RESERVED

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                              UTTAR PRADESH, LUCKNOW

                               COMPLAINT NO. 106 OF 2020     

01.Smt. Shweta Agarwal

      W/o Sri Ritesh Agarwal

02.Smt. Madhuri Agarwal

W/o Sri Pradeep Kumar Agarwal

                 Both R/o 225, Subedarganj

                  (Behind Mahila Gram Inter College)

                  Prayagraj-211001

                                                                                                 ...Complainants

                                                      Vs.

1. UCO Bank, A Banking Company,

Incorporated Under the Banking Companies

(Acquisition and Transfer of Undertakings) Act, 1973

having its Head Office at 10 B.T.M. Sarni

Kolkata-700001

     Through its Managing Director and

     Chief Executive Officer

2. UCO Bank, A Banking Company,

Incorporated Under the Banking Companies

(Acquisition and Transfer Of Undertakings) Act, 1973

having its Civil Lines Branch at 4, Sardar Patel Marg

Prayagraj-211001

     Through its Chief Manager

                                                                                   ...Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

HON’BLE MR. VIKAS SAXENA, MEMBER

For the Complainant       :  Sri Prashant Tahiliani, Advocate.

For the Opposite Party :  Sri Anand Kumar Singh and Sri Alok Kumar

                                            Srivastava, Advocate.

Dated :  07-02-2023

                                            JUDGMENT

           PER MR. JUSTICE ASHOK KUMAR, PRESIDENT

Heard Sri Prashant Tahiliani, learned Counsel for the complainants and Sri Anand Kumar Singh and Sri Alok Kumar Srivastava, learned Counsel for the opposite parties.

The instant complaint has been filed under Section 35 of the Consumer Protection Act, 2019 by Smt. Shweta Agarwal and Smt. Madhuri Agarwal with the following reliefs/prayer:-

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(a)that by a suitable order or direction passed in favour of the complainants and against the Bank, the bank be directed to pay to the complainants a sum of Rs.61,37,000/- as damages for the loss suffered by the complainants on account of the negligence, misconduct and deficiency in service on the part of the bank, alongwith interest @ 18% per annum.

(b) costs of the complaint be awarded to the complainants, as  against the bank.

(c)any other suitable order or direction which this Hon’ble

Commission may deem fit and proper in the ends of justice andin the circumstances of the case, may very kindly be passed in favour of the complaints and against the opposite party bank in addition to or substitution for the reliefs claimed.

Facts of the case stated in brief are that the complainants have filed this complaint against the opposite parties for damages on account of loss suffered by them due to gross negligence and misconduct on the part of the opposite parties which amounts to ‘deficiency of service’ on its part. The locker No. 14 AF with the UCO Bank, Civil Lines Branch, Allahabad was  hired by the complainants. The bank has been charging regular locker rent by debiting the rent from the savings bank account in the name of complainants.

It has been alleged by the complainants in their complaint that jewellery, gold ornaments and other valuables total worth Rs.56,37,000/- were kept in the locker with the bank. The complainants got the information through electronic and print media that the burglary took place in Civil Lines Branch of UCO Bank, Allahabad in the night of 29^th/30^th April, 2018. It has been reported by the media that the burglars had succeeded in breaking open the door of strong room and steel lockers with the help of gas cylinders and gas cutters and looted all the gold ornaments, jewellery and valuables kept in the locker. The complainants provided details of the jewellery, gold ornaments and other valuables kept in the locker are as under.

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It has been further alleged by the complainants in their complaint that even after burglary the entire bank premises including the locker room were lying open, unnoticed and unguarded till the morning of 01^st May, 2018. The burglary was noticed by the bank employees only in the morning of 01^st May, 2018 when the said branch opened after a continuous closure of 03 days and 4 night. The complainants’ locker was also broken alongwith other lockers and gold ornaments jewellery and other valuables were looted. The FIR was lodged by the bank on 01-05-2018 at 02.00 P.M.. The bank did not care to inform the complainants and other customers about the incident and the loss caused to them on account of the negligence and misconduct on the part of the bank, in not making proper/bank-like security arrangement. The complainant no.02 visited the bank on 02-05-2018 and found that the locker no. 14AF was opened by cutting the same with the help of gas cutter and all the gold ornaments, jewellery, valuables and cash kept therein were removed and the empty jewellery boxes were lying scattered near the locker. The complainant no.02 submitted a list of the gold ornaments, jewellery and other valuables kept in locker to the Branch Manager on 03-05-2018 estimating the loss to the tune of Rs.56,37,000/-.

