Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by original opposite party (for short O.P.), feeling aggrieved by an order dated 28/02/2017 passed by the District Consumer Disputes Redressal Forum, Gondia, by which the consumer complaint bearing No.68/2016 filed by the respondent Nos.1 to 4 herein against the said O.P. has been partly allowed.
2. The case of the respondents as set out in the aforesaid consumer complaint in brief is as under.
a) The deceased Batukbhai @ Batuklal Popatlal Desai was the husband of the respondent No.1 and father of respondent Nos. 2 to 4. He was serving as Assistant Manager with the appellant-bank. He had hired two lockers bearing Nos.501 and 180 from appellant-bank, jointly in his name and in the name of respondent No.1. However crime was registered against him at police station Gondia on the report of the appellant for the offences punishable under section 409, 420, 201, 467, 468 and 471 of I.P.C. relating to the misappropriation of money of the appellant by committing cheating, making false documents and by committing forgery.
b) Police during investigation of the aforesaid crime had inspected both the aforesaid lockers and drew panchanama in the presence of bank employee and deceased Batukbhai @ Batuklal Popatlal Desai. Police did not seize any of the articles from the said lockers or did not seal both the lockers. The said inspection was done on 10/06/1996 and 18/06/1996. The deceased Batukbhai @ Batuklal Popatlal Desai died on 27/12/2012 and therefore the criminal case filed against him by the police was abatted and case was thus disposed of as per order dated 07/03/2013 passed by the learned Chief Judicial Magistrate, Gondia.
c) During the inspection by police, the gold, silver ornaments and the cash described in detail in para Nos.5 and 6 of the complaint were found. However, when the respondent Nos.1 and 4 visited the appellant/bank in the month of December 2015, the appellant-bank refused to give them information relating to the said lockers.
d) Therefore respondents issued notice dated 02/02/2016 to the appellant and called upon the appellant to handover the jewellaries and cash described in the complaint to them as lying in both aforesaid lockers. But they failed to comply with the demand made in the notice. Hence respondent Nos.1 to 4 filed consumer complaint before the Forum below seeking direction to the appellant to hand over the jewellaries and cash lying in both the locker bearing Nos.180 and 501, to the said respondents and also to pay them compensation of Rs.50,000/- for mental harassment and litigation cost of Rs.40,000/-.
3. The said complaint was resisted by the appellant by filing reply before the Forum below. The case of the appellant as set out in its reply is brief is as under.
The deceased Batukbhai @ Batuklal Popatlal Desai was serving in the appellant/bank, branch Gondia. He committed fraud and thereby misappropriated an amount of Rs.27,15,422/- of the appellant-bank by debiting the amount to the banks interest accrued on deposits head and by crediting that amount in fictitious names and then by withdrawing the said amount from those fictitious accounts. Hence the report was lodged with the police against him. Police registered crime against him for the offences punishable under sections 409, 420, 201, 467, 468 and 471 of I.P.C. A charge sheet was also filed against him in the Court. The police authority vide order dated 10/06/1996 had directed the appellant to stay the operation of locker No.180. However the said Batukbhai @ Batuklal Popatlal Desai died on 27/12/2012. The son in law of said Batukbhai @ Batuklal Popatlal Desai had visited the appellant/bank but he was not entitled to operate the lockers and hence he was not allowed to operate the lockers. The deceased Batukbhai @ Batuklal Popatlal Desai had kept his lock on the lockers. Thus the deficiency in service on the part of the appellant is denied. The complaint is also barred by limitation. The respondents are not the consumers. Hence the complaint is liable to be dismissed.
4. The Forum below after hearing both the parties and considering evidence brought on record, passed impugned order and thereby partly allowed the complaint directing the appellant/original O.P. as follows.
- The appellant shall intimate the respondent No.1 as regards the expenses required for preparing the duplicate key of the lockers for opening it and then accept the said amount from her and then new keys of the lockers be prepared and the hire charges for both the lockers be recovered from her and then she be granted permission to open the said lockers.
