DR. SADHNA SHANKER, MEMBER

1.       The instant appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 05.09.2019 of the State Commission in complaint no. 04 of 2011, whereby the complaint was allowed.

2.       Proxy counsel appeared on behalf of the appellants (hereinafter referred to as the ‘bank’) without authority letter and sought a Passover. None appears for the bank after pass over of the matter.

We have heard the learned counsel for the respondents (hereinafter referred to as the ‘complainants’) and perused the record including the State Commission’s impugned Order dated 05.09.2019 and the memorandum of appeal.

Short synopsis filed by the bank is taken to be their final submissions.

3.       The brief facts of the case are that late Prakash Ch. Medhi, father of the complainants no. 1(A), 1(B) and 1(C), and his wife, Smt. Hemmalata Medhi, the complainant no. 2, being account holders, availed the locker facility (Locker No. 1090) from bank in the year 1997 for keeping their valuables. It is alleged that since they wanted to visit their son residing at Toronto, Canada in last part of March, 2010, they kept all the gold ornaments in the locker and locked the locker properly with their key and reported the locker-in-charge, who checked the locker and issued a certificate to the effect that the locker operated during the day had been properly locked. It is further alleged that on 07.10.2010, the complainant no. 1 received a phone call from the bank and asked the complainants to visit the branch immediately intimating him that something wrong has happened with the locker allotted to them. When they visited the bank, it was found that their locker was sealed by affixing a paper over the same and the deputy manager of the bank removed the paper in their presence and asked them to open the locker. While opening the locker, the complainants found that the locker was already open and all the ornaments kept in the locker were missing except one pouch in the corner of the locker. They lodged a written complaint to the bank immediately. However, in the said complaint the complainants could not give the accurate figure of the ornaments and their valuables. They requested the branch manager to inform the police immediately. It is alleged that the branch manager did not inform the police immediately and kept them waiting till 6.00 p.m. However, on the same date, an FIR was lodged by the bank. The complainant has alleged that they have suffered monetary loss of Rs. 23,85,600/- apart from mental agony.

4.       The complainants filed a complaint before the State Commission.

5.       The bank contested the complaint by filing written statement stating therein that Smt. Mridula Bhatttacharjee was never the Locker-in-Charge and she only verified the signature with the specimen of complainant no. 1 and allowed him to access to the locker no. 1090 on 11.03.2010 and the complainant no. 1 had left the locker room with the key without locking the locker and misrepresented the locker-in-charge that it has been properly locked and it came to the knowledge on 07.10.2010 when Smt. Mridula Bhattacharjee went to locker room while the technician from Godrej was repairing one of the defective lockers. The locker of the complainant was sealed in front of bank official and other witnesses. It was further stated that the fault lies with the complainant no. 1 in not locking the locker properly and there is no deficiency on the part of the bank. It is alleged that no certificate certifying that the locker operated during the day have been properly locked had been issued. It is further alleged that as per the system adopted in the bank for use of locker facility there is no scope for the outsiders or even for the staff of the bank to open the locker without the key provided to the hirer at the time of hiring the locker and the allegation of breaking open the locker by anybody else is baseless and there is no deficiency on the part of the bank and the complaint is liable to be dismissed.

6.       It is alleged that during the pendency of the complaint, Prakash Ch. Medhi, complainant no. 1 expired. His legal heirs i.e. son and daughters have been substituted as complainant no. 1(A), 1(B) and 1(C) along with complainant no. 2.

7.       The State Commission, vide its impugned Order dated 05.09.2019, allowed the complaint and directed the bank to pay compensation of Rs.23,85,600/- against the value of the ornaments and jewelleries with interest at the rate of 8% per annum from the date of filing of the complaint till realization. Rs. 50,000/- towards compensation for mental agony and harassment and Rs. 10,000/- towards cost of litigation were also awarded.

8.       Aggrieved by the said Order of the State Commission, the bank filed the instant appeal before this Commission.

9.       The bank’s written synopsis have been taken as their final submissions as on date of final hearing proxy counsel appeared without authority from the main counsel to argue the matter. It has been argued that the complainant has failed to produce income tax return or any other documentary evidence relating to the jewellery worth Rs. 23,85,600/- . The fault lies with the complainant as he had not properly locked the locker and if the locker had not been properly locked, the bank cannot be blamed. As per the clause 3, 12, 13 and 18 of the agreement it is the responsibility of the complainants / hirer and not of the bank to ensure that the locker is properly closed or not and the bank is only responsible to ensure that no access is given to any stranger. Furthermore, the compensation of Rs.23,85,600/- lakh along with compensation of Rs. 50,000/- towards mental agony and Rs. 10,000/- as cost of litigation as awarded by the State Commission is on the higher side as it amounts to more than the value of the alleged valuables as claimed by the complainants to have been kept in the locker.

