Date of Filing:20.05.2005<br /> Date of Order:08.06.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 08TH DAY OF JUNE 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 600 OF 2005<br /> <br /> T. Hariharan<br /> S/o. S. Tulsiram<br /> R/at No. 290, 8th Cross<br /> 8th Main, Brindavan Extension<br /> Mysore 570 020 Complainant<br /> <br /> Vs<br /> <br /> HDFC Bank<br /> Airport Road<br /> Bangalore Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that the complainant has got locker facility in his name in opposite party bank vide account No. 1513. On 20.02.2005 complainant and his mother went to operate his locker. The opposite party informed that locker was found open by somebody and an inventory has been drawn towards same on 07.02.2004. Jewellaries and articles have been transferred to locker No. 940 on 07.02.2004 itself. Complainant asked the bank that how the locker was opened without the consent. The officials of the opposite party bank have drawn mahazar without intimating the complainant. Complainant has lodged a complaint before the police on 21.02.2005. Complainant informed the matter to his sister who is staying abroad and intimated the articles referred to in the mahazar. After scrutinizing it she told the complainant that number of articles are missing. The complainant has given list of missing articles from 1-16 in the complaint and he has also given list of silver articles from No. 1-4 in the complaint. Opposite party bank is custodian of articles till the depositor takes back same. Rental charges were debited to the complainant’s account. The locker was last operated on 04.11.2001 and mahazar was drawn on 07.02.2004. Bank has committed breach of trust. Opposite party is wholly responsible for gross negligence. The said act of negligence has put the complainant to great hardship and mental agony. Complainant sustained loss to the tune of Rs. 10,00,000/- and opposite party will be held responsible for the gross act of negligence. Therefore, the complainant prayed that opposite party may be directed to pay Rs. 10,00,000/- the value of the stolen items/ articles and pay damages for Rs. 5,00,000/-.<br /> 2. Notice issued to opposite party. Opposite party put in appearance through advocate and has filed defence version stating that complaint is not maintainable. It is further submitted that the question for determination whether the locker was left open by the complainant or the valuables have been stealthily removed from the locker or the actual value of the articles kept in the locker are complicated questions of fact and law requiring detailed examination of the witnesses and evidence on record. It is also submitted that as the complaint involves complicated questions of fact and law requiring detailed examination of the witnesses and evidence, it can only be satisfactorily determined in a civil suit in a competent civil court after adducing elaborate evidence on both sides. As such it would only be just and necessary that this complaint be dismissed forthwith without any further consideration. The opposite party admitted that complainant has availed locker facilities with account No. 1513. The locker facility has been hired in the joint names of complainant and his mother and sister. Complainant has failed to disclose the same. Complainant has failed to make Uma Tulasiram, Chamundee as party to the complaint. Opposite party humbly submits that the locker was found open on February 7, 2004 by its staff during routine check. On finding the locker open, the opposite party tried to communicate the same to the opposite party at the addresses/ phone numbers furnished to the opposite party. The addresses / phone numbers as furnished by the complainant was that of a residence at No. 3075, 11th main, 10th cross, HAL II Stage, Indiranagar, Bangalore 560038. On enquiries, the opposite party learnt that it was Indian Airlines Quarters and was informed that neither the complainant nor any of his family members were staying there anymore. The complainant had not left their forwarding address. Further, the opposite party with much difficulty could trace one of the complainant’s transactions to an address in Mysore. On enquiries at the said address in Mysore, it was found to be locked and the complainant could not be traced even there. The opposite party submits that left with no other option, the Regional Business Manager, - Karnataka and Kerala (Madhusudan Hegde) along with the Branch Manager (Mr. George Mathai), Sathya Priya (Authoriser) and Vidya Viswanathan (Locker Custodian) prepared an inventory of the contents of the locker. Subsequent to the preparation of the inventory, photographs of the contents were taken. The opposite party humbly seeks leave of this Hon’ble Court to produce the copies of the photographs at the appropriate time. The opposite party submits that with intent to protect the contents of the locker, the same were transferred to locker No. 940. The locker No. 940 was locked and to this day the contents of the locker No. 1513 are in safe custody in locker No. 940. The same has been intimated to the complainant. The complainant also has been furnished with the list of the inventory when he along with his mother Smt. Uma Tulsiram visited the Bank on February 20, 2005. The matter has brought to the jurisdictional police. The alleged list of missing articles by the complainant is false and complainant is put to strict proof. At the time of preparing inventory of the contents of locker a paper containing list of items hand written in Tamil and English was found. The said list has been kept along with the contents of the locker in Locker No. 940. Opposite party has taken adequate care with respect to the contents of the locker as any prudent banker would do. Question of negligence on the part of opposite party does not arise at all. Therefore, the opposite party has prayed to dismiss the complaint.<br /> 3. Affidavit evidence of Tulsiram and Smt. Uma Tulsiram are filed and affidavit evidence on behalf of the opposite party has filed.<br /> 4. Arguments are heard.<br /> 5. In the light of the arguments advanced the following point arises for consideration:<br /> Whether the matter requires to be determined satisfactorily in a civil suit by the competent civil court?