A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 74/2013 against CC 44/2011 on the file of the District Consumer Forum, Medak at Sanga Reddy.
Between :
1. M/s. Gayathri Muralidhar
W/o P. Muralidhar
R/o Plot no. 105/A, Near Durgha Bus Stop
Malkajgiri, Hyderabad
2. Mrs. J. Rajya Lakshmi
w/o J. K. Kumar
r/o Plot no. 105/A, near Durgha Bus stop
Malkajgiri, Hyderabad .. Appellants/complainants
And
01. Punjab National Bank
Rep. by Branch Manager
Patancheru Branch
Medak District, AP 502 319.
02. Punjab National Bank,
Rep. by Chief Manager,
5,. Samsad Marg, New Delhi 110 001. .. Respondents/opposite parties
Counsel for the Appellants : M/s. A. Mahadev
Counsel for the Respondents : Mr. P. Venkateswara Rao
Coram ;
Sri R. Lakshminarasimha Rao… Hon’ble Member
And
Sri T. Ashok Kumar .. Hon’ble Member
Tuesday, the Twenty Second Day of October
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
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1. This is an appeal preferred by the complainant as against the orders dated 17.01.2013 in CC 44/2011 on the file of the District Consumer Forum, Medak at Sanga Reddy . For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that the complainants 1 and 2 who are the daughters and mother respectively are the customers of opposite party bank and they hold a joint locker facility bearing No. 103 in the Bank since October 2008, The said bank was chosen by the complainants as it was nearer to their previous residence at Chandanagar, Hyderabad. A sum of Rs.23,000/- was paid by the complainants as security deposit towards the said locker facility. The complainants kept gold and silver jewelry and antiquities worth nearly Rs.9 lakhs ( present market value ) in the said locker for safety and used to operate the locker as and when felt necessity. The locker was last operated on 18.5.2009 and thereafter the complainants shifted their residence from Chandanagar to Old Saffilguda, Secunderabad On 10.04.2010, Saturday, the first complainant came to the OP 1 bank to operate the locker and to her dismay she noticed that the locker was tampered. She was shocked to notice that all the jewellery kept in the locker was missing except one gold chain with hanging pagadam, few bills and few small empty boxes on seeing it, the first complainant immediately reported to the Incharge of the locker facility of the bank and the said Incharge replied that one of the customers of the bank already informed the authorities of OP. 1 that a complainants locker appeared to have been tampered and that OP. 1 tried to contact the complainant but could not do so as he did not have contact details of the complainants. Not satisfied with the reply of the in charge of locker facility, the first complainant brought to the notice of the Branch Manager of OP.1 about the said tampering of locker and missing of jewellery and simply he refused his responsibility for loss of jewellery from the locker. He further requested the first complainant not to file any complaint against him and that he would handle the issue without the intervention of police and thus sought time to resolve the problem amicably. On 12.4.2010 first complainant submitted her written grievance to the OP. 1 and despite several oral request and reminder dt. 17,.09,2010 , OP.1 did not make any attempt to resolve the issue. Therefore the first complaint filed a private complaint on 6.4.2011 before Additional First Class Magistrate at Sanga Reddy and the said Court directed Patancheruvu PS to register the case against the OP 1 and its employees and accordingly Cr No. 130/2011 was registered at the said P.S. The complainants also sent a legal notice dt. 26.4.2011 to the first opposite party and he denied the claim in his reply notice. When the OP. 1 was aware of tampering of the locker he should have lodged a police complaint or brought it to the notice of the complainants but failed to do so. OP. 1 also failed to provide security for locker and on account of it the complainants sustained loss of jewellery worth of Rs. 9 lakhs and the said acts of OP amount to deficiency in service and hence the complaint to direct Ops 1 and 2 to pay Rs. 9 lakhs to the complainants for loss of gold and silver kept in the locker together with interest 18% Pa from 10.04.2010 till realization, Rs. 3 lakhs compensation for mental agony, negligence and deficiency in service and Rs.10,000/- towards costs of the litigation.
