COL. A JAKHMOLA vs Punjab National Bank

THIS is an appeal against the order dated 10.3.2003 passed by the District Forum, Dehradun whereby the complaint of the complainant was dismissed.

THE brief facts of the case are that the complainant has got a locker in the Punjab National Bank, Indira Nagar Branch, Dehradun. He last operated this locker on 25.6.1998. He has kept ornaments in this locker. On 25.7.1998 at about 2.00 p.m. he received a telephone from the Bank that the locker was found opened. It is alleged in Para 9 of the complaint, "that on 25th July, 1998 at about 2.00 p.m. when the complainants returned to their house from Military Hospital, the complainant No. 1 received telephonic message from the opposite party. THEy asked the complainant No. 1 to come to Bank immediately because the locker of the complainants was found opened. On receipt of the said information the complainant No. 1 rushed to the Bank at once. On reaching the Bank the complainant No. 1 along with the officers of the Bank went to the strong room and found that his locker No. 114 was lying opened. THE Bank Officials informed him that Mr. B.S. Rawat, Asstt. Manager of the opposite party Bank went to the strong room with a customer to allot a locker, then he found that the shutter of the locker No. 114 is slightly protruding and thereafter he informed the said incident to the Senior Branch Manager". In Para 10 of the complaint, it is alleged that the complainant No. 1 opened the locker in presence of the Branch Manager and other officers, he found that all the ornaments, jewellery, silver coins, gold guineas etc. were missing from the said locker. In the complaint he has valued the ornaments as written in Para 11, "the value of the said articles is approximately Rs. 4,65,100/-" We emphasise the word APPROXIMATELY, exact valuation has not been given. It is alleged that there is deficiency in service of the opposite party, therefore, the complainant filed the complaint. The Bank filed written statement and alleged that the Bank is not aware of the contents of the locker. The locker system is mechanized having automatic double locking system. In the evening the locker incharge inspected the locker room and as per routine check up he could not detect that the locker was not properly locked as personal lock on the locker was intact and locked. According to the Bank there was negligence on the part of the complainant itself in locking the locker and, therefore, the opposite party is not bound. It is further alleged that the complainants are not the consumers and the complaint is liable to be dismissed.

After taking the evidence of the parties and hearing them the learned Forum in a very detailed judgment dismissed the complaint, against which order the present appeal has been filed.