<br /> 6. This is a second round of litigation. Complainant was heard and it was dismissed by order of forum dated 16.02.2006. The complainant had preferred an appeal before the Hon’ble State Commission. The appeal was allowed and matter remitted back to this forum to dispose off the matter afresh. The Hon’ble State Commission in the order had referred a decision in R.G. Srivastava Vs UCO Bank reported in 1995 NCDRC 66 and it was submitted loss could be ascertained by way of adducing the evidence in a regularly constituted suit and therefore, the complainant should be permitted to approach the Civil Court instead of approaching the Consumer Forum and it was observed by the Hon’ble State Commission that in order to ascertain the loss elaborate evidence is required to be produced. In the instant case State Commission has observed that it is not known whether the opposite parties have informed the complainant about the fact of unlock condition of the locker. If the opposite parties have not informed the fact that the locker was unlocked to the account holders necessarily it amounts to deficiency in service. So on that ground the matter was remitted back to this forum for reconsideration. After remand the opposite party bank had filed affidavit of George Mathai the then bank Manager of opposite party bank. He has stated in his affidavit that the locker No. 1513 was found open on 07.02.2004 during routine checkup and he went to the furnished address of the complainant which is No. 3075, 11th Main, 10th Cross, HAL II Stage, Indiranagar, Bangalore to communicate that locker was found open and he is stated in the affidavit that he found the house locked and further in the affidavit he has stated he along with Mr. Madhusudan Hegde, Regional Business Manager, Ms. Sathya Priya (Authorizer) and Ms. Vidya Vishwanathan (Locker Custodian) prepared an inventory of the articles and ornaments in the said locker and was signed by all of them and they even took photographs of each and every article in the locker. The bank has taken adequate measures to inform the complainant that locker was found open and further he has stated that all attempts of the bank to find and inform the complainant failed as the complainant had failed to furnish any forwarding address or change of address to the opposite party bank. Therefore, there was no deficiency of service on the part of the bank. The opposite party bank has produced copy of safety deposit locker application filled by the complainant. In that application the complainant has given address of Indiranagar, Bangalore as stated by the George Mathai. The complainant has not produced any record or document or any proof or evidence to show that they have informed the change of address to the bank after shifting their residence from Indiranagar. The complainant even not produced any document or proof to show that they were residing at Indiranagar address during the year 2004 when the locker was found unlocked. So under these circumstances no deficiency of service on the part of the opposite party can be established. However, it is unnecessary to discuss the matter in detail in this summary proceeding. The opposite party bank in the defence version at para 3 has taken the contention that the question for determination whether the locker was left open by the complainant or the valuables have been stealthily removed from the locker or the actual value of the articles kept in the locker are complicated questions of fact and law requiring detailed examination of witnesses and evidence on record and the present complaint involves complicated questions of fact and law requiring detailed examination of witnesses and evidence, it can only be satisfactorily determined in a civil suit in a competent civil court after adducing proper and elaborate evidence by both sides. Therefore, the opposite party has taken contention that matter requires to be decided in civil court in a properly constituted civil suit. Admittedly, the complainant has not produced any documents or proper proof or evidence before this forum to establish the value of the missing articles with identity of the missing articles. The complainant has not produced any documents to prove that the articles have been purchased by the complainant and they have been kept in the locker. The complainant has not produced any document or proof to establish that missing articles have been actually kept in the locker. Complainant has not produced affidavit evidence of his sister Smt. Chamundee to prove the identity of missing articles because the complainant has stated in the complaint that he informed the matter to his sister who is staying abroad at Dubai and intimated the articles referred to in the Mahazar and his sister has scrutinized the mahazar and told him the number of articles were missing. To prove this fact the complainant has not produced affidavit evidence of his sister. As per the case of the complainant proper person to identify the articles is his sister Chamundee. Without her evidence the case cannot be established or proved satisfactorily. Punjab State Consumer Disputes Redressal Commission in case quoted in 2006 (1) CPR 313 has held as under:<br /> “Question whether safe deposit locker in bank was properly locked by complainant hirer after operation or it was broken open subsequently by some one needs detailed examination of evidence and could not be determined in consumer complaint.”<br /> 7. The facts of the case are absolutely similar with the facts of the above referred case. Therefore, we are of the opinion that this case cannot be decided in a summary manner by this fora. The proper remedy for the complainant is to file a civil suit before the competent court and establish the case there. The opposite party bank has also no objection for deciding the matter by the civil court and opposite party bank has taken the same defence in the version. Therefore, taking into consideration all the facts and circumstances of the case the complainant shall be directed to approach civil court for the relief. The time spent in litigating the matter before the Consumer Fora can be excluded for the purpose of limitation. In the result I proceed to pass the following:<br /> ORDER<br /> 8. The Complaint is dismissed. The complainant will be at liberty to file a civil suit before the competent civil court for getting the relief. No order as to costs. <br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 08TH DAY OF JUNE 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />