CDJ Law Journals

Sudip Ahluwalia, Member

1. This Complaint has been preferred as a class action by 28 Complainants who were holding 15 lockers in the Branch of Punjab National Bank (Opposite Party) at Kapda Mill, Modi Nagar, Ghaziabad, UP. The said locker facility was provided by the Opposite Party/Bank on payment of rent. The grievance of the Complainants is that the valuable goods, documents, gold jewellery and cash which were kept for safe custody in the respective Bank lockers was stolen in the intervening night of 11.06.2017/12.06.2017 for want of adequate security, proper upkeep of safety of the lockers and adherence to safety procedures on part of the Opposite Party. An FIR in respect of the theft was lodged on behalf of the Bank vide FIR No.399/2017 under Section 380, 457 IPC dated 12.06.2017. The Opposite Party, as such, is stated to be liable for paying compensation and making for the loss of the articles of the Complainants. It is also pointed out that the Opposite Party is required to maintain the lockers as per RBI guidelines, internal guidelines of PNB/ instructions mandated by UP Police which were found to be lacking during the course of investigation, and were adversely commented upon by the Police.

2. The infirmities noticed during investigation of FIR 434/2017 and 399/2017 as noted by the IO, SHO, Modi Nagar, Ghaziabad are further referred in this regard:-

                                "17. That the truth.............................below:-

                                i. The wall of the strong room of the bank, where the subject lockers were situated was 50 years old; was made of bricks against the norms of RBI which states that the wall of the strong room mandatorily required to be made of RCC (Reinforce Cement Concrete) with tin plates/sheets in between.

                                ii. The Wall of the bank was mere 5 inches in thickness (which means just one single brick Wall with plaster, which is normally the thickness of a partition wall). iii. There was no security guard employed by the Bank, despite repeated instruction by the SHO concerned and PS Modi Nagar.

                                iv. The lockers in question were very old and outdated and were not even company made. v. The security alarm was not functional.

                                vi. There was no confidentiality maintained by the staff of the bank qua the strong room as the staff of the bank often used to make video phone calls with unauthorised persons and used to upload videos of the bank premises, causing grave breach of secrecy, confidentiality and security. This act of making video phone call by the bank's staff is evident from the CTV recording of the bank (secured by the IO - SHO Modinagar).

                                vii. Most of CCTV cameras weren't in working condition."

3. A representation is stated to have been made by the Complainants to the Opposite Party Bank mentioning the list of valuables lying in the respective lockers and the valuation of the articles in the respective lockers is further specified in para 23 as under:-

Sr. No.	COMPNO. NAME LOCKER NO.	AMOUNT
1.	1 1(a) Anil Kumar Goel Sadhna Goel	Rs.59,45,000/-
2.
3.	2 2(a) Neelam Jain Bimla Jain	Rs.20,03,271/-
4.
5.	3 3(a) Manohar Lal Dua Raj Kumari	Rs.28,80,913/-
6.
7.	4 4(a) Mohan Lal Lakshmi Devi	Rs.24,87,865/-
8.
9.	5 Mukesh Goel 99	Rs.12,39,936/-
10.	6 6(a) 6(b) R.C. Sharma Suman Sharma Rahul Sharma	Rs.1,86,12,675/-
11.
12.
13.	7 7(a) Rekha Prabhakar Durgesh	Rs.52,40,718/-
14.
15.	8 8(a) 8(b) Sushila Devi Anuj Kr Sharma Sangeeta Sharma	Rs.15,94,343/-
16.
17.
18.	9 9(a) Davender Kr. Garg Geeta Garg	Rs.80,74,312/-
19.
20.	10 Satish Nehra 153	Rs.52,91,642/-
21.	11 Shiv Kumar Agrawal 109	Rs.13,56,180/-
22.	12 12(a) Shriram Mishra Poonam Mishra	Rs.16,39,545/-
23.
24.	13 13(a) Sudhir Kr Bhatia Rachna Bhatia 126	Rs.41,29,402/-
25.	14 Sushma Rani 114	Rs.54,89,102/-
26.	15 15(a) Suman Prakash Goyal
27.	Sudha Goyal 125	Rs.24,96,434/-

4. It is the further case of the Complainants that since they are bound to sign the Agreement in respect of availing of locker facility on dotted lines, any unjustified condition amounts to restrictive trade practice and shelter cannot be taken by the Bank/Opposite Party under any such Clause.

5. Since the Opposite Party failed to reimburse the losses suffered by the complainants, the present Complaint has been preferred as a class action claiming the following relief(s):-

                                "A. Direct the Opposite Party to pay damages/compensation @ Rs.20,00,000/- (Rs. Twenty Lakhs Only) to holder(s) of each locker i.e. including the complainant(s) and all other similarly placed consumers (locker holders - who are not party in the present complaint but victim of the same burglary occurred on 12.06.2017), towards the damages caused due to the deficiency in services/security and the negligent conduct of the bank in not adhering to the lockers security guidelines as suggested by RBI, OP's own internal guidelines and also advisory by UP Police.

                                B. Direct the Opposite Party to pay/reimburse the actual amount of loss suffered by each set of complaint/locker holders, due to the negligence and deficiency in security by the OP, details of amount of loss suffered by the complainants herein is as follows:-

                                i. Rs.59,45,000/- towards the reimbursement of actual loss suffered by Complainants No.1 & 1(a) i.e. joint holders of locker number 119.

