27.03.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal is directed against the judgment and order dated 18.4.2013 passed by the Ld. District Consumer Disputes Redressal Forum at Siliguri in Complaint Case No. 22/S/2012, directing the Ops/Appellants to return to the Complainants/Respondents the gold articles, which were kept in the locker or in the alternative, to pay to the Complainants/Respondents Rs. 1,96,000/- on account of the value of the gold articles, Rs. 5,000/- as compensation and Rs. 5,000/- as litigation cost within 45 days from the date of the order, failing which interest @ 9% per annum shall be payable on the value of the gold articles and the compensation, till the said payment is made in full to the Complainants/Respondents.
The facts of the case, in short, are that the Complainants/Respondents kept some gold ornaments in the OP/Appellant-Bank’s locker bearing No. 111, Key No. 83, Folio No. 246/2 sometime in the year 1985 and had been operating the same on payment of rents for the locker. But in the year 2000-2001 the Complainants/Respondents defaulted in payment of rents of the locker. Because of such default in payment of the rents of the locker, the OP/Appellant-Bank broke open the locker allegedly without due service of notice to the Complainants/Respondents. After such breaking open of the locker the Complainants/Respondents deposited on 27.6.2006 with the OP/Appellant-Bank Rs. 10,522/- on account of arrear of locker rents, locker breaking charges, etc. on the assurance from the OP/Appellant-Bank that the gold ornaments would be returned to the Complainants/Respondents after such payment, but the OP/Appellant-Bank did not return the ornaments showing the reason that the key of the concerned locker was not available at the material time.
Thereupon, the OP/Appellant-Bank returned on 18.9.2006 the said deposited amount to the Complainants/Respondents advising the Complainants/Respondents to re-deposit the same after the OP/Appellant-Bank informing the Complainants/Respondents after locating the ornaments concerned. But inspite of passage of a considerable period of time without any intimation about the location of the ornaments from the end of the OP/Appellant-Bank when the Complainants/Respondents wrote a letter dated 16.5.2007 followed by a visit to the concerned branch of the OP/Appellant-Bank on 21.11.2011, the OP/Appellant-Bank informed the Complainants/Respondents that the locker-key concerned could not be located and hence, the Complainants/Respondents would not get back the said ornaments as averred in the Petition of Complaint.
Then the Complainants/Respondents filed on 13.1.2012 a Complaint Case No. 6/S/12 before the Ld. District Forum, Siliguri, which was later withdrawn as averred in the Petition of Complaint on the assurance from the OP/Appellant-Bank that the ornaments would be returned within a reasonable time, but the ornaments in question were not returned till the filing of the present complaint despite vigorous persuasion including service of Advocate’s letter dated 17.2.2012. In this factual background, the Ld. District Forum passed the impugned judgment and order in the manner aforesaid. Aggrieved by such order the OP-Bank has preferred the present Appeal.
The Ld. Advocate for the Appellant/OP-Bank submits that the Ld. District Forum erroneously passed the impugned judgment and order without appreciating the facts that the Appellant/OP-Bank was within their right to break open the locker concerned after issuing Notices dated 6.10.1995, 29.3.2001 and 22.09.2001, which were although returned unserved by the Postal Department, as per banking procedure in view of the default of the Respondents/Complainants in payment of the rents of the locker for a considerable period of time, and hence, there was no deficiency in service on the part of the Appellant/OP-Bank.
The Ld. Advocate also submits that the Ld. District Forum failed to consider that the Respondents/ Complainants, while filing the Complaint, arbitrarily increased the value of the ornaments kept in the locker to Rs. 42,000/- against the value of Rs. 15,000/- as the Respondent No. 1/Complainant himself declared under his signature in the Declaration dated 7.3.2006 before the Assistant General Manager, Zonal Office of the Appellant/OP-Bank.
The Ld. Advocate further submits that the Ld. District Forum assessed the value of the gold ornaments on the basis of presumption, which is not tenable in the eye of law. The Ld. Advocate concludes that in view of the submission so put forward the impugned judgment and order should be set aside, it being illegal and improper.
On the other hand, the Ld. Advocate for the Respondents/ Complainants submits that the Appellant/OP-Bank broke open the locker concerned without due service of Notice as claimed by the Appellant/OP-Bank.
The Ld. Advocate further submits that the Respondents/Complainants received back Rs. 10,522/- as deposited with the Appellant/OP-Bank on account of arrear locker rents, locker breaking charges etc. as per advice of the Appellant/OP-Bank.
The Ld. Advocate also submits that the value of the material being Rs. 15,000/- as stated in a letter dated 7.3.2006 was a mere letter but not a declaration as argued by the Ld. Advocate for the Appellant/OP-Bank and that the actual value of the said ornaments at the relevant time was Rs. 42,000/- which is at present more than Rs. 2,00,000/- as per present market price.
The Ld. Advocate concludes that in view of the submission so made the impugned judgment and order should be sustained, it being just and proper.
We have heard both the sides, considered their rival submissions and perused the materials on records.
The materials on records reveal that the locker in question was broken open by the Appellant/OP-Bank without due service of Notice, which was returned unserved, to the Respondents/Complainants and without any presence of a respectable witness as it requires as per procedure laid down by the Reserve Bank of India for breaking open the locker. The document dated 7.3.2006, duly signed by the co-Complainant, being the Respondent No. 2, whatever nomenclature is attributed to it, i.e. letter or document, as available on records, unambiguously shows the value of the gold ornaments in question as Rs. 15,000/-. The quantum of ornaments being 70 gm as averred in the Petition of Complaint by the Respondents/Complainants, does not appear to have been supported by any documentary evidence of the material time by the Respondents/Complainants. The Appellant/OP-Bank has not adduced any requisite inventory of the ornaments which were found at the time of breaking open the locker concerned in the presence of any respectable witness.
On the above facts and evidence on records we find deficiency in service on the part of the Appellant/OP-Bank and also find that the impugned judgment and order was passed without proper appreciation of the facts and evidence on records. In this context, reliance is placed on a decision of the Hon’ble National Commission in Mahendra Singh Siwach & Anr. Vs. Punjab and Sind Bank & Anr., decided on 3.10.2006 in Original Petition No. 220 of 1998, wherein it was held, “When the Complainants are paying rent for the locker and entrusting their valuable articles in the safe locker and show their trust in the bank, it is the duty of the bank to protect the valuables of the clients………instead of accusing and disregarding the report and affidavits of the Complainants as to the value of the contents kept in the locker”.
Accordingly, we intend to modify the impugned order in the following manner:
- The Appellant/OP-Bank is directed to pay to the Respondents/Complainants Rs. 60,000/-, being the estimated value of the gold ornaments in question, the prices of which appear to have been escalated atleast four times since 2006, which appear to be just and proper in view of the high escalation of prices of gold ornaments in question since 2006;
- The Appellant/OP-Bank is also directed to pay Rs. 50,000/- as compensation;
- The Appellant/OP-Bank is further directed to pay Rs. 5,000/- as litigation cost;
- The Appellant/OP-Bank is also directed to comply with the directions within 45 days from the date of the order, failing which the Appellant/OP-Bank shall pay interest @ 9% per annum to the Respondents/Complainants for the entire period of default in payment.
In the result, the Appeal is allowed in part. The impugned judgment and order is modified to the extent mentioned above.
