State Consumer Disputes Redressal Commission
Punjab & Sind Bank, vs Jasbir Kaur on 21 March, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.984 of 2008.
Date of Institution: 08.09.2008.
Date of Decision: 21.03.2013.
1. Punjab & Sind Bank, Head Office 21, Rajindra Palace, New Delhi
through its Authorized Officer Sh. D.S. Chawla, Sr. Manager, Punjab &
Sind Bank, Zonal Office, Rajbaha Road, Patiala.
2. Punjab & Sind Bank, SST Nagar, Branch Office Patiala through its
Branch Manager Sh. Charanjit Singh Anand.
.....Appellants.
Versus
1. Jasbir Kaur wife of Sh. Inderjit Singh;
2. Inder Singh S/o Sh. Avtar Singh;
Both Rs/o 886, SST Nagar, Patiala, District Patiala.
...Respondents.
First Appeal against the order dated
17.07.2008 of the District Consumer
Disputes Redressal Forum, Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. D.P. Singh, Advocate, counsel for the appellants.
Sh. Sandeep Chopra, Advocate, counsel for the respondents.
--------------------------------------------- INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order shall disposed of two appeals i.e. First Appeal No.984 of 2008 (Punjab & Sind Bank & Anr. Vs Jasbir Kaur & Anr.) and First Appeal No.985 of 2008 (Punjab & Sind Bank & Anr. Vs Brij Bala & Anr.), as the question of facts and law involved in both the appeals are the same and both the appeals are directed against two similar orders dated 17.07.2008 passed by the learned District Consumer Disputes Redressal Forum, Patiala (in short "the District Forum"). The facts are taken from First First Appeal No.984 of 2008 2 Appeal No.984 of 2008 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Smt. Jasbir Kaur and another, respondents/complainants (hereinafter called as "the respondents") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), against the appellants, asserting that they jointly opened a locker bearing no.31 with Punjab & Sind Bank at SST Nagar, Patiala on 17.12.2005 and kept all the valuable belongings i.e. gold ornaments etc. in that locker for safe custody. The requisite fee was paid. At the time of opening the locker, appellant no.2 assured the respondents that their belongings will be in safe custody in the locker. The respondents were keeping the locker regularly since 1988, as they possessed good amount of gold jewellary which was purchased by them, including gifts by their ancestors and some ornaments were as old as more than 100 years and were their family heritage.
3. On 17.01.2006, the respondents came to know that a dacoity has taken place at appellant no.1 bank and their locker bearing no.31 along with other articles has been broken open with gas cutters and all their belongings had been taken away by the dacoits. FIR No.20 dated 18.01.2006 was lodged. The respondents were called to the bank and the police authorities asked them to furnish the details of their belongings which were kept in the locker and respondent no.1 furnished the list of articles which were kept in the locker to the best of her memory. Two years have passed since then, but the bank officials have not compensated the respondents. The matter is being delayed on one pretext or the other. The respondents have lost about 463 gms. i.e. 46 Tolas 3 gms. of gold ornaments in which one set measuring 50 gms. i.e. 5 Tolas was an ancestral ornament which held sentimental value for the respondents, as it was more than 100 years old and was in the family from one generation to other. The appellants were duty bound to protect these articles, but they failed to do their duty and to abide by the guidelines of the Reserve Bank of India.
First Appeal No.984 of 2008 3
4. It was prayed that the respondents are entitled to recover an amount of Rs.5.00 lacs towards the loss of the articles kept in locker no.31 of appellant no.2 and Rs.2.00 lacs as compensation and Rs.20,000/- as litigation expenses.
5. In the written version filed on behalf of the appellants, preliminary objections were raised that the present complaint in the present form is not maintainable and deserves to be dismissed. The respondents have no cause of action and the Forum has no jurisdiction. The complaint has been filed just to harass the respondents and is based upon a false and frivolous claim and the same is liable to be dismissed with special costs of Rs.10,000/-.
6. On merits, it was pleaded that the respondents are not consumers. However, it was admitted that respondent no.1 opened a joint account with one Sh. Inderjit Singh and not with Sh. Inder Singh. Taking of the locker and paying of the requisite fee was admitted. It was further submitted that respondent no.1 along with one Inderjit Singh, by their sweet will and volition, opened locker account no.66 with the appellants in Branch Office, SST Nagar, Patiala after admitting the terms and conditions for opening, maintenance and operation of the locker. They used to operate the locker as per their requirement and convenience. A dacoity took place in the bank and burglars had broken three lockers and took away the articles from the locker during night hours. The matter was reported to the police and FIR No.21 dated 18.01.2006 was registered. Later on, the burglars were arrested and some of the ornaments were recovered by the police and the challan was presented and the case is now pending in the court of Judicial Magistrate Ist Class, Patiala.