10.     Learned counsel for the complainants vehemently argued that the complainants opened their locker with their key and kept all the gold ornaments in the lockers and thereafter properly locked the locker with their key and reported the locker-in-charge, who issued a certificate to the effect that the locker operated during the day and had been properly locked. He further argued that it is admitted by the bank official in the FIR that some technician from Godrej were engaged for repairing of some defective lockers and that one Sri Sunil Barman, mechanic from Godrej company, visited Guwahati to repair few lockers at the request of the bank. It is also admitted by the bank that the in-charge of the lockers found that the locker maintained by the complainants were not properly locked and was opened. He further argued that it is unbelievable that the bank had noticed that the locker was not properly locked after a long gap of seven months and even if for the sake of arguments, it is believed, the conduct of the official of the bank palpably displays the negligence on its part and is a clear case of deficiency on the part of the bank. In support of his contention, he placed reliance on the decision of this Commission rendered in the case of Punjab National Bank, Bombay vs. K. B. Shetty, first appeal no. 7 of 1991 decided on 06.08.1991.

 11.    The main issue arises in this appeal is whether there was deficiency in service on the part of the bank and if so, what should be the quantum of compensation to be awarded in this case.

12.     It is apposite to quote the relevant part of affidavit evidence of Smt. Mridula Bhattacharjee, which reads thus:

“1. xxxxxx

2. That I was working as special assistant for verifying the signature of hirer of locker in Guwahati Branch of State Bank of India since September 2007 and has been shifted to single window counter of the Branch w.e.f. 13.05.2013.

3. That my duty as special assistant was to verify the signature of hirer and lead them to the locker room and to apply the mater key in custody of the bank in order to open the locker. I left the locker immediately after applying the master key and thereafter the hirer apply his key for opening the locker. It may be mentioned here that the locker does not get open unless and until the hirer apply his key. It may further be mentioned here that it is the duty of the hirer to lock the locker by apply his key. It is not necessary to use the master key for locking the locker.

4.       That on 11.03.2010 the complainants came to the Guwahati Branch of the opposite party Bank. I verified their signatures with the locker register relating to locker No. 1090 which appears to be correct. Then I accompanied them to locker No. 1090 and after applying the master key for opening the said locker I left the locker room and became busy with my other duties. Thereafter it was for the complainants to open and after operation locked the locker properly. My duty was over after applying the master key as such I did not pay attention so far as operation and properly locking of the locker by the complainants. It is not a fact that the key of the customer does not come out unless the locker is properly locked. It is also not a fact that the complainants properly locked their locker after operating the same on 11.03.2010. It is also not a fact that I checked the locker and issued a certificate that the locker operated during the day has been properly locked……”

13.     From a perusal of the affidavit evidence of Smt. Smt. Mridula Bhattacharjee, a bank employee, it is manifest that complainant visited the bank on 11.03.2010 and it is admitted that Smt. Mridula Bhattacharjee did not pay attention so far as operation and properly locking of the locker by the complainants and her duty was over after applying the master key to open the locker. Once she did not pay any attention and her duty are over immediately after applying the master key for opening the locker, there is no basis to aver that the complainant had not properly locked the locker. It is seen that the alleged lapse on the part of the complainant came to light after a long gap of seven months. It is the duty of the bank officials to open and lock the locker room on daily basis during business hours and not noticing such a lapse for such a long period is unlikely. It is an admitted fact that the bank official found that the locker hired by the complainants was open while some technician from Godrej was engaged for repairing of some defective lockers.

14.     It is apposite to rely on the decision of Amitabh Dasgupta vs. United Bank of India (2021) 14 SCC 177 wherein it has been categorically held that  the “banks owe a separate duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems. This includes ensuring the proper functioning of the locker system, guarding against unauthorized access to the lockers and providing appropriate safeguards against theft and robbery. This duty of care is to be exercised irrespective of the application of the laws of bailment or any other legal regime to the contents of the locker. The banks as custodians of public property cannot leave the customers in the lurch merely by claiming ignorance of the contents of the lockers”

15.     In this perspective, the deficiencies pointed out by the complainants regarding the safety and security systems of the bank have not been answered or contradicted by the bank. They have simply stated that the complainants have not locked the locker properly for which they failed to produce any concrete evidence. This is a clear case of deficiency in service on the part of the bank regarding security of the complainant’s locker. The bank had failed to exercise due care and due diligence in maintaining the complainants’ locker.

16.     As regards the loss on account of contents of locker, it is a settled legal proposition in terms of the decision in Amitabh Dasgupta (supra) that the dispute regarding the contents of the locker cannot be adjudicated before the consumer fora and must be evaluated by the civil court for proper appreciation of the evidence led by the parties.

17.     In view of the above discussion, we are of the view that the bank was deficient in service in respect of lapses in the due care and attention to the safety and security of the locker but the amount of compensation must be just and reasonable and commensurate with the loss and injury suffered by the complainants and the compensation of Rs. 23,85,600/- lakh towards cost of jewellery and compensation of Rs.50,000/- towards mental agony along with Rs. 10,000/- as cost of litigation as awarded by the State Commission is on the higher side. We are of the opinion that the compensation of Rs. 10 lakh for deficiency in service on the part of the bank is just and reasonable.  We order accordingly. The Order of the State Commission stands modified to that extent. The amount be paid within six weeks from the date of this Order, failing which, the interest at the rate of 9% per annum shall be paid on the aforesaid amount from the date of this Order till the date of payment is made.  The amount awarded for mental agony and litigation cost is set aside.

18.     The appeal stands disposed of in above terms.