DIST. CONSUMER  DISPUTES  REDRESSAL  FORUM

NORTH 24 Pgs., BARASAT.

C. C.  NO-446/2016

Date of Filing:                                    Date of Admission:                            Date of Disposal:

14.07.2016                                           20.07.2016                                      08.06.2018              

Complainant  :        1.  Srabani Biswas, W/o Sri. Asoke Kumar Biswas.

                                    2. Asoke Kumar Biswas, S/o Sri. Probodh Kumar Biswas,

                                        Vill-Kemia, P.O.-Kirtipur, P.S.-Madhyamgram,

                                      District-North 24 Parganas, Kolkata-700 128.

                                                                        =Vs=

Opposite Parties: 1. The Chief Manager, Allahabad Bank, Barasat Main Branch

                                         K.B. Basu Road, P.O. & P.S.-Barasat, Kolkata-700 124.

2. The Chief Manager, Zonal Office, G.D. Block, Sector-III,

     Salt Lake, Kolkata, West Bengal, 700 106.              

P R E S E N T :-         Sri.   Bankim Chadra Chattopadhyay…………………  President.

                        :-         Smt. Silpi Majumder…….………………………..                  Member.

JUDGEMENT

This complaint is filed by the Complainants u/S 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs have broken their bank locker through an unauthorized and illegal manner.

The brief fact of the case of the Complainants is that they are the joint account holders with the OP-1 in respect of savings bank account which had been operating by both of them since long. In the year 1999 they decided to avail of locker facility from the OP-1 and the OP-1 allowed the application of the Complainants and they are enjoying the locker facility since 15.12.1999 subject to making payment of the locker rent without any default. Due to unavoidable reason since 2010-2011 it was not possible for the Complainants to visit the OP-Bank or any kind of transaction as the Complainant-2 became seriously ill and after long treatment it was detected that he is suffering from lung problem, which is malignant in nature. During that period the Complainants along with family members were passing their days with acute mental agony and have to run from pillar to post for better treatment of the Complainant-2.On 28.04.2016 the Complainants went to the bank locker to collect the gold article and stones for selling out the same for the sake of the treatment of the Complainant, but as and when contact was made with the employee attached with the locker department, the said employee told that the locker of the Complainants has no existence. Upon hearing the same the Complainant got great mental shock and became perplexed and contacted with the OP-1, but the OP-1 behaved in a very indifferent attitude and tried to bypass the matter in a very clandestine manner and asked the Complainants to come on 02.05.2016. Accordingly they contacted with the OP-1 on the said date and on that date the OP-1 handed over a photocopy of the seizer list and/or record of breaking open of locker, from where it was revealed that some of the valuable articles are missing and the OP-1 prepared the said seizer list in a very negligent manner.

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The Manager of the OP-1 was told by the Complainants, but the OP-1 in a very arbitrary manner forced on them to receive the articles by putting endorsement on it as ‘received with full satisfaction’ and tried to convince them that the Bank Authority tried to send notices upon them on several occasions, which is actually baseless and untrue statements. The Complainants raised objection regarding the said correspondences and requested the OP-1 to supply the entire copies of correspondences and relevant papers which is the settled norms to break up a locker, but the OP-1 behaved in a very rudely manner. Having no other alternative the Complainants sent a letter to the OP-1 on 03.05.2016 seeking for all the documents, which the Bank received on 04.05.2016, but since then the OP-1 did not take any fruitful step in connection with the dispute in question, which is an example of deficiency in service as well as unfair trade practice of the OPs for which the Complainants have been suffering from harassment, mental pain and agony. From the very beginning the OP-1 is trying to shift the fault on the shoulder of the Complainants. The Complainants have issued legal notice the OPs, but till date the OPs are bypassing the matter and withhold the vital information regarding acknowledgement of the notices by this Complainants. According to the Complainants by violating the terms and the conditions broke the locker of the Complainants in an illegal manner. Having no other alternative and finding no other way out the Complainants have approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to supply all the relevant documents regarding intimation given by the OP-Bank to the Complainants along with acknowledgment by the Complainants, to submit the entire documents by which strength the OP-Bank broke the questioned locker, to pay compensation to the tune of Rs.2,00,000/- due to harassment, mental agony and pain, to pay litigation cost of Rs.15,000/- to them.

