Delhi

StateCommission

CC/09/192

DR.B.K. TANDON - Complainant(s)

Versus

PUNJAB NATIONAL BANK AND OTHERS - Opp.Party(s)

04 Sep 2018

ORDER

 IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 04.09.2018

Date of Decision : 11.09.2018

COMPLAINT NO.192/2009

In the matter of:

 

1. Shri B.K. Tandon,

S/o. Late Shri R.L. Tandon,

R/o. D-229 Vivek Vihar,

Delhi-110095.              

 

2. Shri R.K. Tandon,

S/o. Late R.L. Tandon,

R/o. D-229, Vivek Vihar,

Delhi-110095.                                                      .........Complainants

 

Versus

 

1. Punjab National Bank,

Subzi Mandi Branch,

New Delhi.                                                 ......Opposite Party No.1

 

2. Chief Manager,

Punjab National Bank,

Subzi Mandi Branch,

New Delhi.                                                 …..Opposite Party No.2

 

3. Incharge (Custodian),

Punjab National Bank,

Subzi Mandi Branch,

New Delhi.                                                 ……Opposite Party No.3

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastab va, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

 

1. The complainants who are real brothers have filed the present case on the averments that OP-1 is a Nationalised Bank and OP-2 and 3 are officers of OP-1. The father of the complainant opened a locker no.54 with key no.15 with OP-1 on 14.08.1948. During his life time he co-opted the complainants as the joint allottee of said locker. The complainants often used to accompany their father as and when the locker was required to be operated. The articles/ jewellery lying in the locker when it was last operated includes gold/ silver items present value of which comes to 29.56 lakhs. List of the articles kept is Annexure-2 and valuation report thereof is Annexure-3. OP-1 had been raising demand of rent for the said locker from time to time and the same has been regularly paid till January 2003 as per account furnished by OP itself vide their letter dated 15.11.08 in response to RTI application. The OP did not raise any demand thereafter.
2. After the death of their father, complainants have not been regularly operating the locker. Now as children of the complainants have grown up by passage of time, it has been decided in the family that gold and silver articles lying in the locker should be distributed as a matter of family settlement among the heirs of their late father. In July, 2007 with a view to take out valuable lying in the locker, complainant approached OP-1. Officials of OP-1 informed the complainant that as per their record, no such locker existed in the name of complainants. The complainants were surprised to know the said fact and informed OP-1 that they could locate the locker inside the safe deposit vault room and with the permission of OP, tried to open locker no.54 alongwith officials of OP-1. But when key no.15 supplied by OP-1 was applied, it did not work because locker no.54 appeared to have been broken/ changed and keys also appeared to have been changed. They sent written complaint dated 14.07.07 to Chairman of OP-1. On 30.04.08 OP sent a fabricated and false reply stating that locker was broken open on 08.03.02 on account of non deposit of locker rent.  The said letter also states that the locker was opened by OP after sending several notices. No such notice have ever been received by the complainant. The OPs have miserably failed to show anything in this regard.
3. Letter dated 15.11.08 under RTI Act stated that inventory of the items kept in the locker was prepared but the said inventory does not tally with the list of the complainant. It is pertinent to state that although the locker was opened by the OP on 08.03.02 but the inventory had been made on 08.06.02 as shown in Annexure-4. Even the verification report enclosed with the said letter is not only fabricated and false but shocking also which shows malafide and fraudulent intention of the OP. The OP broke locker unauthorizedly, illegally, fraudulently in the absence of complainants without any intimation or notice to the complainant and have misappropriated the jewellery and valuable and other articles lying in the said locker. The locker had been opened without any independent witness. The inventory alleged to have been prepared by the OP was not sent to the complainants.
4. As per Clause-8 of the agreement executed between the parties and guidelines issued by RBI, in case lessee does not pay rent and does not operate the lockers for three years, the bank should consider opening the locker after giving notice to the lessee. Cause of action arose in July, 2007 when complainant approached OP for operating the locker and came to know that locker was not in existence. Hence this complaint for directing the OPs to release their jewellery and other items as mentioned in Annexure-2 to the complaint or to pass a decree towards cost of jewellery i.e.  Rs.29,56,434, awarding interest @15% per annum from the date of unauthorised breaking of the locker which comes to Rs.32,80,429/-. The complainants have also prayed compensation of Rs.20 lakhs for mental agony, torture and harassment and Rs.33,000/- as litigation charges.
