Licensed to :- Ankur Rastogi

LAWS(NCD)-1991-8-32

NCDRC

Coram : V.BALAKRISHNA ERADI, A.S.VIJAYAKAR, Y.KRISHAN, B.S.YADAV JJ.

Decided On : August 06, 1991

Appeal Type : First Appeal No. 7 of 1991

Appellant(s) :

Punjab National Bank Bombay

Respondent(s) :

K B Shetty

Equivalent Citation :

LAWS(NCD)-1991-8-32, CPJ-1991-2-639, CPR-1991-2-633, CPC-1991-0-592, CLT-1993-

Cited Judgement(s) :
- Madan Lal Chawla Vs. Central Bank Of India, [LAWS(PUNCDRC)-2005-10-2] [Referred To]
- Vivek Agrawal S/O V K Agarwal And Ors Vs. Indian Overseas Bank And Ors,
[LAWS(RAJCDRC)-2010-5-8] [Referred To]
- Vivek Agrawal Vs. Indian Overseas Bank, [LAWS(RAJCDRC)-2010-5-1] [Referred To]
- Uco Bank Vs. R.G. Srivastava, [LAWS(NCD)-1995-1-97] [Referred To]
- Raj Kumari Vs. Ghaziabad Development Authority, [LAWS(NCD)-2000-12-101] [Referred]
- Parmod Kumar Jain Vs. Allahabad Bank, [LAWS(NCD)-2006-7-135] [Referred]
- Four Ways Travel & Tours & Anr Vs. M K N Nagamanickkam, [LAWS(NCD)-1995-11-79]
[Referred]
Referred Act(s) :
- Consumer Protection Act, 1986, S.14

Judgment :

Y .KRISHAN

(1.) In this case the State Commission by its order has directed that the appellant here and the
Opposite Party before the State Commission, should pay to complainant Rs. 1,26,017/ - on account
of the loss of ornaments which had been kept in the locker hired from the Appellant by the wife of the
Respondent with interest at the rate of 18 per cent per annum from 21.4.1988 all the payment of the
amount besides Rs. 1,000/ - as costs.

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The Appellant Bank has appealed against the Order of the State Commission. The various
grounds of attack against the Order are discussed below :

The Appellant Bank has submitted that the Respondent complainant has filed a criminal
complaint against various officials of the appellant Bank who has been impleaded as a party alleging
negligence on their part before the Metropolitan Magistrate. This complaint is under investigation by
the police and the C.I.D. as such, it is contended that, the matter is sub judice and therefore the
Consumer Redressal Forums cannot simultaneously adjudicate upon such a matter.

We see no merit in the objection taken by the Appellant in this regard. This Commission
has adopted, on its own, the rule of prudence that when a case is already sub judice, it will forbear to
entertain a complaint under the Consumer Protection Act in the same case. Such a course of action is
essential to avoid conflicting findings by different judicial and semi -judicial forums. It also obviates
multiplicity of trial on the same cause of action. However, this is not true in this case, where the case is
sub judice in a criminal Court inasmuch as the reliefs obtainable and the parties which can obtain
reliefs are entirely different. There is no question of granting reliefs as provided in Section 14 of the
Consumer Protection Act, 1986 by the Metropolitan Magistrate. Consequently it cannot be maintained
that the complaint could not be entertained by the State Commission on the ground that the case was
sub judice being under investigation by the Metropolitan Magistrate.

(2.) THE second ground of attack on the appeal is that the husband of the Respondent Complainant
Mr. K.V. Shetty has no locus standi. The locker was last operated by the wife of the Respondent -
Complainant and the ornaments said to have been lost, also belonged to her. According to the
appellant the husband of Mrs. Shetty who did not operate the locker and did not own the ornaments
has no locus standi in this case. The State Commission was therefore not competent to grant relief to a
person who is not a party in the claim petition.

The locker was hired (leased) to both Mrs. V.B. Shetty and Mr. K.V. Shetty. So, as a joint
lessee, Mr. K.V. Shetty has locus standi.

We are also not impressed by the highly technical argument of the appellant. We, therefore,
reject this contention of the appellant against the decision of the State Commission. This Commission,
cannot, however, resist observing that it did not expect a nationalized bank to take such highly
specious and technical objections to defeat the Complaint. In Indian conditions women may be
illiterate, educated women may be unaware of their legal rights and to insist that the husbands cannot
file and prosecute complaints under the Consumer Protection Act, 1986 on behalf of their spouses will
deprive millions of consumers of the benefits of this legislation.

