PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they caused financial loss to the Complainant as they allowed the locker to be opened in absence of the Complainant.
2) The facts of this complaint are as follows –
The Opposite Party No.2 is the Bank and Complainant had taken a Safe Deposit Locker No.1463 on rental basis from Opposite Party No.2 since 1994 in joint name with Joseph M. D’Souza. The locker was to be operated by either or survivor.
3) On 18/03/2006 the Complainant visited the Bank to open the said locker. The locker did not open when she applied the key. Thereafter she reported the matter to the bank officials who checked the register, verified the key numbers and informed her that the locker was drilled open and a duplicate key has been issued to Mr.Joseph D’souza, the joint holder of the locker but she was not informed about the drilling and opening of the locker. She therefore, gave a written complaint to the Chief Manager of the Opposite Party in this respect on the very day i.e. on 18/03/2006 and also instructed them not to allow the locker to be operated by the duplicate key.
4) The Complainant further asserted that the Opposite Party informed her on 08/04/06 that Mr.Joseph D’souza, came to the bank on 08/11/2005 and gave letter informing that he lost the locker key and a duplicate key be issued to him. On his written request, Opposite Party No.2 carried drilling of the locker and opened the locker and issued new key to Mr.Joseph. The Opposite Party No.2 did not ask anything about the joint holder’s consent. The Chief Branch Manager - Mr.Khambate accepted that the concerned bank official was negligent as he failed to follow the procedure under these circumstances. The Complainant further averred that the Opposite Party No.2 has committed a breaches of the guidelines quoted in the Bank’s Manual.
5) The Complainant has further submitted that the Opposite Party No.2 did not answer her letters dtd.08/04/06, 31/08/06 and 14/12/06. She visited the bank for 30 times and asked about the status of her locker but the Opposite Party No.2 neglected to inform about the status of the locker.
6) The Complainant further stated that she also contacted the officials of Reserve Bank of India and obtained the copy of circular, issued by RBI on safe deposit lockers. She again wrote letters dtd.15/01/07 and 17/01/07 to the Opposite Party No.2 but invain. Again she wrote a letter dtd.05/02/07 to the Opposite Party No.2. On 17/02/07, the Complainant received the letter of the Opposite Party No.2 wherein the Opposite Party No.2 explained to the Complainant that they made arrangement to drill open her locker after following the procedure. Thereafter the duplicate key was issued to the joint holder. The locker was to be operated by either or survivor, etc. The Opposite Party was under impression that the representation of loss of the key was from the joint holders of the locker also. The Opposite Party also came to know from Mr.Joseph D’souza that he had taken out some of the ornaments from the locker (Value of worth Rs.1.50 Lacs) and purchased flat worth Rs.3.20 Lac and he was ready to compromise with the Complainant.
7) The Complainant also stated that she filed her application before the Banking Ombudsman on 11/09/07. However, the Ombudsman rejected the application as time barred.
8) Finally the Complainant has prayed as follows –
a) To call upon the Opposite Party to open the locker in the presence of the Complainant and handover her contents which
are mainly Gold jewellery,Silver articles and Cash, as per the list attached, (Ex.15 to the compliant).
b) To call upon the Opposite Party to collect, to compensate the Complainant in respect of the contents that have been
taken away by Mr.Joseph D’Souza as stated in Opposite Parties letter dtd.13/02/07 and/or to indemnify for the financial
loss of Rs.20 Lacs with interest thereon @ 18 % p.a.
c) To call upon the Opposite Party to indemnify her for the mental agony and hardships she underwent.
9) The above complaint was admitted and notices were served on the Opposite Parties. Opposite Parties appeared through their advocates but during the proceedings the Complainant deleted the name of Opposite Party Nos.1 & 3 from this complaint. The Complainant also prayed vide her application dtd.30/11/10 to drop prayer (a) stated above and only prayed for the suitable compensation for the deficiency in service on the part of Opposite Party No.2.