The petition of complaint have been contested by the OPs by filing written version contending that the Complainant applied before the Bank for hiring a locker, the Bank accordingly allowed the said application, locker no-73E was given to the Complainant on 15.12.1999 for an annual rent of Rs.1,268/-. By making payment the Complainants renewed the locker from time to time, but from the year 2010 the Complainants did not bother to pay the annual rent for the said locker. The OP intimated and requested the Complainants on several occasions to deposit the rent for the locker from 2010, but the request and intimation went in vain as they did not show any interest to pay the rent. Being dissatisfied with the action of the Complainants and due to breach of the agreed terms and the conditions the OP issued demand notice for Rs.4,458/-. In the said letter it was clearly stated that as per the conditions of the agreement for hiring safe deposit locker in our bank, the bank has right to determine the agreement if the rent be in arrear and unpaid for one month after due date. The said notice was sent through registered post on 22.08.2014 and the letter was not returned to the bank and hence presumed to be delivered to the Complainants in due course of time. The Complainants did not make any reply to the said letter and the bank issued second demand notice as per the guideline on 13.09.2014

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whereby the Complainants were asked to deposit the locker rent within 15 days from the date of receipt of the letter. The second notice was also sent through registered post. The letter was not returned back to the bank and the OPs have presumed that the Complainants received the notice. Since te locker rent remained unpaid and the holders did not turn up hence the Bank issued third notice in the same manner to the Complainants. In spite of this the Complainants did not contact with the Bank nor paid the due locker rent The OPs have to wait for long one year, but did not get any response from the Complainants. Subsequently the bank has broken the locker of the Complainants in presence of one Ld. Advocate & Notary Public, Barasat Judges Court, valuer, Branch Manager and other witnesses and an inventory list was prepared on the same date. The articles found in the locker have been kept under the safe custody of the OP. The Bank has intimated the Complainants the list of the articles as per the inventory prepared and asked for a cumulative total of Rs.19,836/-. According to the OPs as there was no deficiency in service on their behalf, prayer is made for dismissal of the complaint with exemplary cost.

Both parties have adduced evidence on affidavit and the OPs have also adduced supplementary evidence. The OPs put some questionnaire to the Complainants, the Complainant filed replies to the same on affidavit.

We have carefully perused the record; papers and documents as available in the record and heard argument advanced by the Ld. Counsel for the contesting parties. It is seen by us that the allegation of the Complainants is that the OP-1 has broken their bank locker in an unauthorized and illegal manner without complying with the guidelines on safe deposit locker. The contention of the OPs is that they have acted in accordance with law as the Complainants did not bother to pay the locker rent for a prolonged period, notices were given, no reply from the end of the Complainants and being dissatisfied with the action of the Complainants and as per the guidelines the Bank had broken the locker, made inventory list, kept the article under its safe custody. According to the Complainants the action of the OPs suffer from deficiency in service, but the OPs have stated that they are not at all deficient in service.

We have carefully perused the guideline nos-14-15 as mentioned in the Guidelines on Safe Deposit. It is enumerated therein which runs as follows-

14.0 Unpaid Overdue Rent: Follow Up and Breaking Open Of Safe Deposit Locker

14.1 The locker rent should never be allowed to fall in arrears. The following steps should be adopted for recovering the arrear rent:

(a) Except where advance rent paid is still adequate to cover the annual rent or fixed deposit held, a month before expiry of the year for which the locker rent becomes due, a letter should be issued to the locker holder at the recorded address by the registered post with A/D or courier, advising him/her to pay the rent for the relevant year(s).

