STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA `

AT HYDERABAD

                                                            CC 19 of 2014

Between :

01.          Sri Mahendra Agarwal, S/o Sri Disukh Ram Agarwal,

                Aged about 57 years,  Occ : Business.

02.          Smt. Sarita Devi Agarwal, W/o Sri Mahendra Agarwal,

                Aged about 51 years, Occ : House wife.

Both are R/o H.No. 21-7-273, Charinagar, Hyderabad       ..             Complainants

And

01.          The Federal Bank Limited

Aluva

Kerala, India

Rep. by its Director.

02           The Senior Manager

                The Federal Bank Limited

                Big No. 4-3-389 to 392, 411, 422

                OPP. Surabhi complex, Bank street,

                Sultan Bazaar, Hyderabad – 500 001                         ..opposite parties

Counsel for the Complainant                         :           M/s. V. Hari Haran

Counsel for the opposite parties                     :           M/s. N. V. Subba Raju

Coram            :

Hon’ble Sri Justice B.N. Rao Nalla             …        President

And

Sri Patil Vithal Rao                           ..          Member

Friday, the Thirtieth   Day of June

Two Thousand Seventeen

Oral order :    ( Per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President )

                                                            *****

1. This is an appeal filed Under Section 17(1)(a) (i)  of the Consumer Protection Act, 1986 by the complainant  to direct the opposite parties to pay a sum of Rs.43,80,000/- towards the loss of gold articles, jewellery and diamonds owing to the negligent attitude of opposite parties, to pay a sum of Rs.5,00,000/- for deficiency in service in dealing negligently with the articles, jewellery of the complainant , to pay a sum of Rs.20,00,000/- towards damages and for mental agony sustained by the complainants and their family and costs.
2. For the sake of convenience, the parties are described as arrayed in the complaint.

3. The case of the complainant, in brief, is that  they hired a locker bearing No. 20 on 17.01.1996 from the opposite parties  and operating the same since then and used to safe-keep  gold ornaments and valuable diamonds and other diamond ornaments averagely about Rs.45 lakhs. They have been regularly paying the rent of the locker without giving any room for complaint and he was regular in utilizing the services of the locker facility. While the matter stood thus, they received a notice from the opposite parties in the month of March, 2010 intimating that there are arrears of hire charges payable by them and they paid  arrears in part of Rs.1000/- on 24.05.2010 to the second opposite party and also operated  the locker on the same day. When the second complainant and their son Srinivas Agarwal went to the second opposite party branch  to operate the locker on 30.04.2011, to their shock and dismay they were informed that their locker was already broke open on 09.02.2011  and that there is no locker facility in  their name and also further informed that their articles, gold ornaments and diamonds were kept on one cover and was asked to collect those articles. They raised objections for breaking open the locker no. 20 in their absence  without any intimation, illegally and arbitrarily without their knowledge. The alleged articles in the said cover were not original gold or diamonds and  were not theirs and merely artificial jewellery and pearls. Under threat and apprehension from the officials of the opposite parties, they were forced to accept the cover under protest. There was no seal also to the cover which was handed over to them. As on the last date of operation in May 2010 the jewellery articles and diamonds that were stored in the locker as under :-

The aforementioned gold jewellery, articles and diamonds are completely missing from the locker.  The officers of the opposite parties removed their jewellery with the sole intention to cheat them. They approached the opposite parties in March 2013 to settle the issue but they did not heed the same.  The complainants lodged police complaint vide FIR No 262 of 2011 dated 14.09.2011 and police informed  them that it is a civil nature vide letter dated 11.09.2013. They have also filed protest petition before the II Addl. Chief Metropolitan Magistrate at Hyderabad vide Sr No. 6945 of 2013. Hence  the complaint.  

4. (i)          The opposite parties filed objections contending that  the complaint is barred by limitation as the cause of action arose on 30.04.2011 and he complaint was filed on  20.012014, i.e., after a huge delay of 995 days.  No sufficient cause is shown by the complainants for not filing the compliant within the statutory period of two years. Endorsement of Police on 11.09.2013 that the complaint is civil nature does not constitute cause of action.  