- If both lockers are not hired jointly in the names of respondent No.1 and her husband then as per rules of the bank, the relevant documents like letter of administration, succession certificate etc. be obtained and then the respondent No.1 be allowed to open the lockers.
5. We have heard advocate Mr. Firoz Khan, appearing for the appellant and advocate Mr. A.S.Jaiswar, appearing for respondents. We have also perused entire record and proceedings of the appeal.
6. The learned advocate of the appellant submitted in brief that departmental enquiry was conducted against deceased Batukbhai @ Batuklal Popatlal Desai by the appellant for gross mis-conduct of mis-appropriation of money of bank, cheating and preparing false documents and the said charges were proved against him in that enquiry and hence he was dismissed from the service after the said enquiry. The criminal case filed against him was closed due to his death as abatted. The District Forum below failed to appreciate that both the lockers were sealed by police during investigation and no permission can be granted to respondents to operate both the lockers. Moreover the complaint was barred by limitation. The impugned order is erroneous and it deserves to be set aside.
7. On the other hand, the learned advocate of the respondents supported the impugned order and submitted that when the lockers were hired jointly in the names of deceased Batukbhai @ Batuklal Popatlal Desai and his wife, the respondent No.1, then after the death of Batukbhai @ Batuklal Popatlal Desai, the respondent No.1 was entitled to operate both the lockers. Moreover the deceased Batukbhai @ Batuklal Popatlal Desai already filed appeal before the appellate authority and the said appeal was pending against the dismissal order, till the death of Batukbhai @ Batuklal Popatlal Desai. Therefore the learned advocate of the respondents requested that the appeal may be dismissed.
8. Initially we proceed to decide the issue of limitation. We find that there is no question of limitation in the present complaint since the dispute is relating to the right of respondents to operate the two lockers in which their jewellaries, ornaments and cash amount are kept. It is also not the case of appellant that they have got any right over the jewellaries, ornaments and cash kept in both the lockers. It is also not the case of the appellant that besides the respondents any other person or authority has made any claim for operation of both the lockers or made any claim to the jewelries, ornaments and cash lying in both the lockers. Therefore cause of action for filing of complaint was continuing till the filing of the complaint. Thus the complaint is not barred by limitation.
9. It is also only case of the appellant that police put seal to both the lockers during investigation and directed the appellant not to allow operation of the lockers. It is not disputed that the criminal case filed by police against the deceased Batukbhai @ Batuklal Popatlal Desai has been abatted due to his death during pendency of that criminal case. Therefore it can not be said that the jewelries, cash and the ornaments lying in both the lockers are not required by police for the purpose of trial of the case. When the proceeding of the said criminal case has been already closed due to the death of Batukbhai @ Batuklal Popatlal Desai, there is no question of keeping both the said lockers in sealed condition.
In our view, when no other person besides the respondents have made claim in respect of the operation of both the lockers and when admittedly both the lockers were hired by deceased Batukbhai @ Batuklal Popatlal Desai alongwith his wife (respondent No.1), then the respondents have got right after the death of Batukbhai @ Batuklal Popatlal Desai to operate both the lockers.
10. We also find that though the deceased Batukbhai @ Batuklal Popatlal Desai was dismissed the service of appellant after the departmental enquiry was conducted, still the appellant has made no claim over the jewelries, ornaments and cash lying in both the lockers. Therefore the Forum below has rightly held that the appellant has rendered deficient service to the respondents by not allowing them to operate both the lockers after the death of Batukbhai @ Batuklal Popatlal Desai and after the criminal case was abatted as above.
11. We also find that there was no order of any competent Court by which the appellant was directed not to allow any body to operate both the lockers. Hence the Forum below has rightly directed the appellant to allow the respondent No.1/the wife of deceased Batukbhai @ Batuklal Popatlal Desai to operate both the lockers after necessary arrangement is made about preparation of duplicate key and after the hire charges of the lockers are paid. We find no error or irregularity in the impugned order and therefore the appeal deserves to be dismissed.
//ORDER //
- The appeal is dismissed.
- No order as to costs in appeal.
- Copy of the order be furnished to both parties free of cost.
