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Judgment
The complainant / respondent which is stated to be a partnership firm, though described wrongly as a Limited company in the complaint, had an account with the petitioner bank. On 12.4.2012, one Nirmalendu Das, Head Accountant of the complainant went to a Hatibagan Branch of the petitioner bank to deposit a sum of Rs.2,25,000/-. He submitted the requisite pay-in-slip and serial No.44 was allotted to him. He stood in the queue in front of the cash counter waiting for his turn to deposit the said amount. When his turn matured, someone, playing a trick upon him, told him that a few currency notes had fallen from his pocket. When he was searching the aforesaid notes, the amount of Rs.2,25,000/- was allegedly stolen form the window of the cash counter. A complaint was lodged at the concerned police station but the said amount could not be recovered. Alleging that the loss had happened due to inadequate security provided by the bank, the complainant approached the concerned District Forum by way of a consumer complaint, impleading the bank as well as the insurer Bajaj Allianz General Insurance Company Ltd.
The complaint was resisted by the petitioner bank on several grounds, including that the account of the complainant being a cash credit account, it was not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. On merits it was alleged that the theft had not taken from the cash counter of the bank and therefore, it was not responsible for the loss suffered by the complainant.
The District Forum vide its order dated 24.12.2013, allowed the complaint and directed the bank to pay an amount of Rs.2,12,450/- to the complainant, along with interest. The bank was also directed to pay damages quantified at Rs.25,000/- to the complainant. The insurer was directed to pay a sum of Rs.12,250/- to the complainant.
Being aggrieved form the order passed by the District Forum, petitioner bank approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner is before this Commission by way of this revision petition.
The first question which arises for consideration in this case is as to whether the cash was stolen from the possession of the bank or from the possession of the representative of the complainant. Though the case of the complainant is that the theft was committed from the cash counter, the manner of the incident which took place in the branch on 12.4.2012 rules out in reasonable possibility of the cash having been stolen from the cash counter of the bank. According to the complainant, the miscreant told its representative Mr. Nirmalendu Das that some notes had fallen from his pocket and when Mr. Nirmalendu Das started looking for notes, the theft was committed. Had the cash been already given by Mr. Nirmalendu Das to the cashier of the bank, the miscreant would not have played the aforesaid trick on him since playing the trick on him, after the cash had already been handed over by him to the cashier across the counter, would have served no purpose of the trickster. In the ordinary course of the human conduct, the miscreant would have played the aforesaid trick on Mr. Nirmalendu Das at the time when he was still in the queue waiting for his turn to mature, so that by diverting his attention, he was able to commit theft of the cash which he was carrying for depositing in the bank.
Admittedly, the theft was reported by the complainant to the concerned police station. A perusal of the report submitted by the officer incharge Shyampukur Police Station, before the concerned District Forum on 07.11.2012, shows that the theft was committed ''in front of the cash counter'' of the bank and not from the said cash counter. The aforesaid report clearly falsifies the case of the complainant that the theft had taken place form the cash counter of the bank. Since the cash was still in possession of Mr. Nirmalendu Das when it was stolen, the bank cannot be held liable for the said loss. Though, the complainant has claimed that the adequate security was not available in the branch, it has not been able to substantiate the said allegation. There is no evidence of any rule or norm with respect to the security in the branch having not been followed by the petitioner bank. In the absence of such a breach, it would be difficult to say that the bank was deficient in providing security in the concerned branch.
It was contended by the learned counsel for the complainant that CCTV footage was not produced by the petitioner bank, in order to support its case that the theft had taken place before the cash came to be deposited with the cashier. The aforesaid circumstance, in my view, would be irrelevant considering the police report and the attending circumstances as discussed hereinbefore. Since on merits the complainant does not succeed, I need not go into the plea that it cannot be said to be a Consumer, as defined in Section 2(1)(d) of the Consumer Protection Act.
For the reasons stated hereinabove, the impugned orders are set aside, the complaint is consequently dismissed. The revision petition is allowed with no order as to costs. The record of the District Forum be sent back.