(ii)          While admitting hiring of locker No. 20 @ Rs.200/- rent per Annum contended that the complainants failed to pay rent for 5 years totalling to Rs.3785/- in spite of reminders by them. On 24.05.2010, complainant no. 1  visited the branch and remitted part of the arrears i.e., Rs.1000/- and promised to clear the arrears of Rs.2,785/- within two weeks. Hence they were constrained to issue a notice dated 10.06.2010 informing that in case they failed to pay the entire arrears within one month, the locker facility would stand withdrawn and the locker shall be broke open. Though received notice but did not pay the arrears.  On 09.02.2011, the Locker was broke open by complying with the extant procedure of the Bank by the authorised Technician of M/s. Godrej and Boyce Co. Ltd., in the presence of the Principal Officer of the Branch. Officials  in charge of lockers, Legal officer of the Bank and an Advocate and one of the customers as independent witnesses. An inventory of articles available in the locker was also prepared in the presence of the independent witnesses.  Following items were available in the locker at the time of breaking opening of the Locker NO. 20.

            (1)        4 rings, 2 rings and 1 ring

            (2)        Pearl necklace 1, 2 fold and 19 single fold, Pearl Bracelet, 1 Necklace, (5 line) and loose pearls

            (3)        5 small rings, 1 chain, 1 bracelet and 1 Bangle

            (4)        2 rings, 2 ear rings, 1 coin, 2 ordinary bangles and stone necklace

            (5)        7 pouches of loose pearls

(iii)       On intimation, the second complainant visited the branch on 30.04.2011 and  she was requested to collect the articles.  On 02.05.2011, the second complainant visited the branch and collected the articles and also acknowledged receipts of the articles without any protest. No loss of articles has caused to the complainants

(iv)       Admittedly the complainants collected articles from the bank on 02.05.2011  but the criminal complaint with the police vide FIR dated 14.09.2011 i., after a delay of 132 days.

(v)        The complainants cannot be construed as ‘Consumer ‘ under the C.P. Act  since the complainants failed to pay the necessary charges as per the terms and conditions of the contract  and there is no deficiency in service  or unfair trade practice on their part and hence the complaint does not fall under the jurisdiction of this Commission.

5. During the course of enquiry, in order to prove his case, the 1^st complainant   filed his evidence affidavit and got marked Ex. A1 to A10  and on behalf of the opposite parties   Sri N. Harinadha Rao, Manager filed his evidence affidavit and Ex. B-1 to  B-13  are marked.

6. Counsel for the complainants and the opposite parties  had advanced  their arguments reiterating the contents of complaint, objections, affidavit evidence in addition to filing of written arguments. Heard both sides.

7. The points that arises for consideration are

(i)          Where there is any deficiency in service on the part of the opposite parties and whether the complainants are  entitled for the reliefs as prayed for ?  If so,

(ii)          to what relief ?

8. POINT NO. 1:

(i)          There is no dispute that the complainants hired a locker bearing No. 20  from the opposite parties Bank on 17.01.1996 for paying rent @ Rs.200/- per annum vide Ex B-1 and B-2   and they used to keep gold and diamond ornaments in the said locker.

(ii)          There is also no dispute that the complainants received a notice from the opposite parties in the month of March 2010 to pay arrears of rent and they paid an amount of Rs.1000/- in part  on 24.05.2010.

(iii)         There is also no dispute that the opposite parties issued notice to the complainants on 10.06.2010 vide Ex. B-5 stating that their Locker No. 20 shows arrears of Rs.2785/- as on date and clear the arrears before 20.06.2010 and no further operation of the locker will be allowed without clearing the arrears. Bank will be forced to break open the locker without further notice, if the arrears are not cleared on or before 30.06.2010.

(iv)        There is also no dispute that the Locker was broke open on 09.02.2011 and found the articles mentioned in the counter by the opposite parties.

(v)         There is also no dispute that the opposite parties informed to the complainants stating that on breaking open of Safe Deposit Locker  No. 20 on 09.02.2011 hired by the complainants the items mentioned in the counter were found  vide Ex.B8= Ex.A1 dated 02.05.2011  and they are releasing the said items as per their request letter dated 02.05.2011 vide Ex. B9.