Another ground of attack in the appeal is that lease of the locker was in the nature of an
agreement between a landlord and a tenant, Bank being the landlord and the locker holder being the
tenant It was also specifically agreed that the Bank (Lessor) would not be liable for any loss which
might occur to the lessee so far as the contents of the locker are considered.

This Commission feels distressed to observe that the appellant should never have raised

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such a specious plea. The leasing of a locker in the custody and control of the Bank and which is also
responsible exclusively for its security, does not and cannot create the relationship of landlord and
tenant between the Bank and the locker holder. The character of an agreement has to be determined by
its contents and its true nature cannot be altered by agreement among the parties. Again the parties
cannot be relieved of their obligations under the agreement by merely changing the name of the
agreement as being between a landlord and a tenant. In fact, the appellant could not have contracted
out of his responsibilities in relation to the locker by describing the agreement as that of between
landlord and tenant. It appears to be tour de force on the part of the appellant to seek release from its
obligations under the locker agreement

(3.) THE next ground of attack is that an opportunity to cross examine the respondent complainant
regarding the value of the ornaments lost was not given to the appellant by the State Commission. He
has also stressed that there is no evidence of the value of the ornaments lost by the respondent
complainant and that the State Commission was not justified in relying on untested evidence regarding
the value of the ornaments lost and that the State Commission denied the appellant Bank opportunity
to cross examine the complainant. The appellant has therefore, emphasized that the Bank Officials
were not guilty of any negligence inasmuch as the locker was opened by the lessee, the locker holder,
the locker was locked exclusively by the locker holder with the key in her possession though it can be
opened only with the help of the Master Key in the possession of the Bankers; that the respondent
complainant had not produced any evidence regarding the gold ornaments actually kept in the locker
before or after 21st April, 1988, the date on which the locker was last operated, that the valuation of
the ornaments claimed to have been lost by the respondent complainant by values appointed by the
Government of India on the 10th March, 1988 is no proof of the ornaments kept in the locker and that
they were the same ornaments which were lodged in the locker. In short, the appellant Bank has
suggested that it was a case of conspiracy hatched with an intent to defraud the Bank.

(4.) WE find that the State Commission has examined these points at length taking into account the
reservations of the appellant Bank whether any ornaments were actually kept in the locker on
21.4.1988, which are said to have been stolen and the proper value thereof. That Commission has
taken cognizance of the affidavit filed by Mrs. V.B. Shetty and believed the same. They have further
accepted her statement about the items of ornaments she had kept in the locker. They have also
accepted the value of those ornaments and have, therefore, observed that the claim of the complaint
regarding the ornaments lost in the locker and their valuation cannot be disputed. It is also noted that
no request was made by the Bank to the State Commission to cross -examine Mr. Shetty and this
Commission cannot allow this plea to be raised at this stage.

The last and the most important question is whether the appellant Bank has been guilty of
negligence in ensuring the security and safety of the locker. The State Commission has taken adverse
notice of the fact that the appellant Bank did not probe departmentally when the locker had been found
open on the 9th June, 1988 and treated the matter as closed so far as the Bank is concerned. It was
content with lodging a report with the police. It is a matter of common knowledge, the Master Key of

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the locker is with the Bank; the locker can be opened only with the Master Key and the Key with the
locker holder. The mechanism is, however, such that the locker must get closed, if the locker holder
takes out his/her key. Further, a certificate is recorded by the custodian of the Bank that all the lockers
operated during a day have been checked and found properly locked. Such a certificate was also
recorded on the 21st April, 1988. The State Commission, therefore, come to the conclusion that the
Bank was negligent, in ensuring the security of the locker with the result that it was found on the 9th
June, 1988 to have been opened unauthorized. For this the State Commission has held that the Bank is
squarely responsible and therefore liable to make good the loss suffered by the respondent
complainant. This Commission fully concurs with the findings of the State Commission. The appeal is
dismissed.

Considering the matter, the grounds on which the appellant has sought to fight the
complaint and claim for compensation of the respondent, it will be only just and fair that the appellant
pays Rs. 3,500/ - by way of costs to the respondent Appeal dismissed.

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