5. OP filed a reply raising preliminary objections that complainants had  been duly informed vide notice dated  03.10.97, 06.02.98, 15.12.98, 04.02.99, 22.02.99, 17.05.99, 25.05.99 and 30.04.08 about non deposit of rent of the locker and the same was broken open on 08.03.02 in the presence of bank officials and advocate as per procedure of the bank. On merits they denied that there were articles/ jewellery as stated in the list attached with the complaint. The locker was issued on 04.01.85 and not 14.08.98. It has been denied  that rent of the locker was paid till January, 2003. No rent was being paid after 06.01.96. The inventory was prepared in the presence of bank officials. The complainant have not only dis-respected the dignity of the advocate but also made allegations against officials of the bank without any basis. Detailed inventory was prepared when  the locker was broken on 08.03.02 and the articles were kept in sealed cover. Vide letter dated 30.04.08 it was informed to the complainants that let all the lessee visit the branch and receive sealed cover on payment of bank charges. It has been denied that OP has violated any guidelines issued by RBI. It prayed for dismissal of the complaint.
6. Complainants filed rejoinder denying receipt of letter mentioned in preliminary objection no.3 of WS. They reiterated their own case as set up in the complaint. They  filed affidavit of complainant no.1 in evidence.
7. Per contra the OP filed affidavit of Shri Vinod Kumar Gupta, Sr. Manager.
8. Both the parties filed written arguments. We have gone through the material on record and heard the arguments. The counsel for OP submitted that complaint was barred by limitation. No such objection has been taken in the WS. More over, the complainant have specifically mentioned in the complaint that cause of action arose in July, 2007 when they approached OP for operating locker and came to know that the locker was not in existence. From the said date the complaint is within limitation.
9. The next issue which arises by whether present complaint is permissible under Consumer Protection Act. The counsel for complainant relied upon decision of National Commission in RP No.1915/12 titled as State Bank of India vs. Sri Tapash Kumar Mazumdar and another decided on 02.07.12. The said case pertained to loss of ornaments from locker which due to inadvertance was broken open erroneously. The District Forum and State Commission both allowed the complaint. Revision of OP was dismissed by National Commission. The same indicates that such complaints are maintainable under Consumer Protection Act.
10. More over the cited decision contains reference of previous decision of the National Commission in II (2007) CPJ 307 wherein it was held that breaking open of locker of consumer who is not in the defaulter list, such action of the bank tantamounts to deficiency in service and for this reason, the complainant consumer is entitled to get compensation.  Thus we hold that the complaint is maintainable.
11. On merits the counsel for complainant drew our attention towards chapter-13 of safe deposit vault (locker). Clause-27 (V) lays down that in the absence of any instructions, the lessee whether residing locally or outside, will be contacted on telephone/ mobile by any other mode of communication (if such information  is available on record) atleast a fortnight before the due date for making payment of locker rent. In case no contact with the lessee can be made and locker rent has not been paid within 2-3 days, he should be contacted personally. In case the lessee is not available at the local address, the person who introduced him should be contacted in order to ascertain his (lessee’s) whereabouts.
12. The above instructions show how seriously the bank should have taken the matter. It must have made efforts to contact on telephone or personally. In case the lessee was not available at the address given, bank should have contacted the introducer. No such plea has been put forward by the OP that it contacted the complainant on telephone or in person or complainant was not available at given address or his introducer was contacted.
13. Then Sub-rule VI of Rule-27 provide for giving a notice on form no.PNB 86 (Annexure-B), giving references of the telephone talk and personal visit to the lessee, requiring the lessee to deposit the rent within 15 days. Though the OP has pleaded several such notices, no copy of the notice has been placed on record. The OP has not mentioned mode by which alleged notices were sent. What to say of service of notice.
