PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it did not take care of the locker, given to the Complainants.
The facts of this case, as stated by the Complainants, are that, the Opposite Party has provided a safe deposit locker No.1367 to the Complainants since April 2000. On 04/05/05 the Complainant No.2 went to operate the above said locker after signing the access register alongwith the master key operator Mr. Vijay Khamkar who used the key first asked the Complainant No.2 to open the locker. Complainant No.2 tried to open the lock but he could not open it. At this point of time, the operator Mr. Vijay pointed out to the Complainant No.2 that his key was not moving freely in the lock. Then it was observed that the key was broken.
2) Then Complainant No.2 made on application to Opposite Party on the same day and requested it to arrange to open to locker and issue a new key to him. Opposite Party contacted the manufacturer of the locker i.e. Godrej Co. and asked them to break open the locker. Arrangement to break open the locker was made on 10/05/05 at 12.00 p.m. Opposite Party advised the Complainants to remain present at the said time and date. Accordingly, on 10/05/05 the Complainants (both) signed the access register kept in the bank and went to the locker. At this time one person from Godrej Co. was present in the locker room. When he tried to open the locker, he found that the locker was already open. Then Complainants checked the belongings kept in the locker but they found that the Gold and Silver Jewellery (225 gms. Gold and 200 gms Silver), cash of Rs.15,000/-) was missing from the locker. Only LIC Policy and one silver empty box was lying in the locker.
3) The person from Godrej Co. issued a certificate to the Opposite Party Manager, to the effect that the locker was found open. The Complainant’s requested the Opposite Party to call the police but the manager refused. Then Complainants rushed to Agripada Police Station and lodged his FIR. He also wrote a letter to Opposite Party and placed on record the above said whole incident and requested to initiate enquiry in the behalf. The Complainant’s have further stated that policy drew a panchanama of the spot on 01/09/05.
4) The Complainants further submitted that on the last occasion (29/04/05) all valuables and documents were found intact in the locker and Complainant No.1 had closed the locker properly. After the above said incident, Complainants issued notice to the Opposite Party on 20/02/06. Opposite Party replied to this notice vide its letter dtd.07/03/06.
5) Complainants have further averred that, the locker could not be operated without the key of the Opposite Party as it always remained with the Opposite Party. It is the Opposite Party’s responsibility to look after the safety of the locker and contents of the locker but, Opposite Party failed to do the same causing a loss of Rs.1,86,500/- to the Complainants. This loss caused mental agony and anxiety to the Complainants. The Complainant has also averred that the theft case is pending in the Agripada Police Station.
6) Finally the Complainants have prayed for the reliefs that, the Opposite Party be directed to pay Rs.1,86,500/- for the loss of jewelleries and cash with interest thereon @ 18% p.a. from 10/05/05 till realization. Compensation of Rs.3 Lacs for mental agony and anxiety caused to the Complainants.
7) Complainants have attached the xerox copies of the following documents alongwith the complaint
a) FIR dtd.10/05/05.
b) Letter dtd.10/05/05 to Opposite Party.
c) Letter dtd.16/05/05 of Opposite Party.
d) Letter dtd.01/07/05 of Opposite Party.
e) Panchanama dtd.01/09/05.
f) Notice dtd.20/02/06 to Opposite Party.
g) Reply of Opposite Party dtd.07/03/06.
h) Schedule of ornaments dtd. Nil.
8) Complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared through its Ld.Advocate and filed its written statement wherein the allegations mentioned in the complaint regarding deficiency in service were denied and it is stated that there is no cause of action against the Opposite Party. Allegations are made with intention to make wrongful gain. Grievances are imaginary and unrealistic.
The Opposite Party has stated that on 04/05/05 the officer of the Opposite Party applied the bank’s master key to the locker and left the place and then the Complainant No.2 was to apply its key to open the locker. As per the procedure the bank officer was not supposed to stand near the locker, once he had applied his key to the locker. When Complainant No.2 could not open the locker, he requested the Opposite Party to break open the locker and issue a new key to him. On receipt of this written request the officer of the Opposite Party Mr. Nannaware contacted the Godrej Co. and took an appointment for breaking open the locker on 10/05/05 at 12.00 p.m. and requested the Complainants to remain present on the said date and time.
9) The Opposite Party further submitted that on 10/05/05 the Complainant went to the locker in presence of the Godrej Co. personnel. It was pointed out by the Opposite Party that the locker was not open. It was denied by the Opposite Party that the Godrej Co. technician who issued a certificate stating that the locker was already open. The Opposite Party further stated that the Complainant has leveled false & baseless allegations against the Opposite Party. As per the contract between the Complainants and Opposite Party, Opposite Party is not concerned with the articles kept in the locker by the Complainants. Therefore, Opposite Party is not responsible for any items allegedly kept and/or removed by the Complainants in the locker. It is the sole responsibility of the Customer for the contents of the locker.