WE have heard the learned Counsel for the parties and gone through the records. The complainant has challenged the judgment of the learned Forum on various grounds. It was also argued by the learned Counsel for the appellant that the learned Forum could not have shifted its responsibility by merely saying that there are complicated questions and that can be satsifactorily determined by the Civil Court and, therefore, cannot throw away the complaint merely on this ground. The learned Counsel for the appellant Mr. Anurag Gupta submitted the ruling reported in III (2002) CPJ 8 (SC)=IV (2002) SLT 714=AIR 2002 Supreme Court 2931, Dr. J.J. Merchant and Others v. Shrinath Chaturvedi, in which it has been held that Consumer Protection Act has been formulated to give speedy justice to the consumers. Competent Judges are sitting in the District Forums and State Commissions. Forum is competent to decide complex issues. Plea that trial by Forum is summary, that is not a ground to direct party to go to Civil Court. There is also ruling of the Hon''ble Supreme Court reported in I (2002) CPJ 16 (SC), Synoo Industries v. State Bank of Bikaner and Jaipur & Ors., that where detailed evidence is to be led, case cannot be disposed of in summary fashion. This was also a case of Bank facilities. On this point other rulings reported in I (2003) CPJ 558, K.M. Jamalul Malik v. United India Insurance Co. Ltd. & Anr. and I (2003) CPJ 598, Nunna Chandrasekhra Rao v. Natha Prabhakar Rao & Anr. have also been referred, which we need not discuss in view of the judgment of the Hon''ble Supreme Court. WE fully agree with these rulings but the question in this case is not so simple as canvassed upon. After all a dispute in the Consumer Forum is to be decided by a summary proceeding. The Consumer Forums have got all the trappings of a Civil Court but de facto this is not a Civil Court. Neither elaborate inquiry is to be made in the Consumer Forums, nor elaborate evidence is to be taken. The first point which can be impressed upon for relegating the matter to the Civil Court is that in the own complaint as discussed above in Para 11 the complainant has written the price of the articles as approximately Rs. 4,65,100/-. Then how he can claim a sum of Rs. 4,65,100/- is not clear? Will the Forum or this Commission allow the complaint on approximate value! On approximate value a decree cannot be passed. The decree is to be passed on exact amount. The claim should be of exact amount. If the value of the articles was approximately Rs. 4,65,100/-, it may be less than this also. It may be higher of this amount also. On what basis, on what evidence, on what reasoning the Forum should say that this price is approximate, therefore, it should be Rs. 4,50,000/- or Rs. 3,00,000/- or Rs. 2,00,000/- or any other amount or even more than Rs. 5,00,000/- or Rs. 6,00,000/- on the higher side. The weight of the ornaments has not been given. The market price of the ornaments on the date of loss has not been given. The complainant says that this was ornament. Its approximate value is Rs. 4,65,100/-, the Court should pass a decree of Rs. 4,65,100/- in his favour. Under no imagination of law such a decree can be passed, which can be speculated claims. Not only this in the list submitted by the complainant on 9.12.1998 at left side name of item has been given, on the right side approximate cost is given. Nath is one. No weight. No price. Not clear whether of gold or silver or diamond. Approximate price Rs. 10,000/-. On what basis and on what value this Commission should say that the Nath was of Rs. 10,000/-? Same is the position with other articles and out of 16 articles, the price of every article is approximate cost. The complainant has said it to be Rs. 4,65,100/-, he could have said Rs. 40,00,000/- , he could have said it Rs. 4,000/- , we have got no option but to take it as correct because the complainant says it and on the records of the opposite party, there is absolutely no evidence what were the articles, on what metal they were manufactured, what was their price? The learned Counsel for the appellant referred the ruling reported in AIR 1967 Supreme Court 109 (V 54 C 19), Jahuri Sah and Others v. Dwarika Prasad Jhujhunwala and Others, that vague denial is no denial. We agree but when a fact is not known to the other party, how it can admit or deny it and in that circumstance, the total burden is on the other party to prove his case. It is true as held in the ruling reported in [2003 (21) LCD 428, Laxmi Chandra v. 1st Additional District Judge, Muzaffarnagar and Others, that unrebutted affidavits are not be believed and relied upon. We agree but again to emphasise how and on what basis we can say that the value is given by the complainant is correct one. It is only in elaborate hearing that the complainant can be asked to give weight price. He can be asked to summon some jeweller. He can be asked to give value through assessor or valuer but merely because he says in an unrebutted affidavit, he cannot say that you have got no option but to believe my affidavit. We are sorry we cannot agree on this argument. In the FIR lodged with the police as well, the approximate price can be given. Everywhere only approximated price has been given. We have not to decide the case on approximity but by actual proof.

