UNION BANK OF INDIA vs KANAK CHOUDHARY

THIS is an appeal against the judgment and order 18.11.1999 passed by District Consumer Forum, Saharanpur in Complaint Case No. 305/1999.

THE facts of the case stated in brief are that the complainant had taken a locker in 1993 from the opposite party, Union Bank of India, Meerut Cantt. Branch, called Station Branch. THE rent of the locker was paid by the complainant regularly. THE complainant used to keep jewellery and valuable securities in the locker. On 3.6.1998 the complainant No. 1 went to the Bank for opening her locker and on opening the locker, she found that there were white ants in the locker and valuable securities were damaged. This fact was brought to the notice of the Bank but the Bank Authorities did not give any satisfactory reply. On account of the white ants the complainant suffered a loss of Rs. 20,000/- and Rs. 11,000/- in getting prepared the duplicates of the valuable certificates. A sum of Rs. 31,000/- has been claimed as damages. The opposite party in their written statement alleged that there was a locker allotted to the complainant in the Bank, but it was contended that there was no attack of white ants in the locker. It cannot be said as to what was kept in the locker by the complainant. It was further alleged that on 3.11.1994 the locker was not opened in front of the opposite party. The opposite party did not see any currency notes. One of the locks of the locker was opened by the officials of the Bank and thereafter he left that place and the locker is opened by another key kept with the lessee of the Bank. At the time when the Bank official opened the lock, no white ant was found. It is not possible that the white ants will enter the locker because it is not possible from any angle. It is further alleged that currency notes cannot be kept in the locker which is against the public policy and rules of the Bank also. The ornaments cannot be damaged by the white ants. There is no question of damage to the jewellery and valuable securities and currency notes. It is further alleged that the opposite party/appellant keep the locker in tip-top condition and there is no attack of white ants in the premises of the Bank. The Bank is not liable to pay any interest or compensation to the complainant. When the complaint was received from the complainant on 3.6.1998 the locker was got checked and it was found that there was no white ants.

Learned District Forum, after considering the arguments of the parties and perusing the evidence on record, came to the conclusion that the valuable securities and currency notes were destroyed by the white ants and it decreed the claim of the complainant for a sum of Rs. 21,000/- and a sum of Rs. 2,100/- as cost. It further directed that the amount shall be paid within a period of one month from the date of the order. If it is not paid, then interest at the rate of 12% per annum from 6.5.1999 till the date of payment. A sum of Rs. 200/- was also awarded as damages to be levied from Sri Markanday, Manager.

AGGRIEVED against this order of the learned District Forum, the Union Bank of India has come in appeal and has challenged the correctness of the order. We have heard the learned Counsel for the parties. The first question which arises for consideration is whether there was any attack of white ants in the locker as alleged by the complainant or not. The learned Counsel for the Bank argued that there was no question of white ants entering into the lockers as there was no attack of white ants in the building of the Bank. Learned Counsel has further argued that when the complaint was received from the complainant about the incidence of white ants in the locker, a check was made and found that this complaint was not correct. A perusal of the facts will show that when the complaint was received on 3.11.1998, no attempt was made by the Bank Authorities to check the locker in the presence of the complainant. It is an admitted fact that a complaint was made on the same date on which the locker was opened by the complainant. In the letter which was written on the same date on which the locker was opened, it was mentioned that the ornaments, papers and currency notes worth Rs. 6,000/- has been damaged, but no officials of the Bank tried to confirm this fact at that time. The complaint was received by the Bank Manager. This letter was received by the Bank Manager and for the first time this fact has been denied by the Bank Authorities in their written statement which was filed on 3.7.1999. It was the duty of the Bank Authorities to have visited the locker room and should have got the locker inspected when the complaint was made to the Bank Manager. The attitude of the Bank Authorities in doing so amounts to deficiency on their part. If there was no white ants in the locker, this fact would have easily been confirmed had the Bank Authorities acted on the complaint immediately and deputed some official to visit the site of the locker in the presence of the complainant. The fact that whether any valuable securities or the currency notes were damaged by the white ants could have easily been seen by the naked eyes. Even the damage which has been caused to the jewellery could also have been noted. The damage which is caused to the jewellery is not in the form of gold eaten away by the white ants but a type of deposit is made on it and on other items which are kept in the Bank locker. A mud-like deposit is made on the ornaments by the white ants.