It has been stated by the complainants that thereafter the  complainants in Complaint Case No. CC/105/2020 made a complaint on 17-05-2018 to the Governor, Reserve Bank of India informing him about security lapses and laps of duty on the part of the bank, as a result of which loss was caused to them. The complainants got the reply from RBI, Kolkata. The complainant was replied that the matter was taken up with UCO Bank and the bank has been advised to review the security arrangements of the branches having lockers to prevent recurrence of such incidence in future. It further says that the bank is closely monitoring the progress in the matter. The complainants also reported the matter to the Managing Director and Chief Executive Officer of the Bank on 19-05-2018 regarding security lapses on the part of the bank but the bank did not bother to reply their letter.

It has been alleged by the complainants in the complaint that the attitude of the bank management towards the loss caused to the customers

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has been totally indifferent and the bank management appears to be unconcerned with the happening and the loss, pain and suffering caused to the customers on account of the negligence and misconduct on the part of the bank, in not having proper security arrangement.

It has been further alleged by the complainants in the complaint that even after the incident, when the locker is not in use, the bank has charged locker rent from the complainants by debiting the amount from the savings bank account of the complainants. Admittedly the bank has acted negligently in not having proper/bank-like security arrangement for protection of the valuables of the complainants kept in their safe deposit locker. The bank is thus guilty of breach of trust and agreement with the complainants. Admittedly there was no security guard posted at the branch, either during day or during night to safe guard intrusion by unauthorized person in the branch. Further there was no night security guard posted in the branch for the last many years. The burglars could easily bring gas cylinders and cutters inside the branch and move with them to the strong room and break open the safe deposit lockers without any obstruction. The windows at the backside of the building were of weak grills with aluminium frames. There was no arrangement of light to cover the bank and there was total darkness.

The complainants have further alleged in their complaint that the security system did not raise any alarm when the burglars entered the bank building and walked to the strong room. There was no security arrangement inside the branch near the area leading to strong room and safe deposit vault. The bank failed to maintain proper security for protection of safe deposit lockers. Apart from the financial loss, the complainants have also suffered tremendous mental agony. Accordingly the complainants are entitled to a compensation of Rs.56,37,000/- for the loss caused to them on account of the burglary and Rs.5,00,000/- for mental agony, total Rs.61,37,000/-. The cause of action for filing the complaint arose on 01-05-2018 when the complainants learnt about the burglary, through electronic and print media, within the jurisdiction of this Hon’ble Commission and this Hon’ble Commission is competent to hear the matter.       

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In support of the complaint the complainants have filed the following documents.

01. Annexure No.01 - Copy of First Information Report No. 0206 lodged by the bank with the police station, Civil Lines, Allahabad.

02. Annexure No.02 – Copy of complaint submitted by the complainant No.2 to the Chief Manager, UCO Bank, Civil Lines Branch, Allahabad.

The opposite party UCO Bank has filed the written statement and denied the allegations made by the complainants in their complaint.

It has been stated by the opposite parties in their written statement that the complainants are not the consumer of the opposite parties within the meaning of Section 2(i)(d)(ii) of the Act, as they have not availed any services from the opposite parties.

It has also been stated in the written statement that no cause of action arise to the complainants for filing the present complaint against the opposite parties. The Hon’ble Commission has no jurisdiction to entertain the complaint. As such the complaint is not maintainable and is liable to be dismissed with heavy cost.

The opposite parties have stated in the written statement that there has been no negligence, misconduct or deficiency in service committed by the opposite party. The security arrangements in the bank were in accordance with the bank’s norms. The complainants are not the consumers of the opposite parties as in the case of locker, the relationship between the bank and the locker holder is that of Lessor and Lessee.

It is submitted that Locker No. 14AF was issued in the name of the complainants. The locker rent was debited from the SB account as per Bank’s guidelines upto 14-05-2018.

It is further stated by the opposite party in its written statement that as per mode of operation of locker contained in Bank’s Manual of Instruction Volume II Para 6.3 Page No.392, the bank is neither required to know the details of items kept by the locker holder in the locker nor has the locker holder to submit any details of items kept

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in/taken out from the locker.

It is stated by the opposite party that the burglary took place during the intervening night of 29/30^th April, 2018. It is further submitted that the bank was closed on 27-04-2018 at 07.00 P.M. after completing the daily work and remained closed for three days due to Holidays on 28^th, 29^th and 30^th April,2018 and opened on 01-05-2018. It is submitted that the incident of burglary came to the notice of the opposite party in the morning of 01-05-2018 at the time of opening the bank branch and the bank immediately informed the concerned police station and lodged the FIR regarding the same on 01-05-2018. The bank took all the required steps and made every security arrangement like installation of CCTV camera, smoke censors, Alarm system, double lock system and the same were in proper working condition on the date of incident and thus complied with all the required security arrangement as per Bank/RBI guidelines. There is no gross negligence, misconduct nor deficiency of service on the part of the opposite party. 

