Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Complaint No.247 of 2019
1- Umakant Awasthi, aged about 48 years, S/o Late
Jageshwar Prasad, R/o 22, Sanjay Nagar,
Machhriya Road, Near Hanuman Mandir,
Naubasta, Kanpur Nagar-208021
2- Sudha w/o Umakant Awasthi, R/o 22, Sanjay Nagar,
Machhriya Road, Near Hanuman Mandir,
Naubasta, Kanpur Nagar-208021 ....Complainants.
Versus
1- Union Bank of India, Branch Office,
At 81, Pashupati Nagar, Yashoda Nagar,
Kanpur Nagar-208011 through Branch Manager.
2- Union Bank of India, Regional Office,
117/H-1/240, Model Town, Pandu Nagar,
3- Union Bank of India, Head Office, Union
Bank Bhawan, 239, Vidhan Bhawan Marg,
Nariman Point, Mumbai-400021 through
CEO/Managing Director.
4- Reserve Bank of India, Head Office, Main
Building, P.O. Box 901, Shahid Bhagat Singh
Road, Mumbai-400001 through Chief
General Manager. ….Opp. Parties.
Present:-
1- Hon’ble Mr. Justice Ashok Kumar, President.
2- Hon’ble Sri Vikas Saxena, Member.
Sri Pramedra Verma, Advocate for complainants.
Sri Rajesh Chaddha, Advocate of OP no.1 to 3.
None for OP no.4.
Date 21.12.2022
JUDGMENT
Per Sri Vikas Saxena, Member- The complainant Akhilesh Shivhare opened a joint savings bank account bearing account number 5517020100000624 at branch Pashupati Nagar, Yashoda Nagar, Kanpur Nagar of Union Bank of India, the opposite party. As per the complainant the branch manager offered a locker facility to the complainants on nominal fees and promise to provide highly secured strong room equipped
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with modern technology security systems. On the assurance, the complainant applied for the locker facility and after fulfilling all the requirements and paying the requisite fees hired a locker facility at the branch office of the bank and got the locker number 17 (SC) and thus became a consumer of the opposite party. The complainant has affirmed that he kept all his ornaments, jewelry and other valuable things including ornaments of son and daughter-in-law in this locker. The opposite party Bank gave one key to the complainant and kept another key with them apart of the master key.
According to complainant he and his family members including wife, son and daughter-in-law holds no other locker in any of the bank in India except this locker.
Allegedly, on date 17/18.02.2018 midnight a theft was committed by some unknown miscreants where in 32 lockers were broken open by cutting them with a gas cutter and all valuables were taken away by them. The complainant alleged that all valuable things including items of jewelry, ornaments and other valuable things were stolen from this particular locker number 17 (SC) which approximately value Rs.19,49,860/-(Rupees nineteen lacs fourty nine thousand eight hundred sixty). List of those stolen articles has been mentioned in the complaint.
The complainant has alleged that the theft was committed by the unknown miscreant due to lack of proper security and inadequate safety measures taken by the opposite party/ Bank. The complainant lost all the valuables kept in the locker received by him and his family members from ancestors. It is further indicated by the complainant that the
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bank did not take adequate safety measures as per the normal duty of a bank as well as the measures provided in guidelines of Reserve Bank of India, as such no alarm was rang at the time of theft and no CCTV camera recorded the offence committed by the unknown miscreants. There was no guard in the bank to take care of the lockers and for security of the bank building and even the gun of the guard was kept in a safe custody. The wall of bank premises was only 9-10 feet high and is only 5 inch wide and also there was an open plot adjacent to the bank which made the premises and lockers therein unsecured and this situation, from where anyone can easily jump inside and it was against the guidelines of Reserve Bank of India.
The complaint alleges that the bank did not complied security audit report dated 0 8. 0 2. 2017, which directed the banks to build the wall on the North side and place sharp wires on it to enhance security, but nothing was done by the bank. 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. Beside modern electric and electronic security gadgets like CCTV alarm system sensor were not adequately provided in the bank.
According to the complaint a first information report was lodged at police station-Naubasta, Kanpur Nagar, thereupon the police apprehended 11 culprits out of 13 who alleged to have been committed the theft. Police also recovered some stolen articles from them including items of jewelry, ornaments i.e. In total 4.1 55 kg of gold and 18 kg of silver was recovered and as per the list provided to police
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station by the complainant only 25% of stolen articles were handed over to him. The list of 27 articles recovered and handed over to him is given in the complaint.
The opposite parties of the complaint filed a written statement where in it is said that the complaint is frivolous and baseless and there is no evidence to demonstrate any deficiency in service on part of the bank. The complainant had taken a locker at Yashoda Nagar branch of the bank on lease by entering into terms and conditions of a memorandum of safe, therefore the relationship between the complainant and the bank is of lesser and lessee and not of a Banker and customer. The complainant has not made any grievance to it regarding violation of any condition of this memorandum by the bank and as such there is no deficiency in service by them. It is also stated that a criminal complaint has been filed and a competent criminal Court is seized the jurisdiction of entire matter therefore, the state Commission has no jurisdiction to decide this matter. The complainant /the leasee has kept his articles at his own risk and the bank is not under liability for any articles. The bank has no access to the locker, they neither kept any key nor had any knowledge as to the contents of the locker. It is also said by the opposite party that the alarm system in the bank was fully operative and the bank has standard security arrangements. Besides, the bank forth with brought to the information of burglary to the police by lodging an FIR on 19. 0 2. 2018. The bank has assigned the job of security to a company for maintenance of security system. The said company conducted survey of the branch and submitted survey reports on date 07.07.2017 and on date
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06.07.2018 which itself demonstrate that the bank did all necessary things to upkeep the maintenance and security of the branch. In the investigation of the theft the police did not held any of employee of the bank responsible for the alleged
theft in a bank, no case of any deficiency in service made out on part of the bank. There was no laches on the part of bank in maintaining the security in the bank which had all security and surveillance of CCTV cameras and other security and safety facilities.