7. As per Condition No.21 of the documents duly signed by the customers of the bank, the relationship between the bank and the locker holder is that of a landlord and tenant and not that of a bailer and bailee. There is no liability of the bank and the bank is unable to assess the valuable First Appeal No.984 of 2008 4 articles lying in the locker, since the locker is secret vault and the criminal case is pending. The bank has taken due care regarding the safety of lockers as per the Reserve Bank of India guidelines and is not liable to pay any damages. The loss cannot be assessed, as no one knew as to what was lying in the locker. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that appellant no.2 had charged Rs.500/- being the fee of the locker and it was duty bound for safe custody of the articles lying in the locker and there is deficiency in service and gross negligence on the part of the bank. The complaint was partly allowed and appellant no.2 was directed to pay Rs.5.00 lacs along with interest @ 9% p.a. from the date of filing the complaint till realization and Rs.10,000/- as compensation.
10. Aggrieved by the impugned order dated 17.07.2008, the appellants have come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellants and respondents.
12. In the written arguments filed on behalf of the appellants, the pleadings were repeated. It was further submitted that the bank had no knowledge about the articles lying in the locker. It is the practice that after operating the locker, the locker holder locks the locker first and thereafter the bank official locks the locker by bank key. The District Forum believed the statement of the respondent about the articles mentioned in the list. One of the respondents/ complainants is bank manager, who did not dare to file affidavit to support the averments made by his wife and the findings of the District Forum are against the natural justice. Respondent no.1 Jasbir Kaur First Appeal No.984 of 2008 5 was not allowed to be cross-examined. Without cross-examination, the evidence cannot be read. The articles recovered from the burglars are lying in the Malkhana. The matter is complicated and full trial is required to scrutinize the matter and there is no evidence on record to show that there was any deficiency in service on the part of the appellants.
13. The respondents did not challenge the terms and conditions of the agreement, as per which the locker holder is a tenant and the bank is landlord and the matter can be scrutinized by the civil court. There is no agreement regarding the interest. It was prayed that the appeal may be accepted and the impugned order may be set aside.
14. In the written arguments filed on behalf of the respondents, the pleadings were repeated. It was submitted that the officials of the bank had assured the respondents that their belongings will be kept in safe custody, but the officials of the bank failed to take proper measures and to safeguard the articles. The appellant bank admitted that there was no strong room in the bank, but still the respondents hired the locker with their free will. This fact speaks volumes of the negligence of the appellant bank. The bank by providing locker was providing service. There is no irregularity or infirmity in the order under appeal and the appeal may be dismissed.
15. We have considered the respective written submissions of the parties and have minutely examined the entire record placed on the file.
16. The respondents jointly opened a locker bearing no.31 with the appellant no.2 bank on 17.12.2005. The locker was being operated regularly. As per the averments of the respondents, the golden ornaments, jewellary, including the gifts by ancestors and some ornaments which were more than 100 years old were kept in the locker. Admittedly, the dacoity took place on 17.01.2006 in the appellant bank and the locker bearing no.31 of the respondents was broken open and all the articles were taken away. The matter was reported to the police and FIR No.20 dated 18.01.2006 Ex.C-1 was lodged at P.S. Kotwali, Patiala. The respondents provided the list to the First Appeal No.984 of 2008 6 Branch Manager of the appellant bank Ex.C-2, mentioning that 463 gms. of gold was kept in the locker. Ex.C-3 is the publication in "The Tribune" dated 05.08.2007 as per which, RBI directed the banks to take due care and precaution in protecting the lockers. Ex.C-4 is the application given by the respondent Jasbir Kaur regarding the dacoity and the missing of the ornaments from locker no.31. Ex.R-2 is the bank record which shows that the locker (safe deposit vault) was being operated by the respondents.
17. The arguments that the relationship between the appellants and the respondents was that of landlord and tenant, is not tenable in view of the law laid down by the Hon'ble National Commission in case "Canara Bank Vs Agnes D'Mello", 2006(1) Consumer Law Today-348, wherein it was held that the bank, by providing the locker, was providing service to its consumers to keep the ornaments. The bank is service provider and the respondents are consumers.
18. In another case wherein the locker was broken and the ornaments were found missing, the Hon'ble National Commission laid the law. In case "Allahabad Bank, Bhopal Vs Ranbir Singh Bhadoriya", 2006(1) Consumer Law Today-526 (NC), the loss of ornaments was stated to be by the complainant to the tune of Rs.4,35,260/- and Rs.2.00 lacs as compensation was provided.
19. Applying the above proposition of law to the facts and circumstances of the present case, which are similar, it is clear that appellant no.2 bank was the service provider and the respondents were consumers and they were operating the locker. As per the allegations of the respondents, the ornaments worth Rs.5.00 lacs or so were stolen. Although, the exact position of the locker cannot be determined, yet the averments of the respondents have to be taken into consideration as well as the settled proposition of law that the exact value of the ornaments is not to be awarded by the Consumer Courts, but some compensation has to be given. In such circumstances, we are of the opinion that the compensation of Rs.2.5 lacs will be just, fair and First Appeal No.984 of 2008 7 sufficient to compensate the respondents. The District Forum has allowed the amount of Rs.5.00 lacs which was the alleged value of the ornaments, but the order passed is not correct and is required to be modified.
