Punjab National Bank, Bombay.         ...  Appellant
Vs.
K.V.Shetty                                       ...  Respondent
 

                                            ORDER

Y.KRISHAN, MEMBER.

          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 till the payment of the amount besides Rs.1,000/- as costs.

          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 forebear to entertain a complaint  under the Consumer Protection Act in the same case.  Such a course of action is essential to avoid conflicting finding 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 in as much as the reliefs obtainable and the parties which can obtain reliefs are entirely different. There is no question of granting reliefs as provided in sec.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.

          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 ornament 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 ornament 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.S.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 nationalised 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 land-lord and a tenant, bank being the land-lord and the locker holder being the tenant.  It was also specifically agreed that the Bank (Lessor) would bot 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 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 land-lord 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 land-lord 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 land-lord 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.

          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, emphasised that the Bank officials were not guilty of any negligence in as much 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 valuers 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. 

     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 also accepted the value of those ornaments and have, therefore, observed that the claim of the complainant 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 Mrs. 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 as 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 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 the day have been checked  and found properly locked.  Such a certificate was also recorded on the 21st April 1988.  The State Commission, therefore, came 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 unauthorisedly.  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.