PARMOD KUMAR JAIN vs ALLAHABAD BANK

THIS judgment will dispose of the following five appeals : (1) First Appeal No. 551 of 2006 (Parmod umar Jain & Ors. v. Allahabad Bank and Anr.). (2) First Appeal No. 383 of 2006 (Allahabad Bank & Another v. Parmod Kumar Jain & Anr). (3) First Appeal No.552 of 2006 (Sangita Gupta & Ors. v. Allahabad Bank & Anr); (4) First Appeal No.385 of 2006 (Allahabad Bank & Anr. v. Mrs. Sangita Gupta & Anr). (5) First Appeal No.384 of 2006 (Allahabad Bank & Anr v. Bakshish Singh & Anr).

SO far as appeals at Serial Nos. 1 and 2 (FA Nos. 551 and 383 of 2006) are concerned, both have been filed against the same judgment of the District Forum, Ludhiana dated 21.12.2005. Parmod Kumar Jain and another has filed First Appeal No. 551 of 2006 for enhancement of compensation awarded by the District Forum whereas First Appeal No. 383 of 2006 has been filed by the Allahabad Bank for setting aside the impugned order of the District Forum. Appeals at Serial Nos. 3 and 4 (i.e. First Appeal Nos. 552 and 385 of 2006) have been filed against the same judgment of District Forum, Ludhiana dated 21.12.2005. Mrs. Sangita Gupta and another have filed First Appeal No. 552 of 2006 for enhancement of the compensation awarded by the District Forum, whereas the Allahabad Bank has filed First Appeal No. 385 of 2006 for setting aside the order of the District Forum. First Appeal No. 384 of 2006 has been filed by the Allahabad Bank against Bakshish Singh for setting aside the order of the District Forum, dated 21.12.2005. The cross-appeal (i.e. First Appeal No. 412 of 2006) filed by Bakshish Singh for enhancement of the compensation awarded by the District Forum already stands dismissed by this Commission vide order dated 26.4.2006. Since in all these cases the facts are almost the same as also the law point, these are being disposed of by this common judgment. In all these cases, the complainants had hired lockers in Allahabad Bank and it was alleged that there was a burglary in the Bank and the burglars had broken open 8 lockers after breaking open the strong room of the Bank. The Bank had got registered a case with the Police. All the complainants alleged that they had kept jewellery articles, etc. in the locker and it was because of the negligence of the Bank that the complainants had suffered loss. It is not necessary to state any further facts.

On the basis of the evidence adduced by the parties the complaints were allowed by the District Forum on 21.12.2005. The concluding portion of the order of the District Forum in First Appeal No. 551 of 2006 is reproduced below: "11. In view of our above discussion, the complaint is accepted and the respondent Bank is directed to pay Rs. 15,000 to the complainant towards compensation on account of the deficiency and negligence. However, the complainant would be at liberty to file a complaint in the Civil Court for the recovery of the amount towards cost of jewellery, etc. Compliance of the order be made within one month of the receipt of copy of order. Copy of order be supplied to the parties. File be completed and consigned to the record room."

In fact, in all these cases same relief was granted.

LEARNED Counsel for the appellants, i.e., Allahabad Bank, submitted that in such cases, as the present one, the District Forum cannot go into the details as to whether the complainants had actually kept the valuables of particular value in the locker. Strict proof has to be there on the file for which the complainants are required to lead detailed evidence. That can be done only by filing a case before the Civil Court. He cited a judgment of this Commission in First Appeal No. 1400 of 2000, Madan Lal Chawla & Anr. v. Central Bank of India & Others, II (2006) CPJ 260, decided on 31.10.2005. After detailed discussion in that judgment and relying on the judgment of the National Commission in UCO Bank v. R. G. Srivastva, 1996 (1) CPR 97, which had reversed the judgment of the Delhi State Commission in R.G. Srivastava''s case, II (1994) CPJ 647, it was held by this Commission that in such cases the complainants should be left to seek their remedy before the Civil Court. In R.G. Srivastava''s case (supra), the Delhi State Commission had awarded Rs. 2,16,500 along with interest to the complainant. That judgment was reversed by the National Commission by observing as follows: "7. The State Commission, Delhi, after taking into account all the contentions made by the parties, considered the question as to whether the locker was left open on account of negligence on the part of the complainant. The State Commission particularly noted clause No. 10(1) of the instructions which provides that the custodian should inspect the locker soon after it has been used by the hirer to find out whether the locker has been properly closed and no article has been left outside inadvertently. They also noted Clause 10(2) which provides that if the hirer departs leaving his locker wide open or closed but not locked, he should be called to the bank immediately with the key and check the condition of contents of the locker. The hirer should also give a statement in writing to that effect and the customer should be advised in the matter. The State Commission further noted another Rule which enjoins upon the Custodian of the Bank to give certificate daily that all the lockers operated during the day have been checked by the concerned official and that they were found properly locked. In this regard the State Commission followed the decision given by this Commission in Punjab National Bank, Bombay v. K. B. Shetty, 1991 -(II) CPR 633. As no certificate of the custodian on the 11th February, 1992 to the effect that all the lockers have been checked and found properly locked, was produced by the Bank before the State Commission, an adverse inference was drawn by them against the Bank, and it was assumed that the locker had been duly locked by the complainant. While agreeing that it was the primary duty of the complainant to check the locker, after operating the same, the State Commission have opined that it was also the duty of the custodian to see that the locker was locked by the hirer after it had been operated by him. The State Commission have also taken a view that the lockers remained in the custody of the Bank and it is for the official of the Bank to show that the locker was found open after two months during which period Shri Srivastava did not visit the Bank. The State Commission, taking these circumstances into account, concluded that this locker was opened by some person on or about the 18th April, 1992 due to the negligence of the Bank officials. The State Commission also did not accept the view that the relationship between the hirer of the locker and the Bank is that of lessor and lessee.