It has been stated by the opposite party in its written statement that the list of stolen items/ornaments reported by the complainant in the burglary incident were obtained only as per the instructions of the police department for investigation and after receiving the same it was submitted to the police station for the purpose of police investigation.

It is further submitted that bank has not taken any locker rent after the burglary incident from the account of the complainant no.01. The last locker rent charged by the bank was on 05-09-2017 of amount Rs.5,200/-. No further charges were collected by the bank.

It is submitted by the opposite party that as per bank’s guidelines 24 hours security guards are posted in currency chest branches only. The bank has posted a permanent security guard for day duty during working days. It is submitted that the windows at the backside of the building were wooden made embedded with strong iron grills. There was proper arrangement of light at the back side alongwith provision of one night vision CCTV camera.

It is submitted that there was proper security arrangements like installation of Alarm system with smoke censors and CCTV cameras

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inside the branch also. Escaping the range of the alarm system the culprits disconnected the wires of the alarm system making it dysfunctional and reached upto the strong room. They detached a few of the CCTV camera also but the image of their acts was caught by a few cameras which remain unnoticed by the culprits.

            It has been further submitted by the opposite party in its written statement that as per Clause 14 of the “Application for Hiring of Locker” dated 05-09-2012 duly executed and submitted by the complainants, the complainant has already accepted that “The bank shall not be liable for any loss or damage to the contents of the locker arising from any cause or event over which it is physically impossible for the bank to have any control.” The complaint filed by the complainants against the opposite party is an abuse of process of law and this Commission has no jurisdiction to adjudicate the present complaint and therefore it is liable to be dismissed on this ground alone. The complainant filed the frivolous and vexatious complaint which is liable to be dismissed with heavy cost as provided under Section 26 of the Consumer Protection Act, 1986.

            The opposite parties have filed objection against the application for condonation of delay filed by the complainants.

            Both the parties have filed their evidence in the instant complaint.

            Alongwith the evidence the complainant has filed the following documents.

01.Annexure-1 – Copy of FIR No. 0206 dated 01-05-2018.

02.Annexure-2 – Copy of Letter dated 03-05-2018 of the complainant to Branch Manager, UCO Bank reporting the list of gold ornaments, jewellery and other valuables lost in the robbery incident of the bank.

03.Annexure-3 – Copy of Letter dated 28-05-2018 written by the complainant to the Chief Manager of UCO Bank, Allahabad to return the boxes, bills and slips of the ornaments and silver ornaments left in the bank after the burglary.

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04.Annexure-4 – Copy of certificate dated 19-07-2018 issued by the Chief Manager of UCO Bank certifying tht locker No.14AF was affected lckers inj burglary incident of the branch.

            05.Annexure-5 to 10 – Copy of news items from leading daily newspapers.

06.Annexure-11 – Copy of report of registered valuer and jeweller Pankaj’s Art Jewel Creation assessing the loss of gold ornaments, jewellery and valuable kept in locker.

07.Annexure-12 to 18 – Photographs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the complainant wearing gold ornaments and jewellery.

            Alongwith the evidence the opposite parties have filed the following documents.

            Annexure-1 – Manual of Instructions Chaper-20 Safe Deposit Lockers.

           Annexure-2  - First Information Report

           Annexure-3  - Copy of Visitor Register dated 02-05-2018

           Annexure-4 - Copy of list of stolen items/ornaments reported and submitted by the complainants to the bank.

             Annexure-5 – Copy of Application for Hiring of Locker

            The complainants have also filed the reply against the evidence filed by the opposite parties.

Learned Counsel for the complainants has argued that the complainants were joint holders of safe deposit locker bearing no. 14AF in UCO Bank, Sardar Patel Marg, Civil Lines, Allahabad. The complainant Nos. 1 and 2 are ladies. The complainant No.02 is aged more than 65 years whereas the complainant no.01 is her daughter aged about 45 years. The complainants had been keeping their jewellery, gold ornaments and other valuables in the locker for a long time.

Learned Counsel for the complainants has further argued that the branch was closed for holidays, continuously for three working days and four intervening nights. As per the record of bank, disclosed in the FIR dated 01-05-2018 the burglary took place during the intervening night of 29 – 30 April, 2018 in which 16 lockers, including the locker of the

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complainants were broken by the burglars using gas cylinders and cutters. All valuables kept in the locker of the complainants was burgled and taken away.

The complainants came to know that their locker had been broken and all valuable kept therein stolen after getting information on 02-05-2018 from print media, local newspapers and by visiting the branch. Accordingly the complainants on the very next day i.e. 03-05-2018 submitted an item wise list of the valuables kept in the locker. Thereafter the complainants by way of letter dated 17-05-2018 and 19-05-2018 informed and complained to the Governor, Reserve Bank of India and the Managing Director and Chief Executive Officer of the bank, about the security and safety lapses resulting in the burglary incident. The RBI by email dated 05-12-2018 took notice of the complaint and advised the opposite parties to review the security arrangements of branches having lockers to prevent recurrence of such incident in future.

