Sri Utpal Kumar Bhattacharya, Member
Instant complaint has been filed by the Complainant u/s 17(1)(a)(i) of the C.P Act, 1986. The case of the Complainants was that the Complainant No. 1, a reputed business man carrying activities in different domains right from Civil and Electronic Constructions to Pharmaceuticals Drugs, used to maintain Accounts in different Banks in and around his place of business at Bagdogra but, used to maintain only one Bank locker bearing No. 21 with the O.P No. 4 Bank branch for keeping the valuables and jewellery acquired by his family members by themselves and by way of gift from both sides on his marriage ceremony and on other occasions.
Said Complainants, at around 10 A.M in the morning 5th of May, 2016, received an information that 16 lockers of the O.P No. 4 Bank branch including that of the Complainants, bearing No. 21, were broken open by the burglars at the wee hours of 5th May, 2016. Immediately after receipt of the said shocking information, the Complainant No. 1 rushed to the Bank and observed that the miscreants got access to the Bank and committed the crime in an undisturbed situation due to some vital lapses on the part of the O.P Bank. He, along with other victims of the same incident, took some photographs around the premises of the branch and inside the Bank branch as well including the strong room where the lockers were placed. The Complainant filed a written complaint to the Bagdogra P.S and the complaint was diarised under GDE No. 227 dated 06.05.2016. The Complainant further came to know that the O.P No. 4 had already lodged an FIR under No. 96/2016 dated 05.05.2016 with the same P.S.
The Complainant, thereafter, submitted to the O.P No. 4 Bank branch, list of jewellery and valuables which were kept in the subject locker with the claim for compensation as per his initial assessment. He, subsequently, received information on enquiry from the O.P No. 4 Branch that the proposal along with the list of lost articles had been sent to the higher authority of the Bank which sought for certain clarification from the O.P No. 4. As conveyed, OP No. 4 was on the job of sending the demanded clarification. The issue for payment of compensation, as informed, could only be settled after having clearance from the said higher authority.
The Complainant, subsequently, got the value of the lost valuables and jewellery assessed by Sri Sameer Banerjee, chartered Engineer, valuer, loss assessor and an Advocate, High Court, City Civil Court, Alipur Court who arrived at an abstract value of the lost valuables and jewellery in two parts as under:-
- Gold and jewellery studded ornaments weighing 837.937gm, owned of their own and valued at Rs. 25,82,941/-.
- Gold and jewellery studded ornaments received as gift weighing 1034.68 gms valued at Rs. 33,49,259/-.
Total valuation of the lost valuables and jewellery thus came to Rs.25,82,941+33,49,259=59,32,200/-.
The Complainant claimed the said amount from the Appellant/OP Bank with compensation sending one legal notice to it. There being no effective outcome towards compensation for the loss from the Appellant/OP Bank, the Complainant filed the Complaint Case before this Commission.
Heard the Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Complainant submitted that the Bank premises was astonishingly found to be devoid of any functioning CCTV Camera. It was also not found inside the Bank branch. There was no burglar alarm and fire alarm. What appeared to be extremely serious was that there was no night guard or night watchman.
As contended, in absence of the CCTV Camera, burglar alarm and fire alarm, the premises became vulnerable to the miscreants who operated undisturbed. Even had the said equipment been made available, it would not have been of any help as there was nobody to act up to the signal of the said instruments for taking the prohibitory steps in absence of any night watchman or night guard.
As he continued, some of the window panes were found broken. The CCTV cameras were seen to be non-functioning and thereby could not provide the effective lead to determine the nature of the incident and the persons involved in it.
The Bank, apparently, was found approachable through the roof of the neighbouring building located hardly a foot away from the branch roof. Since, there was a bigger access through the window where a larger pane was found broken. The miscreants probably had got an easier access into the Bank from there.
As continued, the gas cutter was utilised to cut the steel rod at the entrance of the Bank and at the doors leading to the locker rooms. The vault and 16 number of lockers were also broken open by using gas cutter. It was most peculiar, as the Ld. Advocate continued, the miscreants went on the rampage inside the Bank branch absolutely unintervened which was only possible in connivance with the Bank personnel.
