" . There is a clear gross negligence and deficiency in service on the part of the OP/concerned SBI and accordingly the Ld. Advocate appearing for the complainant has prayed for monetary compensation, litigation cost, etc. which are clearly reflected in the prayer portion of the petition of complaint filed by the complainant.
Ld. Advocate appearing for the OP has argued that the complainant is not a consumer under the Consumer Protection Act. However, the complainant is an account holder and a customer of SBI, Chakdah Branch. It is also submitted that the SBI is a Government owned public sector banking and financial service company and renders service to its millions of satisfied customers with due diligence towards their safety and security in respect of banking business. It is also submitted that the complainant was injured accidentally by way of gunshot or firing in the right leg inside the banking Premises when he was carrying out some banking transaction. Accidentally gunshot/ firing has been occurred by the Security Guard posted in the OP No. 1/SBI. Shri Sankar Das, the Security Guard of the concerned bank was in the service of Indian Army and after being discharged from Indian Army, he was further recommended to take the duty at the Bank Premises as a Security Guard and to that effect necessary permission was given by the concerned District Magistrate and accordingly, it can be safely said that the concerned bank have taken utmost care in appointing the Security Guard in the bank. The aforesaid accident/incident does not come within the meaning of deficiency in service or negligence, specifically since the accident occasioned by the Security Guard is particularly distinct from the scope of baking business of the OP/Bank. By filing written version, the concerned bank has submitted that upon receipt of the disability certificate the bank would consider a fair compensation package as per Govt. guidelines and to that effect a direction has been given to the complainant to obtain disability certificate at the earliest for taking necessary action at their end which is clearly reflected in the letter dated 03.05.2016. Be it mentioned here that regarding the aforesaid accident for medical treatment the concerned OP/Bank has already paid a total sum of Rs. 10,10,633/- to the Apollo Gleneagles Hospital Ltd., Kolkata wherein the complainant was admitted for his treatment for three consecutive times. The OP/concerned Bank has submitted that as per disability certificate submitted by the complainant clearly shows that the disability of the complainant is 40% and hence it is not a fact that the complainant has become absolutely crippled and absolutely he becomes incapable of earning his livelihood By means of self employment. The OP/concerned Bank has taken a plea that the complainant has failed to reveal the nature of the service which he was carrying out before the aforesaid injury. He has also failed to submit proper document for remuneration earned by him for rendering such service. The OP/Bank has further taken the plea that the complainant is a victim of an accident and there is no such negligence or deficiency in service on their part. They also agitate further that the claim of Rs. 80,00,000/- is almost baseless, frivolous and illegal demand in respect of monetary compensation and accordingly the OP has prayed for dismissal of the consumer case with exemplary cost.
We have heard the Ld. Advocates appearing for both sides at length and in full.
We have considered the submissions of both sides.
We have meticulously perused the materials available on the record.
It is admitted that Shri Swapan Paul is a bonafide customer having SB Account No. 31724438736 which is clearly revealed from the Bank Pass Book issued by the concerned Bank of Chakdah Branch. The said Bank Pass Book also reveals that the Pass Book has been issued on 27.04.2011 forthe first time.
The letter dated 03.05.2016 clearly reveals that due to accidental gun firing at the Premises of SBI Chakdah Branch, the complainant has succumbed injury at the right leg and to that effect the concerned Bank has advised the complainant to bring his disability certificate upon which the OP/Bank would be able to assess a fair compensation in favour of the complainant.
We have carefully perused the disability certificate issued by Nadia District Hospital, Krishnnagar, Nadia bearing memo no. 47 dated 08.02.2017 wherefrom it appears to us that the aforesaid disability certificate is valid till the lifetime of the complainant and the concerned hospital has taken the opinion that due to bullet injury the foot of the complainant becomes deformity with a 40% disability.
We have carefully perused a letter dated 26.08.2017 issued by the Apollo Hospital Ltd. wherefrom it appears to us that the medical bill amounting to Rs.10,10,633/- has been paid by the concerned Bank towards the medical treatment of the complainant which is clearly admitted by the complainant.
Upon careful perusal of the discharge summary of the complainant, it appears to us that the complainant was admitted in Apollo Gleneagles Hospital, Kolkata on 27.07.2015. After required treatment he was discharged from the said Hospital on 10.10.2015. Upon careful perusal of the final diagnosis , it is very clear to us that the complainant suffered from right heel defect due to gunshot injury .