It has been argued by the learned Counsel for the complainants that there are serious security and safety deficiencies, weaknesses and lapses in the present case. The entire branch of the bank was lying open, unguarded and exposed to burglary/robbery/dacoity, including another attempt on 30 April and intervening of 30 April – 1 May 2018.The burglar security alarm system did not work. The failure of the burglar security alarm system raises doubts about its existence and working. The opposite parties’ claim that the burglary security alarm system was deactivated is absolutely casual, nor reliable and full of doubts.

Learned Counsel for the complainants has further argued that the opposite parties have completely failed to bring any evidence on record to show that the security and safety equipments installed at the bank were in perfect working condition, regularly maintained and tested. The evidence on record points out that the security and safety equipments were not regularly maintained/tested. The response of the opposite parties on this aspect has been very general, vague and evasive. The old and outdated security and safety equipments including CCTV cameras were installed which were not fit to prevent the burglary incident. The bank has not been

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reviewing its security and safety arrangements and has also failed to show whether it had installed technologically advanced and latest security and safety equipments.

It has been contended by the learned Counsel for the complainants that the RBI has taken notice of the security lapses on the complainants’ letter and advised the opposite parties to review the security arrangements of branches having lockers. No permanent night security guard was posted on duty to protect the lockers of customers. This has been admitted by the opposite parties in para 21 of the written statement dated 17-10-2020. The evidence on record shows that no permanent night security guard was posted on duty for the last 12 years and the permanent security guard posted for day duty during working days was not attending to his duties. The absence of a night security guard/watchman in the bank premises is a major breach in the security arrangements, as held by the Hon’ble West Bengal Commission in the case of Amal Kumar Shikdar V/s The Central Bank of India, Complaint Case No. CC/300/2017. The opposite parties’ claim that there was proper arrangement of light at the back side of the branch is without any evidence. There was no proper arrangement of light at the back side of the branch, taking advantage of which burglary was committed.

Learned Counsel for the complainants has argued that the branch was not adequately secured. The burglars entered the bank through a window fitted on the outer wall at the back side of the branch building. Having a window of poor and weak strength on the outer wall of the branch building is a serious security lapse. The quality and strength of the lockers were comparatively inferior to the quality of the cash vault. The burglars tried to break the cash vault of the bank. However, when they failed to do so they moved to break the lockers of the customers which were easy to break.

Learned Counsel for the complainants has contended that any quantum of compensation should be fairly assessed and determined, bearing in mind that the complainants have tried their level best to establish the contents of the locker and corroborate the extent of their loss. This is clear from the detailed and specific evidence filed by the

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complainants. The opposite parties have no case or cause to rebut, reject or doubt the evidence placed on record by the complainants. If the claim of the complainants is not accepted despite their efforts, it would result in a peculiar situation where no person, howsoever genuine, can ever be expected to keep his valuables in the locker of a bank. One cannot ignore that this situation has happened because of the current system and practice followed by the opposite parties on the basis of rules and regulations laid down by themselves. The poor customer who has no part to play for this situation cannot be made a scapegoat. The degree of negligence and deficiency in service is so grave and unforgiving that no person of ordinary prudence would have committed the security and safety lapses as have been committed by the bank in the present case. This is evident from the fact that the opposite parties did not find it fit to post a permanent night security guard to look after the lockers of customers.

Learned Counsel for the complainants has argued that the guidelines of Reserve Bank of India provides that the branch manager of each branch should inspect alarm system everyday but this was not done by the branch manager of the opposite party bank.

Learned Counsel for the complainants has submitted that no information has been provided by the opposite party bank to its customers who lost their belongings on account of dacoity/theft committed at the branch of the opposite party bank with regard to the report which has been lodged by the Branch Manager of the bank with the Police Station concerned, namely as to whether the police has submitted the final report or the investigation is still pending.

He has further submitted that even the bank has not carried out the requisite necessary inspection or submitted its report with regard to the latches on account of admitted fact that the security of the bank was not upto the mark, the electric alarm system was not operative and the requisite security equipments were ‘ON’ 24x7. The maintenance of security system was very poor as no register has been maintained with regard to security system nor any evidence has been adduced or provided by the bank.

Learned Counsel for the complainants has submitted that the

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Reserve Bank of India provides the complete profile with regard to the security system of the Nationalized Banks. In the said profile the alarm system provides the (a) location of switches in the branch, (B) State of alarm system, (C) If defective, how long and whether  defects were reported to service contractors, (D) Frequency of testing, (E) are employees aware of location of switches, (F) is the alarm system under maintenance contract, if not, reason.