THE finding of the learned Forum was challenged by the learned Counsel for the complainant also on the ground that the learned Forum has given a finding that the list will not suffice the parties. THE complainant has not produced the record with regard to the purchase of those items, nor the weight thereof. It is true that the list only will not suffice. It is also true that weight has not been given. This part of finding cannot be quashed by us. It is true that cash memos could not be produced by the complainant. It is for two reasons. Firstly we agree that ornaments go from generation to generation and old ornaments also pass from one member to another member of the family. Jewellery is not necessarily immediately purchased that one may preserve cash memo. But who will give this finding that all the ornaments in this particular case have been inherited from generation to generation and no cash memo was preserved by the complainant. We were asked to take judicial notice of this fact that old ornaments are inherited. It is true. We may take judicial notice of this. But no judicial notice of the fact can be taken that if a person possess 16 items, all the ornaments have been inherited. Some ornaments are inherited, some ornaments are given by the relations at marriage etc. It cannot be ruled out that no person purchases ornments for his or her personal use. THEre is no allegation or evidence that out of the entire 16 items, every item was ancestral one and no item was at all purchased by the complainant. THEre was no allegation before the learned Forum, no evidence before the learned Forum to hold that these all ornaments were ancestral one. It was the duty of the complainant to have pleaded about this fact. Even if ornaments were old, their weight must be known by the complainant. THEir market price on the date of alleged bungling must be known and it must be actually pleaded upon. Not only this in the memorandum of appeal also the complainant did not specifically tell this fact that he has inherited the jewellery from his generation. He has given only a general observation how the jewellery passes from one person to another. He has not given what happened in his particular case? THE entire pleading in Para 20 of the memorandum of appeal is as under : "Because the Forum below was wrong in holding that the cash memos ought to have been filed. While giving such finding, the Forum below has ignored the fact that the jewellery is one item which is carried forward from one generation to other. People owning such items do not possess cash memos but with certainty they can spell out its weight and its correct value calculated on the basis of the prevailing price of gold etc."

One thing is clear from this pleading that he did not plead that he also has inherited the jewellery from his generation but one thing, which he pleaded is very dangerous for him and that is people owning such items do not possess cash memos but with certainty they can spell out its weight and its correct value calculated on the basis of the prevailing price of gold. THE complainant has not with certainty spelled out. Its weight has not been given. Its correct value has not been given. He has given the valuation only in thousand without any odd figure. THE price of Nath Rs. 10,000/-, Kundan Set Rs. 75,000/- and every price in thousand is not understandable. Some figures in hundreds and 2 digits and one digit must have been there. THE complainant did not calculate correct value of the items. It was also written that correct value can be calculated on the basis of prevailing price of gold. THE prevailing price of gold on the date of alleged theft has not also been discussed. THEn how in these circumstances we can pass a decree for specific amount has not been explained by the complainant? The case on the face of it appears to be something of a great conspiracy. The case of the complainant is that his locker has been tampered with. His ornaments removed. If it is so, this is a very serious question and if the ornaments of a customer are not safe in the locker, it is not safe anywhere on earth. Then the entire system of locker should be finished. To the other hand the case of the Bank is that the complainant himself did not properly lock the locker and there was negligence on his part. If it is so, why it could not have been detected earlier has not been proved by the bank? Why it all of a sudden was detected on 25.7.1998, just after a month has not been explained and to our utter surprise it appears that Bank as like ordinary businessman directed the customer to take its own action, it has nothing to do. What was desirable, may be there any law or not, that the Bank should have immediately prepared its own note, memorandum that such and such locker is not found properly locked or is protruding or, open, it should have taken some photographs. The locker should have been opened in presence of some Magistrate or High Officials of the Bank or Police Officer but it is all fantastic that the complainant was asked 2 or 3 officials assembled, the complainant opened the locker, found everything missing. Both are interested party. Bank Officials can speak lie to any extent to safe their own skin. If they have hatched any conspiracy to the theft, burglary or misappropriation or breach of trust, they should be punished like an ordinary criminal and if the complainant has removed his articles and is blaming the Bank, that is also condemnable and strict punishment should be imposed against such a person. We are not going to give any finding which of the two allegations are correct. But it is true that one either of the two is correct. In that case Bank should have immediately lodged the FIR with the police, should have immediately reported the matter to the highest authority of the Bank, should have got the locker opened in the presence of their authorities, independent and honest and should have prepared an inventory, if any ornament was found in the locker but it is fantastic that the complainant was called, locker was opened and everything was found missing. We are not sitting as a Criminal Court to collect evidence on either of the two allegations and to give a finding. We do not know that happened in the FIR lodged by the complainant. Even the result of the final report or charge sheet has not been produced before us. Howe can we say which of the two cases is correct? The Forum if advised the parties to get these investigated by the Civil Court, where elaborate evidence can be had, where the parties can be asked to explain their conduct by way of examination and cross-examination of the witnesses, it cannot be said to be incorrect, in this summary proceeding, we cannot decide the dispute. The learned Forum has observed at page 4 of its judgment that undisputedly the opposite party/bank has not filed any of these documents to establish that the said instructions were complied with. The same guidelines are held to be mandatory. There is divergent case of the Bank that the locker was checked as routine check up. Some officers say that it was done, some officers say that it was not done and still it is fantastic for the Forum to write that the complainant was negligent. Again the learned Forum has observed at page 6 of its judgment that the circumstances lead to the conclusion that if the bank officials have been negligent in not following the procedure as laid down for the operation of safe deposit lockers, the complainant No. 1 has been equally negligent and both, the Bank and the complainant No. 1, contributed to the negligence. It is true that if the complainant has contributed to the negligence, his complaint should be dismissed but if there is contributory negligence, why the complainant alone should suffer, why not compensation against the Bank has been given, even if the complainant is unable to prove his actual loss. What steps Bank authorities have taken against their officials for their contributory negligence has not been explained by the Bank. At least they have not filed any appeal to say that the judgment as passed by the learned Forum is incorrect one.

