Date of filing:-01/01/2018.

Date of Order:-12/09/2018.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)

B A R G A R H.

Consumer Complaint No. 01 of 2018.

1. Durga Prasad Nayak, S/o Chhanda Charan Nayak, aged about 44(forty four) years.

2. Sarita Nayak, W/o Durga Prasad Nayak, aged about 39(thirty nine) years.

3. Mihir Kumar Nayak, S/o Ram Chandra Nayak, aged about 51(fifty one) years.

   All R/o village- Narangpur, Po. Ruchida, Ps. Ambabhona, Dist. Bargarh.

   ..... ..... Complainants.

Vrs.

Branch Manager, State Bank of India, Ruchida Branch, P.o. Ruchida, Ps. Ambabhona, Dist-Bargarh. ..... ..... ..... .......Opposite Party.

Counsel for the Parties:-

For the Complainant :- Sri R.K.Satpathy, Advocate with other Advocates.

For the Opposite Party:- Sri B.K.Mahapatra, Advocate.

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).

Dt.12/09/2018. -: J U D G E M E N T:-

Presented by Sri Krishna Prasad Mishra, President:-

Brief Facts of the case;-

The case has been filed by the Complainants in pursuance to the provision of the Consumer Protection Act 1986, pertaining to the allegation of deficiencies of service on the part of the Opposite Party as hereunder, that the Complainants have incurred crop loan from the Opposite Party by mortgaging gold ornaments in different dates as enumerated below against their name, as have claimed the cause of action of filing the case occurred in one date so have filed the case jointly with their respective mortgaged amounts of Gold, the amounts of Loan obtained and the Claim consequent upon the cause of action .

The case of the Complainants are that on being granted with the receipt of the gold from the Opposite Party kept the same in his mortgage and granted the aforesaid loans to the respective persons and according to the terms and condition the Complainants were repaying their Loan amount with interest from time to time but in the mean time they could know that dacoity has been committed in the Opposite Party Bank on Dt. 05.08.2016 and all the gold ornaments along with some others have been looted, so being terrified the Complainants demanded the refund of their gold and were also ready to repay their dues against their respective loan amounts but the Opposite Party did not take any steps as such they reported the matter to their higher authority i.e. the Regional Manager of the Opposite Party but to no result but subsequently the Opposite Party deposited some insurance amount with respect to the loan amount of the Complainants @ 75 %(seventy five percent) in their respective account as a result of which accounts of some of the Complainants have been closed but the further case of the Complainants is that they are entitled to the real worth of their gold mortgaged with the Opposite Party, not the said 75 %(seventy five percent) worth of their gold with making charges hence claimed before them but the Opposite Party is avoiding to repay the same as such claimed the Opposite Party to be deficient with their acts and are liable to pay their gold ornaments with making charges and compensation for their mental and physical harassment and litigation expenses after deducting the said 75%(seventy five percent) and after adjusting the same in their respective loan account.

But the Opposite Party has slept over the claim of the Complainants hence have knocked the door of the Forum with a claim as (i) The actual value of the gold deposited with the bank with making charges as per the present market price after adjusting the same with their respective accounts (ii) The compensation towards their mental and physical harassment and litigation expenses with an interest @ 18 % (eighteen percent) per annum from the date of dacoity and in it’s support have filed the xerox copies of following documents:-

1. Account Statement in A/c No.33822367085.

2. Account Statement in A/c No.35627934611.

3. Gold receipt slip dated 06/05/2014.

4. Gold receipt slip dated 10/03/2016

5. Statement of regarding dacoity and loss of gold of Complainant No.1.

6. Statement of regarding dacoity and loss of gold of Complainant No.2.

7. Copy of complaint before regional head of OP.

8. Account statement in A/c No. 34179878728.

9. Gold receipt dated 23/01/2015.

    

Having gone through the Complaint and the materials available in the record and on hearing the counsel of the Complainants the case was admitted and notice was served on the Opposite Party and in response it appeared through it’s Advocate and filed their written version with different denial pleas amongst others. It has made averments that since the case involves several question of accounts and determination of rights is not maintainable in the present Forum, further it has claimed in it’s version the loan and the repayments of the same seemed to be ambiguous, it has however admitted the facts of dacoity being committed in it’s branch and denied to be deficient in rendering service and denied the pleas of the Complainants to have reported the matter to their higher authorities and to the local administration with regard to settlement of their grievance, further more it has denied to have suppressed the matter with regard to the claim of the Complainants and that it has insured the materials in the insurance company and after getting the insured amount have deposited 75% (seventy five percent) in the respective accounts of the Complainants and have closed some accounts too. In furtherance to its averment it has denied the claim of the Complainants as the calculations made by them are basing upon imaginary amount and as the case of the dacoity is not within the control of the authority of the bank the same cannot be termed as deficiencies of service and as such is not an actionable claim against them as it has taken all required measure to safeguard the pledged gold of the Complainants further it has disputed the amount of claim of the Complainants with regard to the weight and it’s value as baseless in as much as has claimed that the value of the gold were determined by the goldsmith of the bank and the same has been embodied in the agreement while the loan transaction was executed between both the parties i.e. the Complainants and the Opposite Party and as per the same the value of the gold was determined by the net weight but not the gross weight of the same as per the regular practice of the banks and also banking law.

