BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

              Sri G.Sreenivas Rao, M.Sc., B.Ed.,LL.B.,PGADR (NALSAR),Member

Thursday, the 17^th day of January, 2013

CC.No. 44 of 2011

Between:

1. Mrs. Gayathri Muralidhar,

W/o P. Muralidhar,

R/o Plot No. 105/A, Near Durgha Bus Stop,

Old Safiguda, Sudhanagar Colony,

Malkajgiri, Hyderabad.

2. Mrs. J. Rajya Lakshmi,

W/o J.K. Kumar,

R/o Plot No. 105/A, Near Durgha Bus Stop,

Old Safiguda, Sudhanagar Colony,

Malkajgiri, Hyderabad.

     …. Complainants

And

1. Punjab National Bank,

Rep by Branch Manager,

Patancheru Branch,

Medak District. A.P.

2. Punjab National Bank,

Rep by Chief Manager,

5, Samsad Marg,

New Delhi – 110001.

                                                                                       … Opposite parties.

                This case came up for final hearing before us on 07.01.2013 in the presence of Mr. A.P. Suresh & P. Padma Rao, Advocates for the complainant and P. Venkateswara Rao, Advocate for the opposite parties, on perusing the record and having stood over for consideration till this day, this forum delivered the following:

O R D E R

(Per se G. Sreenivas Rao, Member)

                   The complaint is filed under section 12 of Consumer Protection Act, 1986 to direct the opposite parties 1 & 2 to pay a sum of Rs. 9 lakhs for loss of gold & silver with interest @ 18% p.a. w.e.f. 10.04.2010 till realization and to pay Rs. 3 lakhs compensation for mental agony, negligence & deficiency of service and to pay Rs. 10,000/- towards costs of the litigation.

                   The averments of the complaint in brief are as follows:

1. a).         The complainants 1 & 2 are the customers of opposite party No. 1 and hold a joint locker facility bearing No. 103 since October 2008 as opposite party No. 1 bank was in close proximity to their previous residence at Chandanagar, Hyderabad. They also paid Rs. 23,000/- as security deposit towards the said locker facility. The complainants kept gold & silver jewellary & antiques worth nearly Rs. 9 lakhs (current market value), in their locker for safety and used to operate the locker occasionally.

b)           The locker was last operated on 18.05.2009 and later the complainants shifted their residence to the present address at old safilguda. The complainant No. 1 visited the opposite party No. 1 branch on saturday the 10.04.2010 to use the locker facility and to her dismay, she noticed that the locker was found to be tampered and was shocked to notice that all the said jewellary missing except one gold chain with hanging ‘pagadam’, few bills & few small empty boxes which were left in the locker. On seeing this, the complainant No. 1 immediately reported to the incharge of the locker facility. The incharge replied that one of its customers already informed authorities of the opposite party No. 1 that the complainants’ locker appeared to have been tampered and that the opposite party No. 1 tried contacting the complainant but could not do so as he did not have the contact details of the complainant.

c).             The complainant, dissatisfied with the reply of incharge of locker facility, she immediately brought to the notice of Branch Manager of opposite party No. 1 and questioned about tampering of the locker. The Branch Manager of opposite party No. 1 simply refused its responsibility for the articles lost from the locker. Further the opposite party No. 1 requested the complainant No. 1 not to file any complaint against him and he would handle that issue without the intervention of police and sought time to resolve internally.

d).          On 12.04.2010, the complainant no. 1 filed her grievance before the opposite party no. 1. Despite several oral requests and a reminder 17.09.2010 the opposite party No. 1 did not make any attempt to resolve the issue. The complainant no. 1 also filed a private complaint on 06.04.2011, before the Hon’ble Addl. Judicial I Class Magistrate at Sangareddy and the court directed the PS, Patancheru to register the case against opposite party No. 1 and its employees. The same was registered as Crime No. 130 of 2011. Adding to it, the complainants sent a legal notice dt. 26.04.2011 to opposite party No. 1, who denied the claim in his reply notice.

e).         The complainants also submit that when the opposite party No. 1 was aware of the tampering of the locker, he should have lodged a police complaint or bring it to the notice of the customers/complainants. Further utterly failed to provide security for locker and thereby causing huge loss worth of Rs. 9 lakhs, which amounts to deficiency of services, unfair trade practice and unscrupulous exploitation of the customer. Thus seeking redressal for compensation and along with costs before this Forum..