10) The Complainant attached xerox copies of the following documents in support of her complaint –
a) Letter dtd.18/03/06 addressed to Opposite Party No.2.
b) Bank Manual Instruction on “Loss of Key by Renter”.
c) Letter of the Complainant dtd.08/04/06 to the Opposite Party No.2.
d) Letter of the Complainant dtd.31/08/06 to the Opposite Party No.2.
e) Letter of the Complainant dtd.14/12/06 to the Opposite Party No.2
f) Copy of R.B.I.’s circular on Safe Deposit Lockers.
g) Letter of the Complainant dtd.15/01/07 to the Opposite Party No.2.
h) Letter of the Complainant dtd.17/01/07 to the Opposite Party No.2.
i) Letter of the Complainant dtd.05/02/07 to the Opposite Party.
j) Letter of the Opposite Party dtd.13/02/07 to the Complainant.
k) Letter of the Complainant dtd.12/09/07 to the Ombudsman.
l) Notice of Ombudsman dtd.26/05/08.
m) Letter of the Complainant dtd.10/06/08 to the Ombudsman.
n) Order of the Ombudsman dtd.16/06/08.
o) List of the jewellery in safe deposit locker.
11) The Complainant also filed delay condonation application alongwith the complaint and in that application the Complainant has stated that she had requested the Opposite Parties through her several letters to redress her grievances but the Opposite Party neglected her complaints and only replied by letter dtd.13/02/07 and rejected her complaint. She has averred that the cause of action is continuous as the Opposite Party has not complied with the request of the Complainant. It is also averred by the Complainant that because of her family problems, she could not file the complaint within the period, therefore, the delay of 184 days be condoned.
12) Opposite Party Bank filed reply to the delay condonation application of the Complainant and stated that the Complainant had not given any valid reason for the condonation of the delay of 184 days which was caused in filing the complaint. Therefore, the complaint be dismissed as it is time barred complaint.
13) Opposite Party No.3 also filed the reply to the delay condonation application. He took strong objection to the delay condonation application stating that the reasons given by the Complainant are not satisfactory at all. Actually, he was driven away from his residence by the Complainant and her relatives. Secondly the child’s health was also goods when the cause of action arose. Therefore, the Complainant’s averment that she could not file the compliant because of ill health of the child is not correct. He finally prayed to dismiss the complaint as it is time barred.
14) The Opposite Party Nos.1 & 2 also filed their written statement jointly, wherein they firstly admitted that the Complainant and her husband had availed the locker facility of the Opposite Party No.2. However, they denied the deficiency in service provided by them.
15) They also repeated that the complaint is filed beyond the period of limitation and as such it is time barred.
16) The Opposite Parties further submitted that the Complainant and her husband i.e. Opposite Party No.3 were the joint holder of the locker No.1463 in their bank since 1994 and were operating as either or survivor basis i.e. the locker can be operated by any of them. The contents of locker are only known to the locker holders. On 08/11/05 the husband of the Complainant i.e. Opposite Party No.3 Mr.Joseph D’Souza visited the Opposite Party No.2 Bank and represented in writing that he lost the key of the locker but he wanted to operate the locker. He also requested to issue duplicate key. Accordingly the bank official accepted the representation of the husband of the Complainant believing that it is representation of both. Locker holders & issued duplicate key to the husband of the Complainant i.e. Opposite Party No.3 on 16/11/05. The locker was drilled open in presence of the Opposite Party No.3 Mr.Joseph D’Souza who was authorized to operate the locker. However, on 18/03/06 i.e. after a period, more than 4 months the Complainant by letter represented that she was in possession of the original key. She further requested not to allow the locker to be operated as there was dispute between the Complainant and her husband - Opposite Party No.3. The locker was not allowed to be operated by either of them.
17) The Opposite Parties further admitted that the Complainant addressed letters dtd.18/03/06, 18/04/06, 31/08/06, 14/12/06 and 15/01/07 to the Opposite Party Bank and requested to disclose the contents of the locker but since Opposite Parties do not deal with the contents in the locker, they did not accept her request of the Complainants and finally replied by letter dtd.13/02/07 clarifying the above facts. It was also informed to the Complainant that on enquiry it was revealed from Mr.Joseph D’Souza that he had taken out ornaments worth Rs.1.5 Lac and purchased a flat of Rs.3.20 Lacs and he was ready to compromise with the Complainant.
18) The Opposite Party also clarified that, the Complainant did not make any demand of valuable lost or lying in the locker nor make any claim against the Bank during the correspondence made with the Bank. Only on 11/09/07 when she complained to the Bank Ombudsman, she claimed 3.20 Lacs from the Bank and it was after thought complaint.
19) Opposite Parties further stated that the Complainant’s claim in the complaint that concerned locker (No.1463) contained 730 gms. of Gold, Silver Jewellery and cash was false claim made without any documentary evidence. She had not even mentioned the particulars of silver jewellery and the cash in the list annexed to the complaint. The Opposite Parties further asserted that the complaint is not supported by any documentary proof. The complaint is after thought and made with ulterior motives to get unlawful gain from the Opposite Party Bank. Opposite Parties finally prayed to dismiss the compliant.
20) The Opposite Party No.3 also submitted his written statement wherein he denied al the allegations in the compliant and stated that the dispute between the Complainant and Opposite Party No.3 is the matrimonial dispute and not the consumer dispute and hence, this Forum has not jurisdiction to entertain the same. He also stated that the complaint is barred by law of limitation.
21) The Opposite Party No.3 also contended that the Complainant has nowhere alleged any deficiency of service against Opposite Party No.3.
22) Opposite Party No.3 has admitted that he had submitted an application to Opposite Party No.2 as the key of the locker was lost and another new key was furnished to him after drill opening the locker. He further averred that he was entitled to open/operate the locker independently and also entitled to obtain the key since it was not with him. Finally the Opposite Party prayed to dismiss the complaint.
23) The Complainant filed affidavit of evidence in support of the complaint and written argument wherein she reiterated the facts mentioned in the complaint. Opposite Party Nos.1 & 2 filed the written argument, wherein they reiterated the facts mentioned in their written statement filed earlier. The Complainant also filed the copy of the extract of the guidelines mentioned in the manual of instructions of Opposite Party Nos.1 & 2 on the subject “Loss of Key by the Renter”. Copy of application of Joseph M. D’Souza addressed to the Opposite Party No.2 and endorsement on it by Opposite Party.
24) We heard the Ld.Advocates for both the parties and perused the documents produced by both the parties and our findings are as follows –
25) The Complainant has availed the services of the Opposite Party No.2 by hiring the safe deposit hault.(Locker No.1463) by paying the regular rent. Therefore, the Complainant is the consumer of Opposite Party No.2. On 18/03/06 the Complainant came to know that the locker had been drilled open in her absence by Opposite Party No.3 and officials of the Opposite Party No.2 on the representation by Opposite Party No.3 to Opposite Party No.2 that the original key had been lost when actually it was not lost on this information she immediately, on the very day, wrote a letter to Opposite Party No.2 informing Opposite Party No.2 that the original key of the said locker was with her and the bank had issued the duplicate key without verifying that the key was with the Complainant. She also informed the Opposite Party No.2 that they had issued the duplicate key wrongly. She also asked the Opposite Party No.2 to provide the procedure for issuing duplicate key and also asked the Bank the details of the operations of the accounts (Locker) from the date of issue of the duplicate key. Again vide letter dtd.08/04/06 she asked Opposite Party No.2 to provide the status of contents of her vault (Locker). She also asked the Opposite Party No.2 to ensure her access to her belongings kept in the vault. The Complainant reminded to the Opposite Party No.2 vide her letters dtd.31/08/06, 14/12/06, 15/01/07, 17/01/07 and 05/02/07. But Opposite Party No.2 did not respond to her letter till 13/02/07. Only on 13/02/07 the Opposite Party No.2 explained its position on the allegations made by the Complainant and rejected her complaint that the locker was wrongly drilled open by them.