The profile further provides the armed guards, weapons, arms licence for armed guards, requisite sanctioned strength, posted strength (aa) Bank’s guards (ab) Outsourced guards.

Apart from that learned Counsel for the complainants also submits that services of alarm system, fire system and CCTV etc. are also to be checked and maintained for which the report is necessary to be provided by the branch of the bank concerned to the reporting section. The banks are also required to maintain the status of CCTV system which according to the learned Counsel for the complainants in the instant case was not maintained nor the requisite service of the alarm system was done as required by the profile.

Learned Counsel for the complainants has also relied upon the Reserve Bank of India guidelines which according to him specifically provides the duty of the branch manager to furnish the report with regard to its observations in the last security inspection which was held at the bank which according to the learned Counsel for the complainants in the instant case is also not followed by the opposite party/bank.

He has further pointed out that the requisite auto dialer has not been installed in the bank nor the opposite party bank was in regular liaison to be maintained with the police.

Learned Counsel for the opposite party bank has not placed any reply to the above mentioned issues/latches pointed out by the learned Counsel for the complainants with regard to the security latches, alarm system latches and safety latches etc.      

The Hon’ble Jharkhand State Commission in the case of Gopal Prasad Mahanty and others V/s State Bank of India, Complaint Case No.

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CC/5/2018, affirmed by the Hon’ble National Commission in First Appeal No. 382 of 2020, has held the State Bank of India, Bokaro is liable for the loss suffered by the locker holder considering the deficiency in securing the safe deposit lockers of the customers. The Hon’ble Jharkhand State Commission has granted a lump sum compensation of Rs.30,00,000/- towards mental trauma considering the huge loss of gold jewellery, ornaments and other valuable of Rs.34,19,000/- of the complainant therein.

Learned Counsel for the complainant has submitted that the facts of the present complaint and that of the case of Gopal Prasad Mahanty (supra.) are same. The burglary in both cases has been planned and committed by the same person, namely Hasan Chikana. The modus operandi of the burglary is also the same by using gas cylinders and cutters both in Bokaro and Allahabad. Under similar circumstances, the State Bank of India, Bokaro has been made responsible for deficiency in rendering services to locker holders.

Learned Counsel for the opposite parties has argued that the complainants are not consumer of the opposite parties as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. No cause of action has been arisen in favour of the complainants for filing present complaint against the opposite parties. This Commission has no jurisdiction to entertain the present complaint.

Learned Counsel for the opposite parties has further argued that the opposite parties were neither negligent nor committed any misconduct or deficiency in service. There is no relation of Consumer and service provider between the complainants and the opposite parties.

It is contended by the learned Counsel for the opposite parties that the condition of clause 14 of the agreement/contract dated 05-09-2012 entered into between the complainants and the opposite parties the complainants hired the locker by accepting mandatory condition that – “The Bank shall not be liable for any loss or damage to the contents of the locker arising from any cause or event over which it is physically impossible for the bank to have any control”. Thus it is clear that the

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complainants hired the locker on a condition that the bank shall not be liable in case of loss or damage to the locker. So the complainants cannot traverse beyond the terms of the contract.

It is further contended by the learned Counsel for the opposite parties that the condition of clause 16 of the agreement/contract shows that “it is hereby expressly agreed that the relations between the bank and the hirer is that of “Lessor and Lessee” and not that of banker and customer. Thus it is crystal clear that the complainants were lessee of the opposite parties not consumers. 

The complainants did not surrender the locker after the incident, so the locker was still on lease in favour of the complainants, in that even as per the bank’s guidelines locker rent was debited from the S/B account.

It is further contended by the learned Counsel for the opposite parties that the Chaper-20 of Bank’s Manual of Instructions relates to safe deposit lockers and instruction no. 1.1 at page 386 provides that Safe Deposit Locker facility provided by the banks is unique, since it is required only to know who is authorized to have access to the locker and not necessarily to know what is in the locker. It is, therefore, very important that access to the locker is allowed with maximum of care. This clarifies that the bank remains completely unknown and unaware of the items which are kept in the locker by the hirer. Therefore, the bank cannot be held liable for those items which never kept in the locker, keeping in the knowledge of the bank.

In the instruction no. 1.2 at page 386 of the aforesaid manual provides that – “Relationship between the bank and the hirer is that of lessor and lessee and not that of banker and customer.” This provision makes clear that the complainants are not consumer of the opposite parties.

It is contended by the learned Counsel for the opposite parties that the burglary took place during the intervening night of 29/30^th April, 2018. It is further submitted that the bank was closed on 27-04-2018 at 07.00 P.M. after completing the daily work and remained closed for three days due to Holidays on 28^th, 29^th and 30^th April,2018 and opened on 01-05-2018. It is submitted that the incident of burglary came to the notice of the opposite party in the morning of 01-05-2018 at the time of opening the

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bank branch and the bank immediately informed the concerned police station and lodged the FIR regarding the same on 01-05-2018.