Naming one Sri Hari Roy, the Ld. Advocate submitted that the said person, an outsider and having no relation with the Bank branch, used to accompany the Bank official inside the locker room in utter violation of the banking rules, norms and procedures and the said person vanished immediately after occurrence of the incident.
As submitted, the Bank renders services to its customer on payment of charges. It should have taken adequate pre-caution to protect or safeguard the interest of its customer which it did not do in right earnest as it would be evident from the lapses on its part mentioned above.
Ld. Advocate finally prayed for allowing the complaint in view of the serious deficiencies on the part of the O.P Bank.
Ld. Advocate appearing on behalf of the O.P Bank, per contra, submitted that an FIR was lodged with the Bagdogra P.S and Bagdogra P.S Case No. 96/12016 dated 05.05.2016 was initiated against the said FIR. Instant complaint, as contended, was filed before the said investigation was finalised. As submitted, the Bank was having CCTV coverage at 8 points of the premises. There were arrangements of burglar alarm and sirens. The burglars had de-activated all the electronically operated machines.
As contended, the vault room where the vault and locker were installed were surrendered by 12 inch concrete wall. The main steel door of the vault room, next steel door as second line of defence made of steel rod, the currency chest and the vault were, as contended, manufactured by special quality steel of Godrej, a Pioneer Company of immense reputation and having specialisation in manufacturing the steel door and Bank’s vault and several deposit lockers in India.
It was submitted further that the armed guards was posted in the Bank during the day times as security.
As contended, the provisions envisaged under Section 151 and 152 of Indian Contract Act, 1872 were clearly applicable as the relation between the locker hirer and the Bank was in the nature of bailer and bailee. It was pertinent to mention herein that as per Section 151 of the Indian Contract Act, 1872, the bailee was bound to take as much care of the goods bail to him as a man of ordinary prudence, could under similar circumstances, take care of his own goods. In the above context, it was stated that the opposite parties had taken utmost security arrangement while discharging and performing their duties as service providers.
As contended, as per provision of Section 152 of the Indian Contract Act, 1872, the bailee, in absence of any special contract, was not responsible for the loss, destruction or deterioration of the things bailed.
The O.P had again highlighted that there existed only a Lease Agreement between the O.P No. 4 and the Complainant as, normally, the O.P Bank used to execute with all the similar customers of the branch.
With the above submission, the Ld. Advocate prayed for the complaint to be dismissed as the O.P Bank could not be held liable for any type of accident within the branch premises.
Perused the papers on record. Considered submissions of the Ld. Advocates appearing on behalf of both sides. The customers confer its complete reliance upon the Bank while depositing his valuable with the Bank locker on an understanding that the valuables and jewellery were kept under the safest custody and the Bank would take utmost care and caution to ensure measures to protect their deposits. In a bailer-bailee relationship, as was claimed to have existed between the O.P Bank and the Complainant, the bailee had liability to religiously adopt all steps to ensure foolproof protection of the deposit made by the customer in its locker.
The record revealed that the O.P Bank arranged for guarding the Bank premises during the banking hours. There was, therefore, admittedly, no guarding arrangement by the armed guards in the premises during the vulnerable period at night which the miscreants found the safest time to break into the Bank. The other arrangement likes CCTV installation, burglar alarm, fire alarm etc. appeared to be of no value unless they attracted the notice of the persons for taking preventive action against any incidence of burglary or fire. Absence of the night watchmen in the Bank, therefore, a proven lapse on the part of the O.P Bank facilitating the incident of the subject burglary.
The lapse, as mentioned above, therefore, made the O.P Bank liable for compensating for the loss.
The Complainants filed in the complaint the purchase invoices of the lost articles acquired by them of their own, running page 45 to 92. They, however, could not file any such documents which were gifted to them by the relatives of both sides on different occasions. The value of the lost ornaments listed in the complaint petition at pages 12 to 15 was assessed by the valuer with reference to the said invoices. Perused the valuation report of the valuer at running page 100 where the cumulative value, inclusive of (A) gold and jewellery studded ornaments purchased by the Complainants and (B) gold and jewellery studded ornaments received by them as gift, was assessed at Rs. 59,32,200/-.