The complainant has a list of stolen articles items of jewelry and ornaments, which is denied for want of knowledge as the bank has no access to any item. The complainant without any basis alleged that the gun of the guard was lying in the strong room, on the contrary the bank do not have any gun of its own and private Guards were deployed through security agencies to take care security of the bank. The alleged theft by the unknown miscreants was an unfortunate incident beyond the control of the bank but the bank was not negligent in any manner.
It is further stated that the keys of the strong room where intact kept in safe custody but that miscreants broken the strong room by help of gas-cutter and lockers were also broken by it. The complainant has wrongly alleged that the adjacent wall of the bank was only 9-10 Feet high and 5 inch wide and there was no open plot adjacent to the bank and all these allegations are false. The bank was maintaining all security arrangements as per guidelines of Reserve Bank of India. It is also wrong to allege that there was no security guard in the bank, the security guard was deployed and was having responsibility of ATM security. The AC window in
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the bank was supported by Iron rods and it was not easy to remove it easily. There is no cause of action accrued against the bank in respect of alleged theft and no case is made out to find this complaint the complaint is liable to be dismissed.
We have heard ld. Counsel Shri Pramendra Varma, Adv. On behalf of the complainant and Shri Rajesh Chaddha, Adv. On behalf of the opposite parties/ Bank and perused all the material on record. Our findings on the complaint are as below:-
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. After the alleged theft an analysis report was submitted vide letter dated 24. 0 2. 2018 by Inspector general Police of Kanpur to Director General police Uttar Pradesh Luck now a copy of the said report is on the record. It is revealed from the report that the police also found security lapses on the part of the opposite party Bank. The report gives 6 points of instances by which the report pointed out lapse of security on the part of bank which the inquiry officer found in this incident of theft. These were:-
- The access to the bank premises were too easy to creep into, as just adjacent to the building there is a vacant plot and the wall of the bank near this plot was only 9-10 Feet high and only 5 inch wide.
- On the first floor of the building a coaching center is running, from where anybody can enter into the building of the bank.
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- The window of air conditioner is covered with a very thin grill of iron which can be easily cut.
- The security guard remained absent in night and on holidays.
- CCTV cameras were installed at improper places and alarms were not working.
- No local arrangement of security were made, hence, the miscreants selected night of Saturday / Sunday for cutting the lockers.
On perusal of pleadings of both the parties and the aforesaid police report of Inspector General of Police Kanpur, 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, therefore, the opposite party/ bank committed deficiency in service. The complainant has sought the relief of total value of the articles which he alleges those were kept inside the said locker. Now the question before us is as to whether the bank is liable to compensate the complainant the entire value of the articles allegedly kept inside the locker by the complainant or adequate damages can be given to the complainant for the deficiency in service in providing locker service to the complainant by the bank under the provisions of the consumer protection act 1986. The entire value of the articles can be given to the complainant by this Commission if he is able to prove this fact that all the articles, which he claims, were actually kept in the locker by him and his family members. In particular, if legally it is established that the movable property kept inside the locker was in
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possession of the bank as ‘bailment’, as defined in Indian Contract Act, 1876.
This question was considered elaborately by honorable Apex Court in recent judgment Amitabh Das Gupta versus United Bank of India and others reported in II (2021) CPJ page 3 (SC) in this case before Hon’ble 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. 1-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 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 Hon’ble Supreme Court considered following points in the final appeal —
- 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?
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- Whether the same can be effectively adjudicated in the course of consumer dispute proceedings?
- Whether the Bank owes an independent duty of care to ts customers with respect to diligent management and operation of the locker, and compensation can be awarded for noncompliance of such duty?
Having Followed the judgment of Hon’ble 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 hon’ble 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 couldonly 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
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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 judgments of Hon’ble High Courts and hon’ble NCDRC, New Delhi, the Hon’ble 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.
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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 claiming ignorance of the contents of the lockers.”
On of perusal of the facts of this case we find that the facts of the case before Honorable 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 complainant. Pursuing the judgment of Hon’ble Apex court
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we are also 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 complainant is claiming to be kept inside the locker as there is no evidence of these except the statements of the complainant himself. 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 complainant. We find damages of Rs.10,00,000/- (Rs. Ten Lakh), is adequate in this particular case, keeping in account the recoveries so far made by the police, which in a way substantiate the versions of the complainant that he lost a considerably big hard-earned and inherited wealth in the incident. In this way the complaint is fit to be partially allowed.
ORDER
The Complaint is partially allowed, opposite party Bank is directed to pay damages Rs. 10,00,000/- ( Rs. Ten Lakh) within one month to the complainant for deficiency in service in maintenance of locker and taking security measures, After one month 9% interest shall be payable, in case of non- payment. The complainant is also entitled to receive Rs.50,000/- as Costs of the complaint from the opposite party.
The stenographer is requested to upload this order on the Website of this Commission today itself.
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Let certified copy of this judgment be provided to the parties as per rules.
(Justice Ashok Kumar) (Vikas Saxena)
President Member
JAFRI (V)
PA1