20. Accordingly, the appeal filed by the appellants is partly accepted and the impugned order under appeal dated 17.07.2008 passed by the District Forum is modified to the extent that appellant no.2-bank is directed to pay Rs.2.5 lacs (Rupees Two Lacs Fifty Thousand) as compensation to the respondents in equal shares along with interest @ 9% per annum from the date of the dacoity till realization. The District Forum has also awarded the compensation to the tune of Rs.10,000/-, but the interest and the compensation cannot be awarded together. Therefore, the order of the District Forum, awarding compensation of Rs.10,000/- is set aside. With this modification, the appeal stands disposed of.
21. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondents/ complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
22. Remaining amount as per this order shall be paid by the appellant no.2 to the respondents/complainants within 45 days of the receipt of copy of the order.
First Appeal No.985 of 2008:-
23. Similarly, in First Appeal No.985 of 2008 (Punjab & Sind Bank & Anr. Vs Brij Bala & Anr.), the respondents/complainants jointly opened a locker bearing no.45 with Punjab & Sind Bank at SST Nagar, Patiala on 29.12.2005 and kept all the valuable belongings i.e. gold ornaments etc. in that locker for safe custody. The requisite fee was paid. On 17.01.2006, the respondents came to know that a dacoity has taken place at appellant no.2 bank and their locker bearing no.45 along with other articles has been broken First Appeal No.984 of 2008 8 open with gas cutters and all their belongings had been taken away by the dacoits. FIR No.21 dated 18.01.2006 was lodged. The respondents furnished the list of articles which were kept in the locker to the best of their memory. Two years have passed since then, but the bank officials have not compensated the respondents. The matter is being delayed on one pretext or the other. The respondents have lost about 266 gms. i.e. 26 Tolas 6 gms. of gold ornaments and about 300 gms. of silver ornaments. The approximate value of the ornaments was Rs.3.00 lacs. The appellants failed to protect these articles and to abide by the guidelines of the Reserve Bank of India.
24. It was prayed that the appellants may be directed to pay an amount of Rs.5.00 lacs to the respondents i.e. Rs.3.00 lacs towards the loss suffered by them along with Rs.1,80,000/- for mental tension and harassment and Rs.20,000/- as costs of litigation.
25. The complaint was contested by the appellants by filing written version on the similar lines of their written version given in F.A. No.984 of 2008.
26. The District Forum vide order dated 17.07.2008, on the similar findings as given in F.A. No.984 of 2008, accepted the complaint and directed the appellant no.2 to pay Rs.3.00 lacs along with interest @ 9% p.a. from the date of filing of the complaint till payment and Rs.10,000/- as compensation.
27. Perusal of the record shows that the respondents jointly opened locker no.45 with appellant no.2-bank on 29.12.2003 and on 17.01.2006, a dacoity took place in the bank and the above said locker of the respondents was broken open all the articles were taken away. The matter was reported to the police and FIR No.20 dated 18.01.2006 Ex.C-1 was lodged at P.S. Kotwali, Patiala. The respondents provided the list to the Branch Manager of the appellant bank Ex.C-2, mentioning that 266 gms. of gold ornaments and 300 gms. of silver ornaments were kept in the locker. Ex.R-2 is the bank record which shows that the locker (safe deposit vault) was being operated by First Appeal No.984 of 2008 9 the respondents. As per version of the respondents, the approximate value of the articles stolen was Rs.3.00 lacs.
28. In view of the above discussion as well as the reasons and discussion held in First Appeal No.984 of 2008 (Punjab & Sind Bank & Anr. Vs Jasbir Kaur & Anr.), the First Appeal No.985 of 2008 (Punjab & Sind Bank & Anr. Vs Brij Bala & Anr.) is partly accepted and the impugned order under appeal dated 17.07.2008 passed by the District Forum is modified to the extent that appellant no.2-bank is directed to pay Rs.1.5 lacs (Rupees One Lac Fifty Thousand) as compensation to the respondents in equal shares along with interest @ 9% per annum from the date of the dacoity till realization. The District Forum has also awarded the compensation to the tune of Rs.10,000/-, but the interest and the compensation cannot be awarded together. Therefore, the order of the District Forum, awarding compensation of Rs.10,000/- is set aside. With this modification, the appeal stands disposed of.
29. The appellants in F.A. No.985 of 2008 had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondents/complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
30. Remaining amount as per this order shall be paid by the appellant no.2 to the respondents/complainants within 45 days of the receipt of copy of the order.
31. The arguments in both these appeals were heard on 11.03.2013 and the orders were reserved. Now the orders be communicated to the parties.
32. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
First Appeal No.984 of 2008 10
33. Copy of the order be placed in First Appeal No.985 of 2008 (Punjab & Sind Bank & Anr. Vs Brij Bala & Anr.).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member March 21, 2013.
(Gurmeet S)