3.. OP 1 filed its counter resisting the complaint denying the allegations made in the complaint and the said counter was adopted by second opposite party head office. The gist of the counter is as under :
The complainants have filed the complaint absolutely with concocted version alleging tampering of locker in question. There is no evidence or incriminating circumstances against the Ops regarding the alleged tampering of locker and therefore the Ops cannot be held responsible for the alleged loss of jewellery and that in case of loss of articles, if any, from a locker the banker being in the possession of a BAILEE cannot be held responsible for the loss in the absence of tangible and reliable evidence showing that bank is responsible for tampering. The first complainant did not complain anything about alleged tampering of locker and missing of jewellery to any of the bank officials including OP. 1 on 10.04.2010 and they did not request not to report to the police and promise to enquire into it internally and the said version was attributed baseless. Had the said version were to be true and the first complainant came to know about tampering of the locker and loss of jewellery certainly she would have given a written complaint immediately on 10.04.2010 to OP. 1 Manager, to his higher officials and police. she did not do so and later on with an oblique motive both the complainants cooked up a story and gave a complaint to the Bank Manager leisurely on 12.4.2010 with a concocted version. A letter dated 10.04.2010 given by the first complainant so also locker Register of the Bank discloses that she successfully operated the locker and on 10.04.2010 at 12.15 PM. Had there was any tampering of the locker by that time or that bank officials told her of tampering of the locker certainly she would have mentioned the same in her letter aforesaid and she even did not give any complaint about the alleged events to the Bank officials or police on the said date. There is no evidence indicating any physical features of tampering on the locker. On the other hand, in her letter dt. 10.04.2010 the first complainant expressed apology to the bank for her delay in informing her new address to the bank and it shows that her mental status was peaceful. Entries in Ex. B6 locker register disclose that on 10.04.2010 the complainant successfully operated the locker. As per the procedure governing operation on locking of lockers it is not possible for the bank officials to open the locker unilaterally with their own key in the absence of the key held by the locker holder. There is discrepancy about the value of alleged missing jewellery in the letter and notice got issued by the complainants. The Banking Ombudsman concerned also dismissed the complaint filed by the complainants vide orders dt. 3.7.2010 observing that there was no deficiency in service on the part of the Bank. in order to cover up their own laches and obsessed by Civil designs the present complaint was filed. Absolutely there is no deficiency in service and dereliction of duties on the part of the opposite parties and thus prayed to dismiss the complaint.
4. 1st Complainant filed evidence affidavit and also additional affidavit reiterating the case of the complainants and she was cross examined by other side and Ex. A-1 to A7 were marked on behalf of the complainants however, second complainant did not file any evidence affidavit but she was cross examined and therefore in the said cross examination of second complainant is of no consequence on behalf of the opposite parties. Even otherwise the said cross examination is no way helpful for the complainants to win the complaint. DW.1 Shyam sundari, Present Manager, DW.2 G. Venkanna, the then Bank Manager, DW. 3 Smt. N. Manjula, then Locker officer filed evidence affidavits on behalf of the Ops and DWs 1 to 3 were cross examined and Ex. B -1 to B 8 were marked for the OP
5. Having heard both sides and considering the evidence on record and written submissions, the District Forum vide impugned order dismissed the complaint holding that there was no deficiency in service on the part of the opposite parties.
6. Feeling aggrieved with the said order the unsuccessful complainants filed this appeal on several grounds and mainly contended that an oral complaint was made on 10.4.2010 itself about the tampering and it was admitted by DWs 1 and 2 and that there was no necessity for the1st complainant to give Ex. B1 just indicating the change of address that too expressing apology and that not giving reply immediately to Ex A3 implies that the facts narrated in the complaint are with within the knowledge of the Ops and therefore they did not choose to deny or take any action pursuant to the said complaint and that the complainants were fair in stating that one gold chain with Pagadam locket was found in the locker and other gold silvery etc jewellery were missing. No investigation was carried out pursuant to the complaints made that is verbal complaint dt. 10.4.2010 and written complaint dt. 12.4.2010 and that variation in variable jewellery if any is not a ground and disbelieve the case of the complainants and that DWs 2 and 3 admitted that even on 10.4.2010 an oral complaint was made to them and that even though list of articles were supplied to the bank they did not specially deny either in the written version or in their evidence that such articles were not kept in the locker and that Omdurman order does not bind the District Forum so also criminal case pending before concerned Magistrate does not come in the way of the present complaint and that order of the District forum is erroneous and not sustainable and thus prayed to allow the appeal and set aside the impugned order and consequently to allow the complaint as prayed for.