(b) One month after the expiry of the period, if the locker rent remains unpaid, another notice/letter should be sent by the branch at the last recorded address by registered post with A/D or courier, advising the locker holder that if the locker rent is not paid within 15 days from the date of notice, the locker would be broken and costs of such breaking open of

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the locker and notice charges of Rs.100/- would have to be borne by the locker holder in addition to arrears of rent.

( c ) If there is no response from the locker holder even after expiry of 15 days from the date of such notice, the Branch should report the entire matter to its Zonal Office.

(d) Simultaneously one more notice/letter should be sent to the locker holder at the last recoded address stating that no response has been received from him/her till date although more than 15 days have elapsed from the date of notice, and hence the locker should be broken on…….. and the Bank shall not hold any responsibility for any consequences. The locker holder should be further informed that the costs incurred by the Bank for breaking open the locker and the notice charges, in addition to double the outstanding locker rent, should have to be borne by the locker holder.

The Ld. Counsel for the OPs have stated mentioning the annexures that on 18.08.2014, 13.09.2014 and 28.11.2014 three notices were issued to the Complainants demanding and requesting to pay the outstanding locker rent within the stipulated period as per the guideline in default the bank will break open the locker having no option and as per the guideline. We have gone through the content of the said three letters issued by the Bank, but there is no document before us for coming to the conclusion that the Complainants have received those notices. The OPs are under the obligation to prove that the Complainant have received the same and if the OPs can prove the same by adducing cogent document, then only we can draw the opinion that inspite of receipt of three notices the Complainants did not bother to comply with the same or replied the same. Therefore in our view the OPs have failed to discharge their liability as per their Guidelines.  Not only that we have noticed that the Bank has failed to report the entire matter to its Zonal Office before breaking open the locker. Therefore it is crystal clear to us that the Bank has failed to abide by their own Guidelines.

After breaking open the locker the Bank had issued one letter to the locker holder mentioning the names of the article along with its respective weight as well as claiming the due amount from the locker holder. But we have noticed that there are discrepancies by and between the two documents filed by the Bank i.e. ‘record of breaking open of lockers’ and ‘the letter dated 07.01.2017’ issued by the Bank to the locker holders. During argument no convincing reply was forthcoming from the Bank regarding such discrepancies. Such action on behalf of the OPs is certainly an example of deficiency in service on behalf of the Bank.

It is seen by us that the Complainants have prayed for providing the relevant documents and papers to then showing service of notices and etc, and in this respect legal notice were also issued, but the Bank did not bother neither to provide the required documents nor replied the same till filing of this complaint. Such inaction is also an example of deficient service on the part of the Bank.

The Bank has submitted that as the three notices were not returned to the, hence it can be safely presumed that the Complainants have received the notices, but did not bother to take any step. But relying on the Section 27 of the General Clauses Act, 1897, there

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should be an endorsement by the recipient, otherwise good service/valid service of notice cannot said. As the OPs have failed to redress the grievance of the Complainants before coming to the Court of Law, hence in our view the Complainants are entitled to get compensation and admittedly by filing this complaint they have to incur some expenses and for this reason the Complainants are also entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence it is ordered that the complaint is allowed on contest with cost. The OPs are directed either severally or jointly to supply the entire relevant documents regarding intimation of the Bank to the Complainants and also the acknowledgement of the Complainants and also the documents by which strength the OP-Bank broke the locker  within 45 days from the date of passing of this judgment. The OPs are also directed either jointly or severally to pay compensation to the tune of Rs.25,000/- to the Complainants due to unnecessary harassment, mental agony and pain and litigation cost of Rs.5,000/- to the Complainants within 45 days from the date of passing of this judgment, in default the Complainants will be at liberty to put the entire order in execution as per provision of Law.

Let plain copy of this order be given to the party free of cost as per the provision of the CPR, 2005.

Member                                                                                           President

Dictated & Corrected by-