It has been argued by the learned Counsel for the opposite parties that the bank took all the required steps and made every security arrangement like installation of CCTV camera, smoke censors, Alarm system, double lock system and the same were in proper working condition on the date of incident and thus complied with all the required security arrangement as per Bank/RBI guidelines. There is no gross negligence, misconduct nor deficiency of service on the part of the opposite party. 

It has been further contended by the learned Counsel for the  opposite parties that the list of articles which were allegedly kept by them in the locker, however, there was no evidence about keeping those articles in the locker and the list was handed over to the police for investigation purposes.

It is submitted by the learned Counsel for the opposite parties that there was proper security arrangements like installation of Alarm system with smoke censors and CCTV cameras inside the branch also. Escaping the range of the alarm system the culprits disconnected the wires of the alarm system making it dysfunctional and reached upto the strong room. They detached a few of the CCTV camera also but the image of their acts was caught by a few cameras which remain unnoticed by the culprits.

            It is contended by the learned Counsel for the opposite parties that as per the guidelines of the bank 24 hours security guards are posted only at the Currency Chest Branches and the branch situated at Civil Lines is not a currency chest branch. The bank has posted a permanent security guard for day duty during working days. The windows at the backside of the building were wooden made embedded with strong iron grills and there was proper arrangement of light at the back side and one night vision CCTV camera in working condition was also installed at the back side of the bank.

It is again repeated and further contended by the learned Counsel

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for the opposite parties that the complainants themselves admitted that the miscreants came with gas cylinder and gas cutter and they cut the strong iron grills and lockers. So it is admitted by the complainants that the miscreants came with equipped tools and committed burglary. In that incident there was no negligence on the part of the opposite parties.

It is argued by the learned Counsel for the opposite parties that the security of the bank was not under question on the last working day i.e. 27-04-2018 before the incident and there was no alarming condition about the security. No lessee including the complainants ever made any complaint regarding the security of lockers and also there was no apprehension about the burglary. Thus it is crystal clear that the bank was not deficient or liable for that incident and cannot be held liable for the same.

The complainants never stated that they have ever faced any security issue prior to the burglary. It means that the complainants were very well satisfied with the security system of the bank and after the incident they cannot blame the bank. Also, there is no evidence of fault, imperfection or deficiency on the part of the opposite parties. The claim made by the complainants for payment of compensation of Rs.61,37,000/- towards the loss due to burglar and for mental agony is baseless and absolutely denied, they are not entitled to get the same.

Learned Counsel for the opposite parties has further argued that the bank maintained the required security arrangement as per the guidelines of the RBI, for protection of bank locker and the valuable kept therein. Inspite of maintaining all precautions and required security measures by the bank this unfortunate burglary incident took place. The bank is mere Lessor and is not liable for loss or damage to the articles of the locker arising from any cause or event beyond the control of the bank. The complaint is not maintainable as per the provisions of Section 12(1)(c) of the Consumer Protection Act 1986. The complaint is also not maintainable as per provisions of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

It has been argued by the learned Counsel for the opposite parties that in present case joint complaint has been filed by the

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complainant no.1 Smt. Shweta Agarwal and 2. Smt. Madhuri Agarwal without obtaining the permission of this Commission for filing joint complaint. The complainants have failed to fulfil the above mandatory legal condition, therefore, complaint is liable to be dismissed on this ground alone.

Learned Counsel for the opposite parties has argued that the complainants hired the locker as per the standard conditions which are an integral part of the contract entered into between the bank and the complainants. In these conditions the bank and the complainants are addressed as ‘Lessor’ and ‘Lessee’ respectively and as such present complaint is not maintainable and is liable to be dismissed with cost.

The complainant did not supply any evidence as to how he exactly defined the articles and he also failed to mention the source relying upon which he claimed the articles to be kept in the locker.  The complainant tried to get an undue advantage. The complainants have annexed a Valuer’s report dated 29-03-2019 to their affidavit, whereby they attempted to show the value of alleged articles are assessed by the Valuer. However, the complaint was filed after about one year from the date of aforesaid report but the complainant did not whisper about such report in their complaint nor attached the report with the complaint. Moreover the complainants did not submit affidavit of the Valuer, so without affidavit of Valuer the report cannot be accepted as evidence in the eye of law. Practically it is not possible for a normal human being to keep remember the name and weight of so many articles which are being claimed by the complainants. Moreover, there is no evidence regarding the keeping of the alleged contents in the locker or the availability of the contents in the locker at the time of burglary. The claim of the complainants is absolutely false and baseless.

