Sri.Siddegowda, President 1. As the facts and the nature of the claim are similar, the above 3 Complaints have been clubbed by consent and disposed of by this common order. These complaints are filed under section 12 of Consumer Protection Act for a direction to the Opposite party to pay the value of the gold ornaments pledged with damages and interest. 2. The facts of the complaints are that, the Complainant in CC 125/08 availed jewelry loan of Rs.17,200/- from the Opposite party Bank by pledging golden article under LF No.139/35 and J.L.A/c No.7827 on 09-3-2007 and the total weight of the ornament is 49 grams and it was ancestral in nature and prepared 20 years back. Similarly, the Complainant in CC 126/08 availed jewelry loan of Rs.60,300/- by pledging piece of gold waist bracelet weighing gross weight 155 grams on 16.08.2007 under LF No.192/33 and JL account no.7880. The Complainant in CC 127/08 had availed jewelry loan of Rs.10,000/- on 06-04-2006 by pledging golden article totally weighing 65 grams under account no. JL 7697 and LF 8/35. When these Complainants approached the Opposite party for redeeming the gold articles by clearing the loan, the Opposite party reported that the jewels pledged have been stolen from the bank along with other jewels and not in a position to return the pledged gold jewels and in this regard, the Opposite party has filed a Complaint to the Police Station and they are in correspondence with the insurance company and the claim is still pending and they are prepared to give the value of the golden articles after deducting the loan and interest only on the net amount as valued by their valuators as on the date of pledging of the jewels. The Complainants received the reply. Due to the glaring lapses and negligence of the Opposite party to safe guard the pledged articles, theft has occurred and no night watchman was appointed to guard the bank. Due to the negligence of the Opposite party, it has no right to demand the refund of the loan along with the interest and further to direct the Complainants to execute letter of undertaking restricting their right and Opposite party have no right to restrict the weight of the golden ornaments as net weight at the rate of Rs.880/- per gram instead of the actual market value. The Opposite party is bound to pay actual market value of the gold, which is on the higher side i.e. Rs.1,350/- per gram on the total gross weight. The Complainants have lost precious, traditional golden ornaments and the attachment and great affinity and feelings of the Complainants cannot be compensated in terms of money and opposite party is liable to pay damages. On these grounds, the Complainants have sought for value of the jewels at the rate of 1,350/- per gram on the gross weight of the jewels i.e. Rs.66,150/-, Rs.2,09,250/- and Rs.80,000/- respectively, along with the damages of Rs.50,000/- and interest. 3. The Opposite party has filed version in all the Complaints admitting the loan borrowed by the Complainants by pledging the jewels, contending that the Complainants are bound by the terms and conditions of loan. Unfortunately a huge quantity of gold ornaments pledged by various customers were stolen on 13.11.2007 and the Complaint has been lodged to police station in Cr.No.166/2007 and investigation is still pending, the same has been published in all daily Newspapers and broadcasted in television also. In the larger interest of the gold loan borrowers, it was decided in the Board of Meeting held on 22.12.2007 to settle the claims of the borrowers immediately on the basis of value assessed by the appraiser of the bank at the time of pledging the jewels which is also basis for settlement of insurance claim by the insurance company and also as agreed by the borrower, after appropriating the loan dues till the date of theft. The Complaint is premature and question of return of gold pledged ornaments would arise only after discharging the loan amount with interest, the Complainant has not discharged the loan amount with interest. Since, the Opposite party is ready to settle the claim the question of deficiency of service does not arise at all. The allegation that the Opposite party has not taken safety measures is false and there is strong jewel safe installed in the bank. On these grounds, the Opposite party has sought for dismissal of the Complaints. 4. During trail, the Complainants have been examined and Opposite party is also examined. 5. We have heard the matters together. 6. Now the points that arise for our considerations are:- 1) Whether the Opposite party has committed deficiency of service? 2) Whether the Complainants are entitled to value of the jewels at the rate of Rs.1,350/- per gram on gross weight? 3) Whether the Complainants are entitled to damages? 4) What order? 7. Our findings and reasons are as here under:- 8. POINTS No.1 to 4:- The undisputed facts are that, the complainants have borrowed loan from the Opposite party bank by pledging the jewels by submitting loan application produced by the Opposite party. The type of agreement is as per Ex.R.1 and it contains the terms and conditions also. The gross weight of the each golden items and net weight and the value of the each item at the rate of Rs.850/- per gram is mentioned as valued by the appraiser of the Opposite party bank on the net weight. This is also admitted fact that theft took place on the night of 13.11.2007 in the bank and all the pledged jewels were stolen and the Complaint was lodged as per Ex.R.5 and the investigation is going on and stolen jewels are not traced. Thereafter, the Opposite party Bank, Head Office in the board meeting on 22.12.2007 has decided to settle the claims of the borrowers on the basis of value assessed by the appraiser of the bank at the time of pledging jewels. It is also admitted fact that on 03.3.2008 & 8-4-2008 the Complainants in CC.125/08 and CC.126/08 served with reply when they went to settle the loan amount to get back the jewels. 9. But the allegation of the Complainants that on only on 03-3.2008 & 8-4-2008, the Complainants came to know about the theft of jewels from the bank on information given by the Opposite party cannot be accepted, because immediately after the theft on 13.11.2007 in all the Newspapers and local T.V. media, it was published. 