7. Heard counsel for appellant and written arguments were submitted the counsel for the respondent.
8. Now the point for consideration is whether the order of the District
Forum is sustainable ?
9. There is no dispute that the complainants hold a joint locker facility bearing No. 103 with first opposite party since October 2008 and that the locker was last operated on 18.5.2009. According to the complainants on 10.4.2010 Saturday the first complainant noticed that the locker was found to be tampered and that she was shocked to notice that all the gold and silver jewellery worth of Rs. 9 lakhs was missing except one gold chain with Pagadam locket, few bills and small empty boxes. She testified that on the same day, she orally reported about the said tampering of locker and missing of jewellery to OP. 1 the then Manager. Ie. DW.2 herein and that he promised to sought out the issue internally and thus requested not to give police complaint. In the written version filed on behalf of the OP 1 and also in the evidence affidavit of DW. 2 so also such affidavits of DWs. 1 and 3 the said aspects were specifically denied. Since the complainants allege that locker was tampered and jewellery was missing the burden is on them to prove the said aspects with clinching and dependable evidence.
10). Complainants contended in the grounds of appeal, that DWs. 1 and 2 admitted that oral complaint was given on 10.04.2010 itself. Perused the evidence of DW. 1 and there is no such an admission either in the evidence affidavit or in the cross examination. However, in the cross examination of DW. 2 , he admitted that on 10.04.2010 , Saturday, after the bank hours he received a phone at about 5.00 PM from the complainant about the complaint and that he informed to come on Monday, ie. On 12.4.2010 and that on 12.4.2010 the complainant has given Ex. A3 complaint about the tampering. He also admitted that he did not give any reply in writing to Ex. A3 complaint but orally explained that nothing has been tampered. DW. 3 the then locker Incharge also admitted that the first complainant made oral complaint on telephone on Saturday. But none of the said witnesses admitted that soon after operating the locker or during working hours on 10.04.2010 the first complainant complained to them orally with regard to the alleged tampering of locker and missing the jewellery nor that a written complaint was submitted on that date and categorically denied that on 10.04.2010 immediately after operating the locker the first complainant brought to their notice about such tampering of locker and missing of jewellery so also the allegation that prior to her visit to OP 1 one of its customer informed to OP about the tampering of the locker in question and that OP. 1 did not contact the complainants for want of contact details. PW.1 also deposed that then Bank manager disowned any responsibility and told her that bank will handle the issue without intervention of the police but there is no dependable evidence in the said context. Highly the version of the first complainant is improbable in the said context because if any customer of the bank finds his or her locker, was tampered and the jewellery worth of Rs. 9 lakhs was stolen certainly they will not keep quiet and would report to the higher officials of the Bank so also to the police. The conduct of silence on the part of the complainants more particularly first complainant being a woman improbablizes her contentions aforesaid. Had really, her jewellery was missing she would have created a scene in the bank attracting the customers because tendency women is that if a small gold ornament is lost they would not keep quiet. It is much more so , when PW.1 is highly qualified as she herself admitted in the cross examination that she is BA English ( literature ) graduate and her mother is M.A.
11. There is no dispute that 1st complainant gave Ex. B1 letter dated 10.4.2010 to Op.1 wherein she tendered apology to the bank Manager for the delay in informing new address to the bank. Admittedly the said letter does not contain any whisper that the locker was tampered and jewellery was missing. Had such a serious event occurred certainly the first complainant would have mentioned about the same in Ex. B1 but did not do so and therefore any amount of doubt can be entertained over the case of the complainants. Since there was no tampering of the locker and missing of alleged jewellery as mentioned in Ex. A3 complaint dt. 12.4.2010 the bank officials did not cause any enquiry or report the matter to the police and therefore,. they cannot be found with fault in the said context. There is no expert’s evidence from the side of the complainant that the locker was tampered. In such circumstances, it is difficult to decide the said aspect basing on Ex. A7 photographs. It is much more so when DW. 1 deposed after seeing the photograph in Ex. A6 that no tampering is done.