2.           The opposite party No. 1 filed its counter and the same was adopted by the opposite party No. 2.

a)               In the version of opposite parties, they have denied the averments as concocted, not just and maintainable in law. Regarding the alleged tampering of the locker, the opposite parties submitted that they cannot be held responsible for the alleged loss of jewellary. The opposite parties also stated that it’s a well settled law that in a case of loss of articles from the locker, the banker being in the position of a ‘Bailee’ cannot be held responsible for the loss in the absence of tangible and reliable evidence showing that the bank is responsible for the tampering.

b).         The opposite parties pointed out that the complainant No. 1 (Mrs. Gayathri) successfully operated the locker on 10.04.2010 at 12:15 p.m., and in her letter dated 10.04.2010, she expressed apology to the bank for her delay in informing her new address to the bank. This proves her state of mental peace and tranquility.

c)        The opposite parties have also pointed that if the complainant noticed any tampering of her locker and loss of jewellery from it on 10.04.2010, she/complainant No. 1 would have been shocked to learn about such a serious incident and given a complaint about it immediately to the Bank manager and the officials in the higher echelons and the police also. It is an enigma as to why she/complainant No. 1 did not mention it in her above letter dt. 10.04.2010.

d).           In consequent to the above, on 12.04.2010 the complainant gave a complaint to the bank stating that the value of the missing jewellary was Rs. 4 lakhs and forty thousand, whereas in the legal notice to opposite parties its value was mentioned as Rs. 9 lakhs.

e).          The opposite parties submitted that as per the procedure governing operation of the lockers, it is not possible for the bank officials to open the locker unilaterally with their own key in the absence of the key held by the locker holder.

f).            The opposite parties have also brought to the notice of the forum that a complaint was also filed before the Banking OMBUDSMAN, A.P., Hyderabad. The same was dismissed by order dt. 03.07.2010 observing that there is no deficiency of service against the bank.

g).           Finally, the opposite parties submitted that in order to cover up their our latches and obsessed by evil designs, the complainants have concocted a false case against the bank. So the opposite parties are not liable for any wrong civil or criminal and there is no deficiency on their part in rendering services to the complainant. Hence prayed the forum to dismiss the complaint with exemplary costs.

3.          In support of the respective claims, the complainants were examined  as  PW. 1 & PW. 2 and got marked documents as Exs. A1 to A7, similarly the opposite parties were examined as DW. 1 to DW. 3 and got marked as Exs. B1 to B8. Further cross examination of PW. 1, PW.2 and DW.2, DW. 3 were also done.

4.          The complainants also relied upon the following citations and a letter in support of his claim.

1. PNB vs. KB Shetty, First appeal No. 7 of 1991 decided on 06.08.1991, 1991(2) CPR 633 (NC).
2. UCO Bank vs. Shiv Kumar Singh, Appeal No. 1888/2002 decided on 02.06.2003, 2003(3) CPR 304, State Commission MP.
3. Ugam Singh vs. GM SBI : CC NO. 37/93 decided on 20.07.1995, 1996(1) CPR 188, State Commission, Rajsthan and
4. A letter of Nodal Officer PNB, dt. 19.06.2011 addressed to Banking Ombudsman, RBI, Hyderabad.

             And both the parties submitted additional written arguments and advanced oral arguments also before the Forum.

5.        On serious perusal of the documentary evidence, the point for consideration is whether tampering of the locker occurred? if so, what is the liability of the bank for the deficiency in service & negligence.

Point:

6.                 The complainants hold a joint locker facility bearing No: 103 since Oct 2008 with the OP 1. The locker was last operated on 18-05-2009. And on

Saturday the 10-04-2010 the complainant No: 1 noticed that the locker was found to be tampered & was shocked to notice all the gold and silver jewellery missing except one gold chain with ‘pagadams’ (Corals) locket, few bills and small empty boxes were left in the locker. On the same day she reported to manager orally who promised to sort out the issue internally. Whereas the complainant No: 1 gave a letter on the same day i.e., 10-04-2010 which is the exhibit B1 produced by OP No. 1, expressing apology to the bank for the delay in informing her new address to the bank, but did not mention even a sentence about the tampering or missing of jewellery in that letter.

                  Consequently, on Monday the 12-04-2010, the complainants gave a complaint regarding tampering and loss of jewellery worth Rs. 4.40 lakhs (Exhibit A3). Whereas in the legal notice to OP No: 1 the value of loss of jewellery was mentioned as Rs. 9 lakhs (Exhibit A6). The discrepancy in the value of jewellery lost, leads the Forum to suspicion. 

                     The OP No: 1 also revealed that in response to the complaint made by the complainant No: 1, the banking ombudsman dismissed the same by its order dt: 3-07-2010 (Exhibit B4) observing that there was no deficiency of service on the part of the bank.

                 Then after a gap of nearly 9 months the complainants preferred a private complaint before the Hon’ble Addl. Judicial Magistrate I class at Sangareddy on 06-04-2011, subsequently on the direction of the court the Police Station, Patancheru registered a case with crime No: 130 of 2011 on 19-04-2011 (Exhibit A5).

                 As per the procedure governing the operation of lockers, it is not possible for the bank officials to open the locker unilaterally with their own key in the absence of the key held by the locker holder.

                    In order to obtain any useful inputs, cross examination of PW1, PW2, DW2 & DW3 have been done in detail, but did not yield any concrete evidence in it.

                  The exhibit A2 is without date and signature containing list of gold and silver items with description kept in the locker, with approximate value given by the individual was shown as 7,04,980/- (typed paper) and Ex A3  Complaint dt. 12.04.2010, given to bank along with list of gold and silver items kept in locker (handwritten). On close comparison of both these exhibits A2 & A3, they are not photocopy of each other, many variations do appear in them. More ever, these lists of items were neither valued by the Govt. valuer or they

are in the notice of the authorities / bank at the time of hiring the locker or any point of time prior to the operation of locker on 10-04-2010. If the bank manager was given the list of gold / silver ornaments, etc. kept in the locker, then the bank can be made liable.