Having decided that the locker was broken open because of negligence of the Bank, the State Commission went into the question of the value of the jewellery kept therein and accepted the affidavit of Shri Srivastava, excepting the item of 4 Karas which Shri Srivastava stated that he had brought from Banaras to be kept in Delhi. On the basis of the affidavit the State Commission accepted that the following items of jewellery were in locker No. 729 before it was found open empty: Old gold jewellery : 300 grams (Known as Kaeadkani Waist Chain - one) Old gold necklace : 200 grams Accepting the plea of Shri Srivastava and taking the value of the gold as on the 26th January, 1994 at Rs. 4,530 per 10 grams, as published in the Hindustan Times of that date, calculated the total value at Rs. 2,16,500 and directed the Bank to pay to Shri Srivastava this amount with interest at the rate of 15% from the 18th April, 1992 till the payment, within a period of three months failing which action shall be initiated against the Bank under Section 27 of the Consumer Protection Act, 1986. 9. It is against this order of the Delhi State Commission that the UCO Bank is in appeal before us. We have gone into the facts of this case carefully, perused the record and heard the Counsel for the Bank and respondent-complainant, who appeared in person, at length. We in this case are not going into the question of relationship between the Bank and the hirer of the locker. The fact of the locker being found open and empty is an admitted one along with the fact that it was last operated on the 12th February, 1992 whereas it was found open empty on the 18th April, 1992. The question of determination as to whether it was left open by Shri Srivastava or was broken open by some one else later, requires examination of detailed evidence. Also, we are, therefore, of the considered view that both these questions, namely, the responsibility for the locker having been left opened or broken open and the value of jewellery kept therein can be satisfactorily determined only in a civil suit in a competent Court after adducing of elaborate evidence on both sides. We, therefore, accept First Appeal No. 181/94 and dismiss First Appeal No. 182/93, set aside the order of the Delhi State Commission and dismiss the complaint. The Bank, however, has given an undertaking before us that question of limitation would not be raised by them in the civil proceedings if and when they are instituted by the complainant. There will be no order as to costs."

Learned Counsel for the complainant cited a judgment of the National Commission in Canara Bank v. Agnes D''mello, I (2006) CPJ 8 (NC)=2006 (1) CPC 233, that the complainant was entitled to receive compensation apart from the fact that the earlier judgment in R.G. Srivastava''s case was not considered by the National Commission in Agnes D''mello''s case (supra). Moreover, in that case, the National Commission was of the view that there was sufficient evidence on the record to come to the conclusion as to what was the loss to the complainant. In this view of the matter, following the National Commission''s judgment in UCO Bank v. R.G. Srivastava (supra), we allow the appeals of the Allahabad Bank, i.e. First Appeal Nos. 383, 384 and 385 of 2006 and set aside the orders of the District Forum, Ropar with a liberty to the complainants to approach the Civil Court for redressal of their grievance. Amount deposited by the appellants while filing the appeals may be refunded by way of crossed Bank Draft/Cheque after 45 days.

IN view of what has been observed above, the appeals filed by the complainants, (i.e. First Appeal Nos. 551 and 552 of 2006) are dismissed. There will be no order as to costs in all these appeals. The orders were reserved on July 20, 2006. Be communicated to the parties. Appeal Nos. 551, 552/06 dismissed. Appeal Nos. 383, 385/06 allowed.