12. It appears that to give a genuine colour to the case of the complainants one gold chain with Pagadam locket was kept in the locker and therefore no credence need to be given for the version of the complainant in the said aspect. It is true that vide Ex B4 dt. 3.7.2010 the banking Ombudsman for Andhra Pradesh. held that no case of deficiency in service against bank as alleged is substantiated and the said order is not binding on the District Forum or this Commission but otherwise also the complainants could not make out any case for such deficiency in service against the bank. The said Ombudsman also observed that the complaint requires consideration of elaborate documentary and oral evidence and therefore held that the complainant is at liberty to approach any other Forum. Even the complainants filed before the Consumer Fora summary procedure is prescribed for and therefore if the complainants wish to approach Civil Court for redressal these orders shall not come in their way. and the observation made supra by this Commission is limited to the Consumer complaint only. The stand of the opposite parties is consistent from the beginning and the evidence of DWs 1 to 3 support the version of the Ops in this case. Since the banker is in the possession of Bailee it cannot be held responsible for the loss of jewellery if any in the absence of dependable evidence showing that there was tampering of locker of the complaint and that bank was responsible for it.
13. It appears that complaint was filed before concerned Magistrate on 6.4.2011 leisurely and as it was referred U/s. 156 (3) Cr. PC to the police for registering the case. They issued Ex.A 5 copy of FIR. The outcome of the criminal case is not on record and also its stage therefore it is not desirable discuss anything in the said context. It was elicited in the cross examination of DW. 2 by the complainants that on 21.04.2010 police, One, Nagaraju, SI of Police, Patancheruvu visited the Bank and enquired about the complainant and that DW. 2 explained that nothing has been tampered and that in turn it was informed to circle office of Punjab National Bank about the police visit. It means that prior to registering the said FIR on the referred complaint the complainant reported to police, police enquired into the matter and did not take any action and it is also a circumstance against the complainants. Since there is no legal and dependable evidence on record for the purpose of this case that the locker in question was tampered and that jewellery of the complainants was missing the decisions reported in 2006 (1) CP NC 231 Allahabad Bank, Bhopal Vs. Ranbirsingh Vharoriya is not helpful for the complainant because there is no contention of the bank that the locker was closed without key after removing the contents thereof by customer. The defence of the OP is that there was no such tampering of the locket in the case on hand.. In 1993 ( 1) CLT NC 591 in Punjab National Bank Vs KV Shakthi it was held pendency of criminal complaint is no bar to entertain the complaint by State Commission and they cannot be any dispute in the said context.
14. It is common experience that as per procedure governing operation of the lockers it is not possible for the bank officials to open the locker unilaterally with their own key in the absence of the key held by the locker holder. Ex.A7 does not reveal anything about tampering but it discloses that there are key holes to every locker and Ops clarified that one for the key of locker holder and second one is for the bank and third key hole is a provision for additional facility. A paper seal half thorn is visible on the locker and nobody explained in the said context and therefore it is of no consequence in favour of the complainant. In another decision reported in 2004 3 CPR NC 128 between AS Arunachalam Vs. Chief Manger, SBI on the ground that a sticker found pasted on the locker declaring A31 deceased locker access register was denied. Since there was no explanation by the Bank how the sticker declaring the locker holder deceased came to be tested it was held that there was deficiency in service so also not giving access to the locker access Register but no such circumstances exists in this case therefore the said decision is not useful. Since police complaint was not filed on the very same day of the alleged incident the decision in a case between Ugam Singh Vs. GM SBI and others Patiala decided on 20.07.1995 by Rajasthan SCDRC, Jaipur reported 1996 (1) CPR 188 is not helpful for the complainants herein. Thus viewed in any point the appeal is devoid of merit and is liable to be dismissed confirming the order.
15. In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs.
MEMBER
MEMBER
DATED : 22.10.2013