A perusal of facts will go to show that the Bank Authorities called for a Pest Control team from Modinagar on 3.6.1998 but the inspection of the locker was got done after the complainant had left the premises. If any inspection was to be got done of the lockers in vicinity, should have been done in the presence of the complainant. This certificate which has been issued by the Pest Control team of Modinagar carries no weight. The Bank Authorities have also filed letters of two other allottees of the Bank lockers. These letters are dated 16.4.1999 and 15.4.1999 which are of 10 months later period. These two letters also do not mitigate the deficiency of service of the Bank because no such inspection was made by these persons of their lockers in presence of the complainant. Moreover, the inspection which was done after 10 months would have been a useless one because the fact has to be established at a time when the incident has taken place and not after a lapse of 10 months. The learned District Forum has also rightly pointed out that the copy of the registers, in which the signatures are obtained of the allottees of the lockers, when these lockers are actually operated by these persons on those days, has also been filed from 30.5.1998 to 12.6.1998. The learned District Forum has mentioned that there are certain discrepancies in the entries. It is a fact that currency notes worth Rs. 56,500/- were kept in the locker as alleged by the complainant but the complainant has claimed a sum of Rs. 11,000/- only under this head. This shows the bona fides of the complainant otherwise, he could have claimed damages of the entire currency notes of Rs. 56,500/-. The affidavit on this point filed by the complainant has not been rebutted by any Bank officials. The complainant had deposited the damaged currency notes before the District Forum and the Forum has found damages to those currency notes. It has been argued that the currency notes could not have been kept in the locker. In India it is a usual practice to keep currency notes in the locker. No rules or law has been shown or placed before us which may go to show that keeping of currency notes in the locker is against the provisions of any law or rule. There is no bar in keeping any documents or even currency notes in the locker, besides the ornaments. The person who takes the locker on hire can keep such articles in the locker which he wants to have in safe custody. Before the locker was operated on the date of incidence, it was operated in the month of April and May, 1998, but on those occasions the complainant did not give any complaint about the presence of any white ants. According to the complainant he had taken this Bank locker on hire in the year 1993. If the complainant had bad intention, then he could have claimed damages in the earlier year also. Thus these facts go to show that the claim had been put forward by the complainant in a bona fide manner and there was no intention of the complainant to have lodged a false claim against the Bank Authorities merely to realise Rs. 31,000/-.

THE learned District Forum has considered the case from every angle in detail and has come to a right conclusion that the damage was caused as alleged by the claimant to the contents kept in the locker by the attack of white ants.

LEARNED Counsel for the appellant has argued that the allegation that there was an attack of white ants in the locker and there was damage to the contents of the locker cannot be contested in these summary proceedings and the complainant should be asked to file a suit in a Civil Court. For this purpose he has placed reliance on the case of UCO Bank v. R.G. Srivastava, 1986-96 National Commission & SC on Consumer Cases 2903 (NS). In this case it was held by the National Commission that if the Bank locker is found empty when it is opened, then the question of determination as to whether it was left open by the complainant or was broken open by someone else later, requires examination of detailed evidence about this fact and about the valuation of the jewellery etc. kept in the locker. According to National Commission this can be decided by a competent Civil Court where elaborate evidence is to be recorded. This ruling does not apply to the facts of this case. Here the locker was not found open but it was found by the complainant when opened that there was attack of white ants which caused damage to some of the articles kept in the locker. Moreover no copy of written statement was filed by the Bank in order to show that this plea was raised before the learned District Forum. From the perusal of the learned District Forum''s order, we find that there is no discussion of any evidence on this point by the learned District Forum. Thus we conclude that this plea was not taken by the Bank Authorities before the learned District Forum and it cannot be allowed to be raised for the first time before this Commission. Moreover already indicated above, this case law relied upon by the learned Counsel for the appellant does not apply to the facts of the case. We find a sum of Rs. 500/- has been imposed as damages on the Bank Manager Sri Markandaya. We do not find any justification for imposition of this fine. We, therefore, set aside this portion of the order of the learned District Forum. The rest of the judgment of the learned District Forum deserves to be confirmed. The appeal is, therefore, liable to be allowed to the extent indicated above. Order The appeal is partly allowed to the extent that the amount of Rs. 500/- awarded against the Bank Manager Sri Markandaya is struck off. The rest of the judgment and order of the learned District Forum are confirmed. The appellant shall pay Rs. 2,000/- to the complainant as cost of this appeal. Let compliance of this order be made within a period of two months from the date of this order. Let copy as per rules may be made available to the parties. Appeal partly allowed.