Tripura

StateCommission

A/7/2020

Mr. Ajoy Krishna Paul - Complainant(s)

Versus

The Branch Manager, HDFC Banl Ltd. - Opp.Party(s)

Mr. P. Roy Barman, Mr. K. Nath, Miss. A. Debbarma, Miss. N. Ghosh

20 Oct 2020

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No. A.7.2020

 

 

1. Ajoy Krishna Paul,

S/o Late Akhil Krishna Paul,

C/o: M/s Radha Rani Stores,

R/o: Netaji Subhash Road, Agartala

P.S. West Agartala, District: West Tripura,

Pin: 799001.

… … … … Appellant/Complainant.

Vs

 

1. The Branch Manager,

HDFC Bank Ltd.,

Agartala Branch,

N.S. Road, Netaji Chowmuhani, Agartala.

                                                                   … … … …  Respondent/Opposite Party.

 

 

 

 

 

 

 

 

 

 

 

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Dr. Chhanda Bhattacharyya

Member,

State Commission

 

Mr. Kamalendu Bikash Das

Member,

State Commission

 

 

 

For the Appellant:                                              Mr. Kausik Nath, Adv.

For the Respondent:                                           Mr. Mridul Kanti Arya, Adv.

Date of Hearing & Delivery of Judgment:         20.10.2020.

J U D G M E N T [O R A L]

 

U.B. Saha, J,

In this appeal challenge is to the order dated 22.05.2020 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Commission/Forum), West Tripura, Agartala in Case No.C.C.107 of 2019 whereby and whereunder the learned District Forum allowed the petition questioning the maintainability filed by the respondent, the opposite party-Bank herein, and dismissed the complaint petition filed by the complainant, the appellant herein.

2. Heard Mr. Kausik Nath, Ld. Counsel appearing on behalf of the appellant (hereinafter referred to as complainant) as well as Mr. Mridul Kanti Arya, Ld. Counsel appearing for the respondent (hereinafter referred to as opposite party/Bank).
3. Brief facts needed to be discussed are as follows:-

The appellant-complainant being an account holder of the -Bank on 01.10.2019 went to the HDFC Bank, Agartala Branch, the respondent-opposite party herein, in order to deposit some amount against his account. While the appellant-complainant was standing in the queue in front of the counter inside the Bank, suddenly he was seriously injured by bullets which came out from the rifle of security guard of the -Bank. Immediately thereafter, the appellant-complainant was taken to IGM Hospital, Agartala where he was given preliminary treatment and discharged with necessary advice of the doctor. The appellant-complainant on his own accord thereafter went to the Apollo Hospitals, Chennai to undergo surgery for removal of the bullets from his left leg and right hand. Finally, the appellant-complainant submitted a complaint petition alleging deficiency of service against the -Bank before the learned District Forum under Section 12 of the Consumer Protection Act, 1986 claiming compensation of Rs.10 lac for mental agony, anxiety and business loss suffered by him. He also claimed Rs.15,000/- as cost of litigation against the -Bank.

4. The opposite party-Bank filed an application before the learned District Forum challenging the maintainability of the complaint petition on the ground that the appellant-complainant cannot be treated as a consumer as he went to the Bank for banking related work and that accidentally one bullet was fired on the floor from the rifle of the security guard deployed by M/s Premier Vigilance & Security Pvt. Ltd.
5. The learned District Forum after hearing the parties allowed the petition filed by opposite party-Bank and dismissed the complaint petition holding that the complainant failed to make out a case of deficiency of service on the part of the opposite party-Bank.
6. Being aggrieved by the impugned order passed by the learned District Forum, the appellant-complainant preferred the instant appeal.
7. Mr. Nath, Ld. Counsel appearing for the appellant-complainant while urging for setting aside the impugned order and remanding the case for allowing the complainant adducing evidence in support of his complaint. He has also argued that in view of the order of the Hon’ble National Consumer Disputes Redressal Commission (hereinafter referred to as National Commission) appellant-complainant is a consumer of the opposite party-Bank. In support of his aforesaid contention he has relied upon an order of the Hon’ble National Commission in State Bank of India Vs Swapan Paul (First Appeal No.2488 of 2017). He has finally argued that the learned District Forum ought to have come to conclusion without recording any evidence that appellant-complainant has failed to make out a case of deficiency of service of the opposite party-Bank.
8. Mr. Arya, Ld. Counsel while supporting the impugned judgment would contend that the learned District Forum rightly dismissed the complaint petition on question of maintainability as the complainant did not raised any allegation regarding the service of the opposite party-Bank, but has actual allegation was against the conduct of the security guard deployed in the opposite party-Bank by M/s Premier Vigilance & Security Pvt. Ltd. He has also contended that the employer of the security guard was not made party before the learned District Forum on that ground also the complaint petition is not maintainable. Mr. Arya has finally contended that alleged fire accident was caused by the security guard issued principal employer is M/s Premier Vigilance & Security Pvt. Ltd. and not the opposite party-Bank and even after, any wrong was committed by the security guard for that the Bank cannot be held liable, rather the principal employer is to be responsible, but the said principal employer is not made party. On that point the complaint petition is not maintainable. In support of his contention the principal employer is liable he has relied upon a judgment of the Hon’ble Supreme Court in Krantikari Suraksha Rakshak Sanghatana Vs Bharat Sanchar Nigam Ltd. and others 2009 AIR (SC) 1118.
9. We have considered the submissions of the Ld. Counsel appearing for the parties and the order learned District Forum. We have also gone through the order of the Hon’ble National Commission in Swapan Paul (supra) wherein the Hon’ble National Commission considered the question of maintainability of a complaint petition almost in a similar case and held that the complainant of that case was availing the services of the bank, at the time he sustained gun-shot injury from the gun of the security guard is a consumer and consequent thereto, uphold the order of the Hon’ble State Commission,  West Bengal wherein the Hon’ble State Commission, West Bengal held that the complaint petition is maintainable and dismissed the appeal.
10. We have also gone through the judgment of the Hon’ble Supreme Court in Krantikari Suraksha Rakshak Sanghatana (supra). According to us, the said judgment is relating to the question of maintainability of the complaint petition before a Consumer Forum, rather regarding the status of the Security Guard Board constituted under the Act and the principal employer to whom the security guards were allotted. Thus, the said judgment has no direct bearing at this stage so far the case in hand is concerned.   

In view of the above, we are of the considered opinion that the learned District Forum ought to have come to a conclusion regarding the question of deficiency of service without recording any evidence, but the learned District Forum failed to do so. More so, it also appears from the impugned order that the learned District Forum did not say anything so as to whether the complainant is a consumer of the Bank or not. As according to the Hon’ble National Commission the complainant like the appellant herein, is a consumer thus we are also of the opinion that the complaint petition is maintainable. Hence, the impugned order is set aside and the matter is remanded to the learned District Forum to decide the case afresh on merits. We made it clear that in this judgment we did not express any opinion regarding the maintainability of the complaint petition so far the non-joinder or mis-joinder of necessary parties. Thus the same is open to decide by the learned District Forum. After receipt of this judgment, the learned District Forum shall issue notices to the parties for their appearance so that the matter can be decided afresh as indicated above.

In the result, the impugned judgment is set aside consequent thereto, the appeal is allowed and the matter is remanded to the learned District Forum to decide the case afresh as indicated above. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.