And also it has categorically denied to be deficient in protecting the properties of the Complainants by keeping sufficient measures but in spite of his best effort in the broad day light the dacoity has been committed and the matter was though complained before the Police no clue could be traced out which is beyond it’s control hence the sum and substance of the version of the Opposite Party is a total evasive one so far it’s responsibility towards the Complainants is concerned hence denied it’s liability in making good of the loss of the properties of the customer as per their claims but has agreed in settling the same in a reasonable way keeping the terms and condition of the agreements and the principle of natural justice. And in support of his said claim has relied on a voluminous documents such as follows:-

1. Xerox copy of delivery letter of bank, in respect of pledged Gold in bank’s standard form (Three in Number signed by Complainant No.1, 2 & 3).

2. Statement of Account loan account of Complainant No.1, 2 and 3(three in numbers).

3. Annexure prepared by the OP/Bank as part of it’s version referring details of the Gold Loan transaction of Complainant/borrower with Opposite Party like (1) Sl. No. (2) Name of the Borrower, (3)Loan Account No, (4) Gross weight, (5) Net weight (6) Amount claimed by the Complainant, (7) Insurance Amount Credited to the account of the Complainant, (8) Amount of Loan sanctioned, (9) Present outstanding in the Loan account of borrower, (10) Rate assessed by Complainant ( gross weight ), (11) Rate assessed by the O.P/Bank, (12) Total amount claimed for the loss of gold by the Complainant plus making charges, (13) Amount of probable loss in terms of gold Net weight @ Rs.2,797/-(Rupees two thousand seven hundred ninety seven)only.

Having gone through the entire materials available in the record we feel it necessary to adjudicate the case on the following issues.

1. Whether the case is maintainable in the Forum and whether the Opposite Party has committed deficiencies of service towards the Complainant ?

2. Whether the Complainants are entitled to the relief sought for by them ?

While dealing with the point as to whether the Opposite Party is deficient in rendering service, with utmost care delving deep in to the materials available in the record and on scrutinizing the oral submission and written notes of arguments placed by the counsels of both the parties it reveals that the cause of action of filing the same is a genuine one in as much as the case of robbery in the Branch of the Opposite Party Bank is an admitted facts and consequent upon which the Gold ornaments in the form of ornaments pledged by the Complainants have been looted is also an admitted fact, it has come to our notice from the materials available in the record that the same has been committed in the broad day light from where it can be safely deducted that there was absence of sufficient security measures taken by the Opposite Party in safeguarding the public properties entrusted with them with much confidence upon him that their properties would be kept with utmost care, but the total episode reveals the negligence of the Opposite Party, which is a bounden duty of his concern furthermore the Opposite Party himself has admitted in it’s version and also in it’s written notes of argument filed by their counsel on their behalf that they are ready to pay the value of the Gold ornaments of the Complainant with a reasonable rate as per their calculation but since there is ambiguity in the calculation they have not yet paid, but in this regard it is found from the materials available that failing with their demand for making payments by the Opposite Party they have agitated the matter before the higher authority of the Opposite Party and also before the District Collector but in spite of that also the matter is not yet settled which clearly speaks the deficiencies in rendering service on it’s part to the Complainants.

Secondly with regards to the question of refund to the respective Complainants accounts @ 75 % (seventy five percent) of their loan amount is not a fair way of the transaction of the Opposite Party because the Complainants have pledged their ornaments with him with much confidence that their properties are at safe custody of the Opposite Party to which they can realize any time after their loan being repaid by them, accordingly when they could know about the incident of robbery in the bank they have all offered the Opposite Party to repay their outstanding dues against each of them if any, and demanded their gold ornaments which is emotionally attached with them, to refund. But from the activities of the Opposite Party it clearly reveals from the complaint and it is also seen from the materials available in the record that the Opposite Party has failed to comply with their demand and has deposited the indemnified insurance amounts @ 75 %(seventy five percent) only which has been realized from the Insurance Company, but there he could have paid the rest amount of the 25%(twenty five percent) after adjusting the dues on each of the Complainants with respect to their individual Loan account but has not done so, as it reveals from the record, which is an ambiguous attitude on their part, because it is mandatory principle of the Banking financial institution to refund the pledged items of the loneee in entirety on their repayments, but in the instant case in hand the gold ornaments have been found to have been looted from the possession of the Opposite Party. Now it is the duty of the Opposite Party to refund the actual value of the Gold mortgaged by each of the Complainant @ Rs.2810/-(Rupees two thousand eight hundred ten)only per grams the prevailing market price of the gold with the prevailing market price with regard to the making charge of the same as per the list submitted by them at the time of the sanction of the said loan, but in this regard the Advocate for the Opposite Party has submitted by way of his arguments that the same gold ornaments were pledged by the Complainants with them on the basis of the net weight of the each items of the same having being scrutinized by their departmental Gold smith and to which the Complainants have agreed too, but to our notice has not been paid yet in as much as had it been a simple case of refund of the same ornaments as has been pledged by each of them then there would not have any question to that effect of making charges but because in this case the pledged items are not in existence, the same has to be determined on the basis of the list as has been filed by the parties in it’s net weight @ 22(twenty two) carate in the prevailing price per weight of each items as on date of the said dacoity with it’s individual making charges prevailing at the relevant time and as such should have been refunded to the individual Complainant as per their pledging amount of gold ornaments. In terms of the net weight and making charges after adjusting the said insurance amount credited to each Loan account of the respective Complainant, but here the Opposite Party has not done so yet which proves to be a case of deficiencies of service coupled with unfair trade practice on it’s part and hence our opinion is expressed in favor of the Complainants.