10) Opposite Party has denied that they refused to call the police. Opposite Party further submitted that it is not possible to open the locker solely with the master key with the Opposite Party without the help of key with the customer.
11) Opposite Party has denied that the ornaments and cash collectively valued at Rs.1,86,500/- were stolen from the bank locker and finally prayed that the complaint be dismissed with cost.
12) The Opposite Party produced the xerox copies of the following documents in support of its say.
a) State deposit vault memorandum dtd.26/04/2000.
b) Specimen Signature Card.
c) Complainants application for change of address.
d) Attendance of the Complainant.
e) Letter dtd.04/05/05 of the Complainant.
f) Report of Godrej Boyce Mfg. Co. Ltd. dtd.10/05/05.
g) Statement of S.B. Account.
h) Letter dtd.18/05/05 of K.B. Shetty, Security Officer.
13) Complainant No.2 then filed his affidavit and again a list of documents, both the Complainants filed their written argument. Opposite Party also filed its written argument. Both the parties reiterated the facts mentioned in their respective complaint and written statement.
14) We heard the Ld.Advocates for both the parties and perused all the papers submitted by them and our findings are as follows -
The Complainant Nos.1 & 2 have availed the services of the locker of the Opposite Party. It is the contention of the Complainants that on 29/04/2005 Complainant No.1 operated the locker and kept some articles and removed some articles, as per the say of the Complainants only. She has locked the locker on 29/04/05 properly. On 04/05/05 Complainant No.2 went to operate the locker. As per procedure, the bank personnel first apply his master key to the locker and then the customer opens the locker with his key. In this case also the bank official Mr. Vijay Khamkar applied his key. Then Complainant No.2 applied his key but the locker could not be opened by the Complainant No.2. His lower portion of the key was found broken. So he requested in writing to the Opposite Party that the key has been broken and an arrangement be made to open the said locker and a new key be issued to him. From this incident it is seen that the key in possession of the Complainant No.2 was broken, due to which the locker could not be opened by the Complainant No.2.
15) The main contrast between the stands taken by both the parties is that, as per the Complainant’s say, the locker was already open on 10/05/05 as communicated by Godrej Company employee and as per his certificate while it is vehemently denied by the Opposite Party. Taking into consideration the circumstance mentioned above that the locker could not be opened on 04/05/05. It is clear that the locker was opened (handled) between 04/05/05 and 10/05/05 i.e. while it was in the safe custody of the Opposite Party. The contention of Opposite Party that the locker was not open on 10/05/05 when the Godrej technician and Complainant went to open the locker, cannot be accepted in light of the certificate given by the Godrej technician on 10/05/05. Even on 04/05/05 the Complainant has informed the Opposite Party in writing that the locker could not be opened by him. On 10/05/05 he had lodged the FIR stating that his key was broken and the locker could not be opened by him i.e. the locker was locked and not unlocked. This fact was also communicated to the Opposite Party on the very day i.e. on 10/05/05 in writing. Thus, it is clear from the above facts that the locker which was in the bank’s safe custody was opened between the period from 04/05/05 to 10/05/05. Therefore, certainly it is the contractual obligation of the Opposite Party to see that the locker provided to its customer is intact. In this case the Opposite Party has failed to comply with the contractual obligation and the locker was found unlocked while it was in the safe custody of the Opposite Party. Therefore, in our considered view that there is a deficiency in the service on the part of Opposite Party as it did not take care and guar the locker of the Complainant.
16) It is alleged by the Complainant that on 10/05/05 when he checked the contents of the locker he found his gold, silver jewellery and cash collectively valued at Rs.1,86,500/- was not there in the locker. This allegation of the Complainant is only a bare averment without any cognate evidence. It cannot be concluded in absence of any supportive evidence that the alleged jewellery and cash was really kept in the locker or otherwise. The Complainant has lodged FIR with the police, but there is nothing on record to establish that the allegation is substantiated with a independent evidence.
17) In view of the above observations, and in absence of the evidence in respect of the valuables kept in the locker before 10/05/05, we cannot approve the 1st prayer of the Complainant i.e. the payment of Rs.1,86,500/- with interest @ 18% p.a. However, taking into consideration the whole incident, occurred between 04/05/05 and 10/05/05 we found that thee is a deficiency in service on the part of the Opposite Party, as they did not take care of the locker provided to the Complainants. This incident caused mental agony to the Complainant for which we think it just and proper to award the compensation of Rs.25,000/-. Hence, the order -
O R D E R
i. Complaint No.231/2006 is partly allowed.
ii The Opposite Party is directed to pay the compensation of Rs.25,000/- (Rs.Twenty Five Thousand Only) to the
Complainant for mental Agony and harassment caused to the Complainant.
iii.Opposite Party is directed to pay Rs.3,000/- (Rs. Three Thousand Only) to the Complainant towards the cost of
this complaint.
iv.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties.