10. The allegation is that, Opposite party has not taken proper care and due to glaring lapses and negligence of the Opposite party without appointing a night watchman, the theft has taken place and they are not bound by the resolution of the Opposite party bank and the Opposite party is bound to return the jewels or in the alternative to pay the value of the golden jewels at the present market value as on the date of filing of this Complaint i.e. rate of Rs.1,350/- per gram on gross weight of the jewels, but the contention of the Opposite party is that all the pledged jewels were kept in strong jewel safe and insured as per the insurance certificate, the jewels of the Complainants were insured on the value fixed by the appraiser of the bank and on that basis they would settle the claim of the jewels after deducting the loan. It is the further contention of the Opposite party that it has taken all safety measures in the bank even since 1952 and there is strong jewel safe installed in the bank. 11. Any how, theft has taken place and the police have not traced the jewels so far and on demands by the customers, the Opposite party bank by its board meeting has decided to pay the value of the golden ornaments at net weight fixed by the appraiser of the bank after deducting the loan amount due. But, according to the Complainants due to the deficiency in service by the Opposite party, the Opposite party is not entitled to deduct the loan amount and further the Opposite party is liable to pay the value of the golden ornaments on the gross weight and at present market value i.e. Rs.1,350/- per gram prevailing on the date of Complaint. 12. Admittedly all the 3 Complainants have filed loan application and borrowed the loan and at that time the description of the jewel with gross weight, net weight, and the rate per gram and the value of the golden articles valued by the appraiser of the bank are mentioned and on that basis loan has been sanctioned and this loan application contains the terms and conditions. Further, the Opposite party has produced the insurance certificate as per Ex.R.4 with terms and conditions of the insurance company. According to the Opposite party, already claim of 52 borrowers has been settled accepting the value fixed by the appraiser on the net weight and payment of balance amount was made after deduction of the loan amount and Ex.R.8 is the list of the 52 borrowers. In the insurance policy, at valuation clause it is stated that value for the purpose of settlement of any claim in respect of jewelry ornaments under this policy shall be as per the 100% value as recorded in the register of the Bank at the time of pledging jewellery or ornaments. So, the insurance coverage is as per Ex.R.4 and all the jewels were insured on 01.04.2007 for Rs.50,00,000/-, as per the document totally 6 Kg. 48 grams jewels were stolen. 13. It is established that the Opposite party is not in a position to return the pledged jewels and therefore the Complainants have sought for the value of the golden ornaments at the present market value on gross weight. Naturally, the Opposite party will be entitled to the insured amount from the insurance company and therefore within that amount they have to settle the claims of the jewel loan borrowers. As per the insurance company itself, the insurance will be on the 100% value of the gold articles stolen as recorded in the loan register of the Bank. 14. The Complainants cannot dispute the value of golden items pledged by them as valued by the appraiser at the time of sanctioning the loan and even they have not disputed the rate of gold at Rs.850/- per gram at the time of borrowing the loan. So, the contention of the Complainants that the Opposite party is not entitled to claim the loan amount at all is without any basis. 15. It is undisputed that at the time of borrowing the loan, the jewels of the Complainants were valued by the appraiser of the bank and mentioned in the loan application with gross weight, net weight and rate of gold per gram. Now, we have to decide as to whether the Complainants are entitled to present market value of the gold at gross weight of the jewels pledged or as per the terms and conditions of the insurance and loan application agreement. 16. The learned counsel for the Opposite party has cited decision in Appeal (Civil) 4724/2006 in the case of Raythara Sahakari Bank Ltd., -Vs- Chandrakala R. Das wherein by its judgment dated 08.11.2006, the Honble Supreme Court set aside the order of the Honble National Commission and also the Honble State Commission, Bangalore and remanded the matter to consider the decision taken in the meeting in the presence of borrowers with regard to the claim for stolen jewels which were pledged. 17. In the present case, the Governing Body of the Opposite party Bank has taken decision as per Ex.R.7 to settle the claim of the borrowers on the basis of the value fixed by the appraiser after deducting the loan due and obtaining a indemnity bond. Though the Opposite party has not called for meeting of the borrowers to decide as to how the claim of the borrowers for pledged jewels which was stolen shall be settled. In the case of Raythara Sahakari Bank Ltd., -Vs- Chandrakala R. Das, the Honble Supreme Court has observed We find that all through stand of the Opposite party Bank has been that all the borrowers except the respondent have accepted the rate arrived at consensually at the meeting. The complainant did not dispute that such a decision had been taken. It is not clear as to whether the complainant had attended the meeting which was convened and where all the borrowers were given the chance to participate. The decision in the meeting undisputedly was to the effect that the value of the gold on the date of theft was to be paid. 18. It is undisputed that the claim of the 52 borrowers has been settled as per Ex.R.8. It is commonly known that if anybody offers to sell the jewellery the purchasers will deduct some percentage of the weight on the ground of wastage and stones while melting the jewel for making another jewel and they will not pay the cost of the jewel on gross weight, though the owner of the jewel suffers loss. In view of the terms of the insurance wherein the insurance has been taken on the basis of the value of the gold on net weight recorded in the Opposite party Bank records and further when already claim of the 52 borrowers has been settled as per the decision taken by the Head Office of the Opposite party Bank, the claim of the complainants that they are entitled to value of the gold jewelary pledged by them at present market value on gross weight cannot be sustained. If such claim is entertained, all borrowers including the borrowers whose claim is settled would rush to Forum. Even the gold rate will be fluctuating and at one time it will be on upper side and again it will be on lower rate and complainants have not established the rate of gold at the time of theft. Therefore, it cannot be said that the Opposite party has committed deficiency in service in not settling the claim of the complainants. 19. In the result, we proceed to pass the following order; ORDER The complaints CC.125/08, 126/08 & 127/08 are dismissed. However, there is no order as to cost. Copy of this order shall be kept in CC.125/08, 126/08 & 127/08. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 20th day of January 2009). (PRESIDENT) (MEMBER) (MEMBER)