And with regard to the question of the claim of the Opposite Party that the case is not maintainable in the Forum, and has referred to the provision U/s 12 of the Act for seeking permission for filing the case jointly to which they have not complied with as such are not maintainable and in support of such pleas has relied on a decision on a reported decision of Chhattisgarh State Forum to that effect we are of the view that it is surprising to the Forum that the learned counsel has submitted the same in his written notes of arguments stating therein that from verification of the record of the Forum he could know that no petition to that effect has been filed so without seeking permission from the Forum the case has been filed jointly. In this regard, firstly the same point cannot be raised at this stage because the same plea was not taken in it’s version secondly we are very much surprised with his attitude as he has never sought for the permission from the Forum to verify the record, however to this effect we want to clarify that at the time of hearing on admission of the case on hearing the learned counsel for the Complainant and having gone through the entire materials available in the record by then we were of the consensus view that the same is a fit case as per the provision of the Act and taking the nature and gravity of the case in to our consideration the case was admitted and in our view merely by not filing a petition or non-mentioning of any provision does not debar any consumer in filing the case and as there is no ambiguity in the point concerned and the decision cited by the learned counsel is in a different footing is not applicable to the present case furthermore with regard to the averments made by the Opposite Party stating therein that the case should have been filed in the Civil Court in stead of the present Forum in this regard to our notice it has been admitted by the Opposite Party in it’ version that the Complainants are the consumer of their institution and as per the provision of the Act U/s 3, the Consumer Protection Act 1986 is an addition to any other law for the time being in force but not in derogation of the same’’ furthermore the aims and objective of the enactment of the Act is to protect the interest of the consumers in an early manner, so the Complainants have relied on the purpose of the Act and have filed their case in the Forum, and at the same time as it is admittedly found that 75% (seventy five percent) of the value of the loan amount has already been paid by the Opposite Party now it has got no scope to agitate any other pleas as per the prevailing provision of Law of estoppels to defend to pay the amount of the pledged items of the said gold and as the case is a simple case of settlement of accounts between the parties and the declaration of right as has mentioned by the Opposite Party in it’s version not at all a point here for consideration since the same has not been disputed by the Opposite Party anywhere at any point of time hence in view of the above facts and circumstances of the case our opinion is expressed in favor of the Complainants and we are of the view that the case is a fit case under the provision of Consumer Protection Act 1986 and is quite maintainable in the present Forum.

Secondly while dealing with question whether the Complainants are entitled to their claim, as we have already discussed the entire facts and Law with regard to the case in hand in our foregoing paragraphs in details and have opined in favor of the Complainants now it is obvious upon us to express our view in favor of the Complainants that they are entitled to the value of their individual pledged gold items @ Rs.2,810/-(Rupees two thousand eight hundred ten)only per grams along with making charges @ Rs.130/-(Rupees one hundred thirty)only per grams, hence our order follows.

O R D E R.

Hence in view of the above facts and circumstances the Opposite Party is directed to refund the excess amount of 25%(Rupees twenty five percent) the value of the Gold as pledged by the individual Complainant with their making charges of the total amounts of gold @ Rs. 2810/-(Rupees two thousand eight hundred ten)only per grams and Rs.130/-(Rupees one hundred thirty)only per grams in lieu of the making charges prevailing rate of gold and making charges at the relevant time of the said dacoity the individual Complainant after adjusting their loan amount in their respective account as on date with an interest @ 9%(nine percent) per annum from the date of dacoity i.e on Dt.05/08/2016 till date of this Order and further directed to pay an amount of Rs.4,000/-(Rupees four thousand)only towards the mental and physical harassment caused to them individually and Rs. 1,000/-(Rupees one thousand)only towards litigation expenses respectively within thirty days from the date of pronouncement of the order as per the following list against their name, in default of which the total amount would carry an interest to 12 % (twelve percent) per annum till actual realization of the same.

Accordingly the order is pronounced in the open forum, in the result the Complaint is allowed against the Opposite Party, and the same is disposed off to-day i.e. on Dt.12.09.2018

Typed to my dictation

and corrected by me.

   ( Sri Krishna Prasad Mishra)

                      P r e s i d e n t.

                                                                I agree,

                                       ( Ajanta Subhadarsinee)

                                                   M e m b e r (W)