ON merits we may agree with the finding as recorded by the learned Forum but at least it is not proved on record by this summary evidence, how the shutter of the locker was slightly protruding? Whether it was opened or not? It is admitted by the parties and also observed by the learned Forum that unless the locker is locked, the key of the complainant could not have been taken out from the shutter. If the key has been taken out from the shutter, it shall be presumed that the shutter was locked. Then a private lock was also put in the Kunda of the locker by the complainant. It is admitted case that the said lock was in order. Then how on 25.7.1998 the locker was seen opened and was protruding has not been explained? The strong room is the safest place of the Bank. This is not open to public walking or sitting or amusement. ONly authorised person can enter in the said strong room. Then how it so happened has not been explained by the Bank? What is the natural presumption is a matter to be presumed but what is the actual evidence by the complainant or the Bank on this subject is not there. The complainant says that it should be presumed that the Bank Officials were negligent because it was their duty to protect this locker. The opposite party/Bank says that there was negligence of the complainant in not properly locking the shutter. That can be explained only by production of witnesses for thorough interrogation and examination. Both the parties should have led their expert evidence on the subject but we find that there is absolutely no expert evidence. A mechanic of Indian Stores Appliances cannot said to be an expert in the matter. The case is such in which high quality expert evidence should have been produced because the Bank should also not be left unpunished if it has been negligent as alleged by the complainant.

THE learned Counsel for the complainant also referred a number of rulings to show that Bank officials were guilty. If the Bank Officials were guilty of negligence, they were to make the loss good to the complainant. We cannot disagree with the finding but there should be proper evidence on this subject. THE negligence as well as the loss should be proved by cogent evidence. We set aside the factual findings as given by the learned Forum because it may affect the case of the parties if any civil suit is filed but from the discussion above, which should not be treated as expression of opinion on any of the points as involved in the case, we find that there is no sufficient evidence before us to give any relief to the complainant. The case requires elaborate evidence on the disptues about the alleged negligence of the parties and adequate evidence also on the valuation of the ornaments and this elaborate evidence can be taken only in regular trial, therefore, we have got no option but to dismiss the appeal with a finding that the complainant can approach the Civil Court for ventilation of his grievances. ORDER The appeal is hereby dismissed. However, the complainant is at liberty to file the civil suit in the appropriate Court of jurisdiction and in the event any such suit is filed, the findings, observations and opinion as recorded by the learned Forum or this Commission shall not be treated as an expression of opinion on any of the points or disputes involved in the case. Cost of this appeal shall be easy. Appeal dismissed.