(vi)        There is also no dispute that the complainants gave police complaint on 4.5.2011 vide Ex.A-2 to the Station House officer, P.S. Sultan Bazar, Hyderabad  against the opposite parties Bank stating that he lost the gold and diamond articles mentioned in the compliant  in the Locker no. 20 of the Bank and Ex. A-3 to the Deputy Commissioner of Police, East Zone, Hyderabad for appropriate directions to the concerned. Ex.A-4 is the FIR dated 14.09.2011 and the police referred it as Civil nature vie Ex. A-5.

(vii)        There is also no dispute that the complainants got issued legal notice dated 11.11.2013 to the opposite parties to pay compensation of Rs.43,38,000/- towards the loss of ornaments, which were kept in the locker No 20 of the Bank,  mentioned in the complaint vide Ex. A6 and  they also received reply notice vide Ex. A-7 to the complainant denying the same except mentioned in the counter.

09.      (i)          The  contentions of the complainants are  that since no notice was given to the `    complainants  as regards the date on which the banker sought to break open the locker amounts to deficiency in service under section 2 (1)(g) of the C. P. Act. The notice received by the complainant was on 10.06.2010 informing the complainants to clear the arrears and the opposite parties broke open  the locker on 09.02.2011  nearly after six months of the notice. This shows that the complainants had cleared all the dues and breaking open the locker was merely an afterthought solely to harass the complainant and caused loss to the complainants. The opposite parties failed to comply with the legal procedure for beak opening of the locker. The complainant had deposited an amount of Rs.2,000/- as security deposit towards the locker an should have adjusted the amounts due as rent from the security deposit.

           (ii)          The opposite parties refuted that the locker was broke open after issuing notice to the complainants and by following extant guidelines of the Bank and in the presence of independent witnesses. There was no threat/coercion on the part of the bank. The complainant accepted the cover containing the articles lying in the Locker after verifying the same . The complainants acknowledged receipts of the articles without any protest on 02.05.2011. 

           (iii)         We have perused the record. The opposite parties issued Ex.B-5 notice dated 10.06.2016 to the complainant to pay the arrears of Rs.2785/- towards rent of the locker before 20.06.2010 and further informed if the arrears are not cleared on or before 30.06.2010, the bank will be forced to break open the locker without further notice.. There is no evidence on record to show that the complainants paid the due amount till 09.02.2011. Ex. B-6 shows that they opened the locker on 09.02.2011 and found the items mentioned in the counter in the presence of some persons. The opposite parties waited for about six months after giving notice to pay the arrears of rent. The complainants should have approached the opposite parties and paid  the arrears immediately after receipt of the notice when they kept valuable ornaments in the locker but they failed to do so.

(iv)        But in Ex B-6 there are some signatures but there are no designations who they are and whether they belong to this transaction. Admittedly, no notice was given to the `complainants as regards the date on which the banker sought to break open the locker. It is the duty of the Banker when a locker was issued to customers for safe custody for the purpose of security and taking amount of rent, broke open of such locker in their absence is highly deplorable. If the banker had issued notice to the complainants that the locker will be broke  open on 09.02.2011, the complainants would have been present on that day and this type of complaints would not have arisen.

(v)         Ex.B-10 copy of Safe Custody Register shows that the second complainant, received the articles under protest on 02.05.2011.  Ex.B-10 does not show the names of the items clearly that were receiveD by the second complainant. But the opposite parties did not place before this Commission the copy of the Safe Custody Register with regard to the contents of the ornaments that were deposited in the locker.  In the absence of such copy of the Register, before us, it is not possible to come to a conclusion which ornaments were kept in the locker and which ornaments were lost by the complainants. There is no evidence on record that the designations of the persons who were present and signed  at the time of breaking  of the locker. Since it involves complicated questions of fact and law, it requires recording of voluminous evidence to prove which ornaments were lost by the complainants. In view of the same, without entering into the other aspects of the case, we thought it fit Civil Court is the appropriate forum to redress the grievances of the complainants.

Point No. 2 :

10.      After considering all the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the complainant and opposite parties,  this Commission is of the view that the  complainants can approach Civil Court and seek redressal of  their grievances  since complicated questions of fact and law are  involved.