The question was how it could be ascertained that all the listed items shown in the complaint petition were actually kept in the locker. In absence of any supporting document, we have hardly any reason to affirm such claim. We, however, have a guiding force to arrive at a definite conclusion in the form of an observation of the Hon’ble National Commission in Revision Petition No. 1291 of 2015 against the order dated 12.03.2015 in Appeal No. 264/2012 passed by the Ld. State Commission, Maharashtra, allowing the Appeal with the direction upon the Respondent/OP Bank to pay the entire value of 525.815 gms of gold to the Complainant within 60 days from the date of the order. The order was referred to as citation by the Ld. Advocate appearing on behalf of the Complainants.
The Hon’ble National Commission appeared to have dismissed the revision petition with the observation at para 7 as under:-
“We have duly considered the submissions made by the learned counsel for the petitioner, but we find ourselves unable to accept the same. Since no one else is present when a bank locker is used, the only evidence which a locker holder can give to prove the storing of the jewellery in his locker is his own evidence. In a case where deficiency on the part of the bank in rendering services to its customers is proved, the affidavit of the locker holder should ordinarily be accepted unless the same stands impeached by way of his cross examination. In fact, in most of the cases, it may not be possible for the locker holder even to produce documentary proof of purchase of the jewellery. It is well known that in our country the women get articles of jewellery primarily made of gold on their wedding, as well as on other occasions such as birth of a child and the marriage of a family member, from their parents, parents in law and other relatives. If the theft takes place years after they receive the aforesaid jewellery either in their wedding or some other occasion, it will not be possible either for them or for the parents/parents in law/relatives to produce documentary proof of the purchase of the said jewellery. In fact, it is also not necessary that the person who gifted the jewellery would be alive by the time the theft takes place. The rules of the bank do not require declaration of the valuables kept in the locker or their insurance. However, in the case before us, the jewellery was actually purchased by the complainant and his family members themselves and they had produced documentary proof of the said purchase. The sons of the complainant also filed their evidence disclosing the source of their income at the relevant time by producing copies of their bank passbook. The aforesaid documentary evidence thus amply corroborated the deposition of the complainant as regards the extent of the jewellery which was kept in the locker and it got stolen”.
The logic, in the instant case, appeared to be more applicable in view of the fact that the Complainants had submitted almost all the purchase invoices in respect of the articles purchased by them. The purchase invoices in respect of the gifted articles, however, could not be furnished for reasons already clarified by the Hon’ble Commission in the above observation.
We refer further to the decision of the Hon’ble Supreme Court of India in [Punjab Urban Planning and Development Authority (now Glada) and Anr.—Vs—Vidhyachetal and Anr.] in Special Leave to Appeal (C) No.4272 of 2015 with SLP (C) No. 5237 of 2015 wherein Hon’ble Court referred to a decision in [Gaziabad Development Authority—Vs—Balbir Singh] (2004) 5 SCC 65: (2004) 5 Supreme 51 where, while holding that the power of the Consumer Forum was extended to the dressing any injustice rendered upon a consumer as well as over any malafide capricious or any oppressive act done by a statutory body, relied upon the observation of the Hon’ble Court in another case [Lucknow Development Authority—Vs—NK Gupta], (1994) 1 SCC 243 made in the lines as under:-
“Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behaviour.”
The point of dispute being thus clarified, we are of the considered view that the complaint should be allowed in part with the directions as under.
Hence,
Ordered
that the Complaint be and the same stands allowed in part. The O.P Bank is hereby directed to make payment of Rs.59,49,300/- only being the value of the jewellery kept for the locker No. 21 of the Bagdogra branch of the O.P No. 1 to the Complainant within 45 days from the date of this order.
It is also directed to pay to the Complainant a compensation amounting to Rs. 1,50,000/- within the above mentioned deadline of 45 days from this order, failing which, simple interest @ 9% p.a. shall accrue to the decretal amounts from the date of default till the entire amount is fully realized.