                  The OPs also produced record of kachcha visit register showing details of operation of lockers of the bank from 16-05-2009 to 15-04-2010 (Exhibits B5 & B7) where in, the dates of operation of locker No: 103 by the complainants on 18-05-2009 & 10-04-2010, were authenticated by their signatures. In this register, no remark like tampering of the locker or protest by the locker holder has been recorded.

                    The two photographs of the locker (Ex A7) produced by the complainant also do not reveal anything about tampering. On close observation of the photographs of the locker captured in a CD also do not yield any clue for tampering. However there are three (3) key holes to every locker and the OPs said that one for the key of the locker holder and other for the bank. But about the third key hole opposite parties explained it as provision for additional facility, is made available to the locker holder. Added to it, a paper seal ‘Half torn’ is visible on the said locker. This feature was not explained by either of the counsel. Now coming to the shape of key holes compared with other lockers. Most of the key holes of the lockers are not soft finished, so on this count also, we cannot believe the alleged tampering.

                On 26.05.2010 the complainant gave a complaint to Banking Ombudsman who after an enquiry, in its order dt. 03.07.2010, mentioned that no case of deficiency of service against the bank as alleged is substantiated, further stated that “in any event the matter would require detailed investigation and consideration of elaborate evidence”. And also mentioned that the complainant is at liberty to approach any other forum.

 7.          The complainant relied on three (3) citations mentioned below:

               In the case of “Punjab National Bank, Bombay vs. V. Balachandra & others” decided on 06.08.1991 reported in 1991(2) CPR 633 (NC). – it was observed that the Bank did not probe departmentally when the locker had been found open on 09^th June 1988 and treated the matter as closed so far as the Bank is concerned. The ornaments & its value were in the knowledge of the bank and not disputed. So this case cannot be equated with the instant case.

              Secondly, in “UCO Bank & another vs. Shivakumar Singh” decided on 02.06.2003 by MP SCDRC, Bhopal in Appeal No. 1888/2002 reported in

2003(3) CPR 304 – it was held that when  the bank locker found lying open and bank informing locker hirer after 16 months about it, amounts to deficiency in service & bank was liable to compensate. Even this case cannot be compared with the instant case.

              Thirdly, in “Ugam Singh vs. GM SBI & others Patiala” decided on 20.07.1995 by Rajasthan SCDRC, Jaipur reported in 1996(1)CPR 188 – the complainant found the lockers already opened and no ornaments therein. The complainant lodged a report in the police on that very day and FIR was booked. This case is also different from the instant case.

                 Adding to the above in the letter of Nodal officer of Banking ombudsman dt. 19.06.2010, mentioned that “Complainant did not inform / allege missing of valuables immediately after opening of locker on 10.04.2010, therefore no tampering of locker had ever taken place, so requested the complainant to drop the complaint”. This letter also does not support the instant case.

                On perusal of the above, there is nothing on record to suggest or indicate that the tampering of the locker occurred, hence no inference can be gathered to support this case.

                 Another serious point observed in the instant case is that it will be a great shock to the complainants when they found the entire contents of their locker vanished. But it had not happened so, instead the complainant gave a simple letter on 10-04-2010 expressing apology for the delay in informing her new address to the bank without any whisper that the locker was tampered. This letter was not produced by the complainant in their evidence but the opposite party produced the same as exhibit B1. Later on during deposition the complainant no. 1 stated that she gave a complaint over phone in the evening on 10.04.2010, this seems to be erroneous on the part of the complainant no. 1. However, the complainants got registered a criminal case on 06-04-2011, before the Addl. Judicial I class Magistrate at Sangareddy. The case is still pending. So in our view that is the appropriate forum to seek relief if at all the facts are proved.

                   In view of the aforesaid discussion, the complainants could not prove tampering of the bank locker by the opposite parties moreover there is no documentary or circumstantial evidence about the alleged tampering. Hence no deficiency in service can be attributed to the opposite party No. 1.

8.                In the result, the complaint is dismissed with no order as to costs.

         Dictated to Stenographer, after correction the order was pronounced by us in the open court this the  17^th day of January, 2013.

        Sd/-                                       Sd/-                              Sd/-

           LADY MEMBER                     PRESIDENT            MALE MEMBER 

     APPENDIX OF EVIDENCE

For the complainant:                                             For the opposite parties;-

PW. 1 – Mrs. Gayatri Muralidhar                          DW.1 Mrs. Shyama Sundari

(Present Manager)

PW -2 – Smt. Rajya Lakshmi                                DW. 2 – Sri G. Venkanna

                                                                                      (Then Bank Manager

DW.3 Smt. N. Manjula

          (Then locker Officer)

DOCUMENTS MARKED

For the complainant:                                            For the opposite parties:-

                Sd/-                                    Sd/-                          Sd/-

       LADY MEMBER                   PRESIDENT             MALE MEMBER   

Copy to

1)   the Complainant

2)   The Opp.parties

3)   Spare copy