11.      IN the result, the complaint is disposed of accordingly with the above observations and the complainants can approach appropriate Civil Court  if they are so advised.  However, they can claim the benefit U/s.14 of Indian Limitation Act to exclude the period spent in prosecuting the proceedings under the C. P. Act. . There shall be no orders as to costs.

                                                                                    PRESIDENT               MEMBER

                                                                                                DATED : 30.06.2017.

APPENDIX OF EVIDENCE

                                                            DOCUMENTS MARKED

FOR COMPLAINANTS        :

Ex.A-1   :               02.05.2011:         Copy of letter given by the opposite parties informing breaking

                                                                open of the Safe Deposit Locker No. 20 om 0-9.02.2011

Ex.A-2   :               04.05.2011:         Copy of Police complaint to Station House Officer PS. Sultan Bazar

Ex.A-3   :               08.09.2011:         Copy of Police complaint to the Deputy Commissioner, West Zone,

                                                                Hyderabad.

Ex.A-4:                  14.09.2011:         Coy of FIR No. 262/2011 dated 14.09.2011.

Ex.A-5:                  `11.09.2013:        Copy of letter No.1435/I.W/SBR-D/2013 given by the Police stating Case

                                                                of Civil nature   

Ex.A-6:                  11.11.2013:         Copy of legal notice issued by the complainants to the opposite parties

                                                                Seeking demand for damage

Ex.A-7:                  20.11.2013:         Copy of reply notice given by the Bank to the complainant

Ex.A-8   :               -              :               Copies  of IT returns of Mahender Agarwal, 1^st petitioner  for the years

                                                                2006-07 to 2011-2 ( four in number )

Ex.A-9:  `               -              :               Copies ;of IT returns of Smt. Sarita Agarwal, 2^nd petitioner for the years

                                                                2008-09 to 2011-12 ( three in number)

Ex.A-10:               -              :               Copy of protest petition filed by 1^st complainant  before the II Addl.

                                                                Chief Metropolitan Magistrate at Hyderabd vide SR o 6945/2013 the                                       application is still pending  hearing )

FOR THE OPPOSITE PARTIES :

Ex. B-1: 17.01.1996           :               copy of the request for allotting a cubicle of Safe Deposit                                                                                             Locker by the complainants to the opposite party bank.

Ex. B-2: 17.01.1996           :               Copy of Security Deliver Letter by the complainants  to the                                                                                          opposite party bank

Ex.B-3:  17.01.1996           :               Agreement for hiring locker by and between the                                                                                                              complainants and the Ops Bank

Ex.B-4:  -                              :               Copy of the Ledger of the complainants Safe Deposit                                                                                                     Locker Register

Ex.B-5   : 10.06.2010        :               Copy of the notice sent by the opposite party bank to the

                                                                                complainant  while break open the locker No. 20.

Ex. B-6: 09.02.2011           :               Copy of panchanama conducted by the opposite party                 

                                                                Bank  while break open the locker no. 20

Ex.B-7:             30.10.2010      :           Copy  of the letter by the 2^nd opposite party Bank  to its

                                                            Retail Business Department  regarding break opening of                                                                 Safe Deposit Lockers

Ex.B-8`:            02.05.2011      :           copy of the letter by the second opposite party bank  to

                                                            complainants

Ex.B-9:             02.05.2011      :           Copy of the letter from the 2^nd complainant  to the 2^nd                                                                     opposite party bank

Ex.B-10:           -           `           :           Copy of Safe Custody Register maintained with the 2^nd                                                                    opposite party bank

Ex.B-11:           20.11.2011      :           Copy of the letter from the Inspector of Police, Sultan                                                                     Bazar to the 2^nd opposite party bank.

Ex.B-12:           22.10.2011      :           Copy of the reply given by the 2^nd opposite party bank to                                                                 the Inspector of Police, Sultan Bazar.

Ex.B-13:           20.11.2013      :           Copy of the reply sent by the 2^nd opposite party bank to                                                                   the legal notice got sent by the complainants

                                                                                    PRESIDENT               MEMBER

                                                                                                DATED : 30.06.2017.