We have carefully perused another document issued by the Apollo Hospital on 15th March, 2017 towards the estimated cost amounting to Rs. 5,36,000/- for the treatment of the complainant. At the time of final hearing , it is crystal clear to us that the said estimated cost should be borne by the concerned Bank for further medical treatment of the complainant but in vain. No estimated cost amounting to Rs. 5,36,000/- has yet been paid by the concerned Bank for medical treatment of the complainant .
We have carefully perused a certificate issued by Biswas Bag Centre dated 31.03.2015 wherefrom it appears to us that Shri Swapan Paul complainant herein aged about 32 years, has been working in the aforesaid organization since the month of May, 2007 as a manual sewing machine worker and marketing executive. Presently, he is earning a total monthly payment around of Rs. 15,500/- alongwith other payments and Puja Bonus.
We have also carefully perused the another disability certificate being no. 628 dated 05.10.2018 issued by the College of Medicine and JMM Hospital , Kalyani, Nadia wherefrom it appears to us that the complainant viz Shri Swapan Paul is at present permanently disabled at 60% as observed by the aforesaid Medical Board and the complainant has suffered from post operation foot deformity and difficulty in walking. In pursuant to the two disability certificates, mentioned earlier, it appears to us that the condition of the right foot /heel of the complainant has been gradually deteriorating .
Ld counsel appearing for the opposite party/State Bank of India has filed some documents regarding the particulars of security. It is admitted that the security viz Sankar Das has been enrolled in the Indian Army and he has completed the total service of 17(seventeen) years. Thereafter, Shri Sankar Das , retired army personnel, has been appointed for the post of security guard of concerned bank. The fact remains that the victim viz Swapan Paul has been injured by sudden gun shot from the end of concerned security of the aforesaid bank. Now there is question arises regarding tortuous liability as well as vicarious liability. It is to be noted that regarding tort, the redressal can always be claimed under tort through only unliquidated damages ie the compensation amount which has not been determined and is left to the discretion of the Court/Commission only to assess the same depending upon the gravity of the injury of the victim. To constitute a tort commonly known as a branch of civil law, it is essential that the following conditions are to be satisfied:
There must be some act or omission on the part of the opposite party/defendant.
The act or omission should result in legal damage ie injuria ie the violation of the right of the victim.
In pursuant to the aforesaid discussions, it is pertinent to mention here that there was some act or omission on the part of the security guard as the documents, submitted by the opposite party/SBI, clearly reveals that the security guard viz Sankar Das became a person of army on previous occasion so it is undisputed and admitted that the said person has an enough maturity and experienced human being in order to provide proper protection to the customers of the concerned bank. He should be more careful regarding handling his arms at the bank premises as the number of customers of the concerned bank used to visit the bank premises in order to perform their daily works or jobs. Be it mentioned here that the security guard, in the instant case, has acted at the bank premises for and on behalf of the concerned bank in order to protect the customers of the bank concerned. But having looked into the performance of the aforesaid security guard we feel that he has certainly committed wrong as the gun shot/firing has been occurred due to exclusive fault on the part of him and the victim/complainant has received the grave injury upon his right leg. Due to aforesaid injury, the complainant/victim has become 60% handicapped at present discussed earlier.
Be it mentioned here that a First Appeal being no - 2488 of 2017 along with two interlocutory applications being nos - IA/20045/2017 and IA/20046/2017 have been filed by the State Bank of India/appellants against the order impugned dated 17/10/2017 in connection with CC case being no - 481/2017 wherein the Hon'ble NCDRC has been pleased to hold the following:-
"Admittedly the complainant had an account with the appellant bank. Therefore, he was a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act. He was availing the services of the bank, at the time he sustained gun-shot injury from the gun of the security guard. In my view, if the security guard employed by the bank fires a gun-shot due to his negligence in handling the un carried by him, it will be a case of deficiency in service to the customer since the bank would be vicariously liable for the negligence of the guard employed by it in handling the gun which he was carrying with him. The question as to whether the gun shot came to be fired on account of some negligence on the part of the guard or it came to be fired without any negligence on his part is a question to be decided on merit after evidence is led by parties ..........................the appeal, being devoid of merits, is hereby dismissed."
22.It is based on the general principle of qui facit per aliumfacit per se which means that the act of an agent is the act of the principle. So the bank cannot escape from their liability. The liability and responsibility should be borne by the opposite party/bank concerned due to the fault on the part of security guard.
23.It is settled principle of law that ignorance of fact is excusable but the ignorance of law is not excusable. So after happening of the event the ops/bank concerned cannot escape from their liability on the ground of accident occurred without any negligence.
As per order of Hon'ble NCDRC, the complainant is consumer under the Consumer Protection Act already proved. Tortuous/vicarious liability on the part of the ops/bank concerned is also proved.