It has been further argued by the learned Counsel for the opposite parties that the complainants alleged that they kept many ornaments and contents in the locker, so the burden is upon the complainants to prove their statements with conclusive evidence beyond doubt. But they failed to produce documentary evidence about purchase of each and every article. The complainants have to prove the

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dates on which they put the alleged contents in the locker. Mere, on the baseless statements it cannot be presumed that the alleged articles were kept in the locker and the same were still there in the locker on the date of the burglary.

Learned Counsel for the opposite parties has argued that the complainants are not entitled to any relief as no deficiency is being caused by the opposite parties at any point of time. The instant complaint is abuse and misuse of process of law. The complaint of the complainants may kindly be dismissed with cost.

In support of the arguments learned Counsel for the opposite parties

has submitted the following documents.

01.Copy of F.I.R.

02.Copy of complaints submitted by the complainant No.02 to the UCO Bank, Civil Lines Branch, Reserve Bank of India.

03. Copy of agreement/contract dated 05-09-2012.

04. Copy of extract of aforesaid manual page 386.

05. Copy of First Information Report.

06. Copy of visitor’s register dated 02-05-2018.

07. Copy of list given by the complainant no.01.

08.Copy of circular/rules dated 16-11-2022 issued by the opposite parties.

We have heard the learned Counsel for the parties and perused the complaint filed by the complainants, written statement of the opposite parties, evidence of the complainant and the opposite parties as well as the documents available on record. 

It is evident from the pleadings of both the parties that the complainant has alleged many lapses of security and safety of the lockers in the bank and the opposite party bank could not refute and reply them that there was no lapse in security.

On perusal of pleadings of both the parties it is established that there were many lapses of security on the part of bank so that the miscreants were able to easily commit the theft and by not providing adequate support and security in maintaining lockers the opposite

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party/bank committed deficiency in service. The complainants have sought the relief of total value of the articles which they alleges those were kept inside the said locker.

            Now the question before this Court is as to whether the bank is liable to compensate the complainants the entire value of the articles allegedly kept inside the locker by the complainants or adequate damages can be given to the complainants for the ‘deficiency in service’ in providing locker service to the complainants by the bank under the provisions of the Consumer Protection Act 1986. The entire value of the articles can be given to the complainants by this Commission if they are able to prove this fact that all the articles, which they claims, were actually kept in the locker by them and or their family members. In particular, if legally it is established that the movable property kept inside the locker was in possession of the bank as ‘bailment’, as defined in Indian Contract Act, 1876.

This question was considered elaborately by Honorable Apex Court in recent judgement Amitabh Das Gupta versus United Bank of India and others reported in II (2021) CPJ page 3 (SC) in this case before Honourable Supreme Court the Appellant’s mother (since deceased) took a locker on rent  in the Deshapriya Park, Kolkata Branch of the Respondent No. 1-Bank. The Appellant/Complainant was joined as a joint holder of the locker. On date 27.5.1995, the Appellant visited the Respondent No.01 Bank to operate the locker and deposit the locker rent. However, the Appellant was informed that the Bank had broken open his locker on 22.9.1994 for non-payment of rent dues for the period of 1993-1994. Further, that the locker had subsequently been reallocated to another customer.  On 29.5.1995 and 2.6.1995 the Appellant sent communications to Respondent No. 1 claiming that such breaking of his locker by the Bank was illegal since he had cleared entire dues, prior to the breaking of the locker. The Chief Manager of Respondent 1, who is Respondent No. 3 in the present appeal, responded to the communication and admitted to having inadvertently broken open the locker, though there were no outstanding dues to be paid, and apologized for the same.

The Honourable Supreme Court considered following points in the

final appeal —

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1.Whether the Bank owes a duty of care to the locker holder under the laws of bailment or any other law with respect to the contents of the locker?

2.Whether the same can be effectively adjudicated in the course of consumer dispute proceedings? 

3.Whether the Bank owes an independent duty of care to its customers with respect to diligent management and operation of the locker, and compensation can be awarded for noncompliance of such duty?

Having Followed the judgement of Honourable Punjab and Haryana High Court Atul Mehra v. Bank of Maharashtra, reported in AIR 2003 P&H 11, which pertained to the same bundle of facts as in Mohinder Singh Nanda v. Bank of Maharashtra, 1998 ISJ (Banking) 673, the honourable Apex Court observed: —

The appellant locker holders filed a suit alleging that due to the robbery, jewels worth Rs. 4, 26,160 were stolen from his locker. It was claimed that the respondent bank had not complied with the duty of care owed under the laws of bailment. However, the Trial Court found that the knowledge of the weight and value of the articles stored inside the locker was exclusive to the customer, and the bank did not have notice of the same. Further, the appellants had not produced any evidence at the stage of trial to establish the contents of the locker........The respondent bank could only be fastened with liability on the contents of the locker being disclosed to it. In the absence of this information, it would have to be held that there was no entrustment of the goods to constitute bailment as required under Section 148 of the Indian Contract Act, 1872.....But there is no evidence on record to show that the defendant-Bank had
the knowledge of the articles in the locker. Unless there is entrustment of the property to the defendant Bank, the Bank cannot be held responsible for the theft. The plaintiffs have miserably failed to prove that there was entrustment of the articles with the defendant Bank and that the Bank authorities were aware of the articles placed in the locker.