14. Sub-rule-X of Rule 27 further lays down that if all the above efforts fail, a final notice on form no.PNB 89 must be issued to the lessee against  registered acknowledgement due cover/ by courier on the last known address available on record. Signatures of the lessee on the AD, when received, would be verified by the custodian under his signature with date and kept on record.
15. No such final notice or AD thereof has been placed on record by the OP.
16. Sub-rule XIII further lays down that if the cover is received back undelivered, the matter must be referred to the Regional Manger by the branches other than large, very large and exceptionally large branches for obtaining  permission to break open the locker. OP has not pleaded that any such reference was made by it to Regional Manager for obtaining permission to break open the locker.
17. Clause 28 goes on to say that after permission for breaking open locker is granted by the committee of Sr. Manager and the second man at large branches or obtained from the circulate Head by small and medium branches or  for C.M. /A.G.M. in case of VLL/ELB, as the case made be, it must be broken open in the presence of the incumbent incharge and two independent  witnesses. One of the witnesses should be an advocate and the other an independent person known to the bank or a customer of the bank but not a staff or ex- staff member. The OP has pleaded that it had broken open the locker in the presence of an advocate but name and address of the advocate or name  and address of the independent witnesses had not been mentioned.
18. Copy of the inventory dated 08.06.02 from Nath Jewellers sent alongwith reply dated 15.11.08 under RTI is there on the record. It is three months after the breaking open of the locker. More over it does not contain signature of any advocate or other independent witness.
19. The counsel for the complainant drew our attention to copy of reply dated 15.11.08 under RTI. Para-4 thereof shows that customer was depositing the locker rent in cash as per available ledger sheet since 04.01.89 onward. Photocopy of the ledger sheet was enclosed. The said ledger sheet shows that nil balance was due as on 05.01.03. This demolish the plea of the OP that complainant had not paid the rent of the locker since 1996.
20. The counsel for OP raised a very strange argument that Annexure-2 to the complaint shows gold articles and silver articles. It could be that the complainants were considering the yellow metal as gold articles. The argument can not be accepted because OP’s own jeweller has found the remaining articles to be that of gold. The same have been valued @Rs.5000/- per 10 grm meaning thereby that they were golden article.
21. Now the only question remains is as to how to find out what were the articles kept by the complainant in the locker. For that the complainant can not be excepted to have any proof authenticated by the OP. The reason being that a holder of locker can not be excepted to disclose the contents of its locker to the bank. Operation is held out of sight of bank officials. Presence of bank officials is permitted only to ensure that locker was opened and closed in his presence, the second key retained by banker is applied by that official.
22. When all other plea of the OP have been found to be false, there is no option but to rely upon the sworn affidavit of the complainant for the name of articles, weight of articles kept by the complainant  in locker. The value thereof has been assessed by Dhawan Jeweller as Rs.29,56,434/- as per Annexure-3. The same is based on rate of gold per 10 grm as Rs.14,500/-. The date of said rate is not mentioned. It appears that the said rate is of 2009 which is not relevant. The relevant rate is date of breaking open the locker which is 2003 and the rate on the said date was Rs. 5,000/- per 10 grm as mentioned in the report of Nath Jeweller furnished by the OP. Thus we find that the value of the articles of as on the date of breaking open the locker was Rs.9,85,000/- approximately.
23. On the facts and circumstances of the case we do not deem it proper to grant any interest or cost of litigation. The OP-1 is directed to pay Rs.9,85,000/- to the complainants within 45 days from the date of receipt of copy of this order failing which it will be liable to pay interest @9% per annum from the date of this order till the date of payment.
24. Copy of the order be sent to both the parties free of cost.
25. File be consigned to record room.

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                  

  MEMBER                                               MEMBER (JUDICIAL)

 

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