After adducing evidence on both sides and upon careful perusal of the documentary evidence it also proved that the clear negligence on the part of Barkinvolved in the happening of the aforesaid event.
In pursuant to the above discussion we seem that the proper answers have been given against the conditions framed in order to constitute the tortuous liability and resultantly it is clearly proved that the aforesaid gun shut/firing has been occurred exclusively for the negligence on the part of the security guard of the concerned Bank.
It is last but not least that when there is a clear admission to make payment of Rs.10,10,633/- to the complainant/victim and also to consider a fair compensation package in favour of the complainant/victim upon receiving of the disability certificate as per Govt Guidelines, a question has been arisen as to whether there is any chance/opportunity for avoiding responsibility and liability by taking the plea of accident done due to the gun- shot/firing from the arms of security guard clearly enshrined in the written version filed by the bank concerned. The answer is negative as it causes clear bar to the principle of law of estoppels. At this stage, it is our view that the ops/bank concerned cannot travel with two boats simultaneously. The act and performance on the part of ops/bank concerned clearly reveal the negligence/fault on the part of them.
At this juncture there is no hesitation to hold that wrong or omission has already been done and to that effect the complainant has succumbed serious injury. So, upon careful scrutiny of the four corners of the record we can safely hold that there is a clear negligence and fault on the part of the bank concerned in the field of vicarious/tortuous liability but how much amount of compensation payable to the complainant is to be assessed and that should have been decided by the Commission in order to meet just and proper adjudication of the aforesaid matter.
Upon careful perusal of the citation submitted by the ops/bank concerned it appears to us that the ld counsel has tried to rely upon the judgement in support of her case but it should be just and proper to file the judgment of the Higher court in order to take the defence of her case.
In this respect we can safely rely upon the remarkable decision viz JAGDISH VS MOHAN AND OTHERS (CIVIL APPEAL NO 2217 OF 2018) wherein the Hon'ble Supreme court has been pleased to hold that in assessing the compensation payable, the settled principles need to be born in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:-
(i)Pain, suffering and trauma resulting from the accident;
(ii)Loss of income including future income;
(iii)The inability of the victim to lead a normal life together with its amenities;
(iv)Medical expenses including those that the victim may be required to undertake in future and
(v)Loss of expectation of life.
29.The Hon'ble Supreme court has also been pleased to hold that the compensation for loss of future prospects is not confined to those having a permanent job. It extends to also those who are self-employed.
Keeping in view of above observations, we try to calculate the amount of compensation which is as under:-
It is admitted that at the time of bullet injury the complainant was at the age of 32 years and his occupation was sewing machine worker. We have taken a view that he has to work up to the age of 60 years. Though an income certificate has been issued by Biswas Bag Centre dated 31.03.2015 yet upon objection raised by ops/bank concerned, we take a notional income per month amounting to Rs.6000/- six thousand only in order to consider the case. Rs 6,000 x 12 = Rs72,000/- pa.
Rs.72,000/- x 28 = Rs. 20,16,000/-
Rs. 20,16,000.00 Outstanding dues in respect of estimated medical bill/expenses of the complainant/victim Rs.5,36,000.00 It is admitted that the complainant/victim at present is only earning member in order to look after all family members consisting of wife, two school going daughters and ailing parents. To consider future prospects of the complainant/victim we consider the amount for compensation. Be it mentioned here that the complaint/victim has already attained 60% disability at present.
Rs.28,00,000.00 Mental and physical pain, agony and trauma of the complainant/victim Rs.50,000.00 Litigation cost Rs.20,000.00 Total amount for compensation including cost Rs. 54,22,000.00 ( fifty four lakhs twenty two thousand only)
31.Keeping in view of the above observations and for finality of litigation and regard being had to the citations of the Hon'ble Supreme court we are constrained to allow the instant consumer case against the ops/bank concerned on contest on the ground of vicarious/tortuous liability with an order of costs.
Hence, it is Ordered That the ops/bank concerned is hereby directed to pay compensation including cost amounting to Rs.54,22,000/- (fifty four lakhs twenty two thousand only) to the complainant within 45 days from the date of this order in default the whole awarded amount shall carry interest @ 9% p.a. from the date of filing (23.07.2017) of the CC case till full realization.
In case of non-compliance of aforesaid order within the stipulated period of time by the ops/bank concerned, the complainant is at liberty to put the order in execution.
The instant consumer case stands disposed of.
Note accordingly. [HON'BLE MR. SHYAMAL KUMAR GHOSH] PRESIDING MEMBER [HON'BLE MR. SUBHRA SANKAR BHATTA] JUDICIAL MEMBER