Relying upon various judgements of Honourable High Courts and

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honourable NCDRC, New Delhi, the Honourable Apex Court held: —

“8.10 In light of the aforementioned conflicting decisions of the National Commission, we find that the approach adopted by the National Commission in the impugned judgment is the correct approach. In the present case, the Respondent bank has not disputed their negligence in breaking open the locker in spite of clearance of rental dues by the Appellant. However, the number of items originally deposited by the Appellant inside the locker is a contested fact. Hence, we do not propose to record any conclusions on whether the Appellant locker holder in the present case is entitled to claim return or recovery of the value of the ornaments alleged to have been deposited by him. We are in agreement with the findings in the impugned judgment to the extent that the Appellant must file a separate suit before the competent Civil Court for seeking this relief and for proving that the aforesaid items were
actually in the custody of the bank. This is especially inasmuch as the contents of the locker are disputed by the Respondent bank. Hence it                                
is clarified that all questions of fact and law are left open before the Civil Court to decide on the merits of the case, including as to whether the law of bailment is applicable, or any other laws the case may                                                                        be.
9. As discussed supra, imposition of liability upon the bank with respect to the contents of the locker is dependent upon provision and appreciation of evidence in a civil suit for such purpose. However, this does not mean that the Appellant in the present case is left without any remedy. Banks as service providers under the earlier Consumer Protection Act, 1986, as well as the newly enacted Consumer Protection Act, 2019, owe a separate duty of care to exercise due diligence in
maintaining and operating their locker or safety/deposit systems. This includes ensuring the proper functioning of the locker system, guarding against unauthorized access to the lockers and providing appropriate safeguards against theft and robbery. This duty of care is to be exercised irrespective of the application of the laws of bailment or any other legal liability regime to the contents of the locker. The banks custodians of public property cannot leave the customers in the lurch merely by

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claiming ignorance of the contents of the lockers.”

On perusal of the facts of this case we find that the facts of the case before Honourable Supreme Court are quite similar to this case, as in this case also the bank, where the locker of the consumers where taken on hire, found to be guilty of lapses on their part, the lapses regarding the maintenance of locker for which the bank had no answer in defense. But on the other hand, it is also proved that the contents of locker were not known to the bank or any of its staff or employees. Therefore, the contents and value of the articles kept in locker remained a disputable question, which could be proved by leading evidence on that behalf by the complainants.

After perusal of the judgement of Honourable Apex Court we are of the opinion that the opposite party Bank cannot be held liable for the paying the entire  amount for the value of the articles which the complainants are claiming to be kept inside the locker as there is no evidence of these except the statements of the complainants themselves. But we also consider the fact that owing to serious lapses in taking adequate security measures, the bank committed "deficiency in service" as a service provider of the lockers in question, for which the bank is liable to pay adequate damages to its customer i.e. the complainants.

Having heard the arguments of learned Counsel for both the parties and after considering the facts and circumstances of the case we are of the positive opinion that the submission of learned Counsel for the complainant appears to be justified and the complainants are entitled to get compensation from the opposite parties.

In view of the aforesaid, we are of the positive opinion that the argument of the learned Counsel for the complainant has force and the complaint of the complainants is liable to be allowed and the opposite parties are liable to pay damages of Rs.30,00,000/- (Rupees Thirty Lacs Only) to the complainants.

                               ORDER

The Complaint is partially allowed. The opposite party Bank is directed to pay damages Rs.30,00,000/- ( Rupees Thirty Lacs Only ) within one month from today to the complainants for ‘deficiency in service’ in maintenance of locker and taking security measures. If the

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aforesaid amount is not paid within the time stipulated, 9% per annum simple interest shall also be payable on the aforesaid amount from the date of this judgment till the payment is made. The complainants are also entitled to receive Rs.1,00,000/- ( Rupees One Lac Only ) as costs of the complaint from the opposite parties.

The stenographer is requested to upload this order on the Website of this Commission at the earliest. 

Let certified copy of this judgment be provided to the parties as per rules.

        ( JUSTICE ASHOK KUMAR )                   ( VIKAS SAXENA )

                     PRESIDENT                                                MEMBER

            Pnt.