26) The Complainant was earnestly striving to get the explanation from the Opposite Party No.2 as to how they drilled opened the locker and handed over the duplicate key to Opposite Party No.3 when the original one was already issued to her and was with her and was not actually lost. She was enduring to get access to her belongings kept in her locker but the Opposite Party No.2 explained their position only on 13/02/07. Cause of action is the bundle of Acts and transaction which gives rise to the right to the aggrieved party. In this case, the locker was drilled open on 08/11/05. The Complainant was the locker holder, but she was not informed about the same act. She came to know this fact on 18/03/06. Immediately on the very day she sought explanation about the wrongful drilling & opening the locker as the key was not lost but the Opposite Party No.2 did not give any explanation till 13/02/07. Till this day, the Complainant was striving hard to get the information regarding the procedure explaining the drill opening the locker. Therefore, the last transaction is the cause of action ended on 13/02/07. The instant complaint has been registered on 11/09/2008. Therefore, it has been registered within the stipulated period of limitation under the Consumer Protection Act, 1986.
27) The Opposite Party No.2 it self has submitted the extract of the bank manual on the point of key of the locker not found by the renters. The Complainant also submitted these guidelines which she received under the Right to Information Act. The guidelines are as follows –
“If the key reported lost is not found inspite of diligent search, the locker will have to be drilled open as there is no duplicate of the key supplied to the renter. To enable the Bank to arrange with the manufacturers to drill open the locker, all the renters should sign and send a letter to Bank (Form SDV 1470) together with the requisite amount for drilling charges and Bank charges, after which, the bank should proceed to call the mechanic and fix the appointment with him in consultation with the renters. If renters fail to attend the vault, at appointed time and manufacturers charge again to their mechanic to call at the bank, extra charge also should be recovered from the renters. The locker may be drilled open by the mechanic in the presence of the renters.”
28) Thus from the above guidelines it is clear that all the renters/Locker holders should be present at the time of drilling open the locker. The Bank should take precaution that all the locker holders to sign the written letter that the key is lost and then the bank will arrange to drill open the locker. This provision is made with a view to avoid any complication in case of any dispute between the locker holders if there is more than one locker holder. Even a prescribed form is stipulated i.e. Form No. SDV 1470 and the bank should obtain the signatures of all the renters before making arrangement for drilling open the locker. In this case the bank has miserably failed to take the above precautions and only on the request of a single renter on a plain paper the Opposite Party No.2 accepted the request of the single renter for drilling open the locker and issued a duplicate key to the single locker holder. This is against the above said guide line stipulated in their own manual. Therefore, Opposite Party No.2 bank is deficient in service by allowing to drill open the locker in presence of only one renter and issuing him the duplicate key when there were two locker holders, this deficient act of the Opposite Party No.2 Bank caused loss to the 2nd locker holder as the Complainant alleged that she had kept 173 gms. of gold ornament some silver ornaments and cash. However, there is no documentary proof to prove the exact jewellery kept by the Complainant. The Opposite Party No.2 in its written statement has specifically stated in para 7 that on enquiring with Mr.Joseph D’Souza (the other locker holder), it was stated that he had taken out ornaments worth Rs.1.50 Lacs. Therefore, it can be ascertained that the locker no.1463 contained at least ornaments worth Rs.1.50 Lacs and Mr.Joseph D’Souza took out the same for his benefit and Complainant sustained the loss of at least worth Rs.1.50 Lacs. It has also come on the record that the Complainant was the earning member of the family at the same time the written statement of the Opposite Party No.3, Mr.Joseph D’Souza does not disclose that he is a earning member of the said family and he had kept the ornaments in the locker. Therefore, it is concluded that due to the negligent act and deficiency in service by Opposite Party No.2 the Complainant sustained the loss of at least Rs.1.5 Lacs. Therefore, the Opposite Party No.2 is liable to compensate the Complainant for its deficiency in service to that extent. Therefore, we pass the following order -
O R D E R
i. Complaint No.177/2008 is partly allowed.
ii The Opposite Party No.2 is directed to pay Rs.1,50,000/-(Rs.One Lac Fifty Thousand Only) to the Complainant
with interest @ 9 % p.a. on this amount from 18/03/2006 till payment of the said amount.
iii Opposite Party No.2 is also directed to pay Rs.3,000/- (Rs.Three Thousand Only) to the Complainant towards the
cost of this complaint.
iv Names of Opposite Party Nos.1 & 2 are already deleted by the Complainant.
v Opposite Party No 2 is directed to comply with the above said order within 30 days from the date of receipt of
this order.
vi Certified copies of this order be furnished to the parties.