                                ii. Rs.20,03,271/- towards the reimbursement of actual loss suffered by Complainants No.2 & 2(a) i.e. joint holders of locker number 100.

                                iii. Rs.28,80,913/- towards the reimbursement of actual loss suffered by Complainants No.3 & 3(a) i.e. joint holders of locker number 122.

                                iv. Rs.24,87,865/- towards the reimbursement of actual loss suffered by Complainants No.4 & 4(a) i.e. joint holders of locker number 124.

                                v. Rs.12,39,936/- towards the reimbursement of actual loss suffered by Complainant No.5 i.e. holder of locker number 99.

                                vi. Rs.1,86,12,675/- towards the reimbursement of actual loss suffered by Complainants No.6, 6(a) & 6(b) i.e. joint holders of locker number 129.

                                viii. Rs.52,40,718/- towards the reimbursement of actual loss suffered by Complainants No.7 & 7(a) i.e. joint holders of locker number 138.

                                ix. Rs.15,94,343/- towards the reimbursement of actual loss suffered by Complainants No.8, 8(a) & 8(b) i.e. joint holders of locker number 145.

                                ix. Rs.80,74,312/- towards the reimbursement of actual loss suffered by Complainants No.9 & 9(a) i.e. joint holders of locker number 165.

                                x. Rs.52,91,642/- towards the reimbursement of actual loss suffered by Complainant No.10 i.e. holder of locker number 153.

                                xi. Rs.13,56,180/- towards the reimbursement of actual loss suffered by Complainant No.11 i.e. holder of locker number 109.

                                xii. Rs.16,39,545/- towards the reimbursement of actual loss suffered by Complainants No.12 & 12(a) i.e. joint holders of locker number 127.

                                xiii. Rs.41,29,402/- towards the reimbursement of actual loss suffered by Complainants No.13 & 13(a) i.e. joint holders of locker number 126.

                                xiv. Rs.54,89,102/- towards the reimbursement of actual loss suffered by Complainant No.14 i.e. holder of locker number 114.

                                xv. Rs.24,96,434/- towards the reimbursement of actual loss suffered by Complainants No.15 & 15(a) i.e. joint holders of locker number 125.

                                C. Direct the Opposite Party to pay damages/compensation @ Rs.20,00,000/- (Rs. Twenty Lakhs Only) per locker holder; aggregating to Rs.3,00,00,000/- (Rs. Three Crores Only) towards the damages suffered on account of mental agony, emotional loss and trauma caused to the complainants due to the deficiency in services/security and the negligent conduct of the bank.

                                D. Direct the Opposite Party to pay an amount @ Rs.25,000/- (Rs. Twenty Five Thousand Only) per locker holder; aggregating to Rs.3,75,000/- (Rs. Three Lakhs Seventy Five Thousand Only) towards the litigation cost.

                                E. Award cost of the present proceedings; and F. Pass such other or further order(s) as the Hon'ble Commission may deed fit and proper in the facts and circumstances of case."

6. In its Written Statement, the Opposite Party/Bank took a stand that in terms of the Agreement whereby the lockers were allotted, the relationship between the Bank and the Lessee of the locker was to be of a 'Landlord and a Tenant' and not that of a 'Bailer and Bailee'. Further, in terms of the Agreement, the Bank had no responsibility or liability of any kind whatsoever in respect of the contents of the locker, nor the Bank can be held responsible for any loss or damage to the same arising from any cause whatsoever. It is further pointed out that the Complainants concealed the fact that there were 30 lockers which were broken open, out of which four were not allotted. FIR No.399 dated 12.06.2017 is stated to have been immediately lodged after the incident of theft came to light. Any negligence on the part of the Bank was denied.

7. It is further the stand of the Opposite Party that each branch of the Bank is equipped with security gadgets, which include alarm system, PIR system, light sensor, smoke sensor and same are subject to regular inspections. The Claim made by the Complainants is further stated to be inflated and whimsical and not supported by any purchase receipts to substantiate the same. The observations made by the Police with regard to maintenance of the lockers during investigation of FIR have also been further disputed.

8. In the Rejoinder filed on behalf the Complainants, the averments made in the Written Statement disputing the liability of the Opposite Party/Bank were denied and the contentions raised in the Complaint were reiterated.

9. In support of their case, the Complainants led evidence by way of Affidavits on 13.09.2021, of Sadhna Goel, Neelam Jain, Raj Kumari, Mohan Lal, Lakshmi Devi, Mukesh Goel, Suman Sharma, Rahul Sharma, Rekha Prabhakar, Durgesh, Sushila Devi, Anuj Kumar Sharma, Sangita Sharma, Davender Kumar Garg, Geeta Garg, Satish Nehra, Shriram Mishra, Poonam Mishra, Sudhir Kumar Bhatia, Rachna Bhatia, Sushma Rani, Sudha Goyal, Shiv Kumar Agrawal. Further, the documents relied by the respective Complainants were exhibited in their respective Affidavits.

10. Further, evidence by way of Affidavits on behalf of Complainants, namely, Anil Goel, Manohar Lal Dua, Ramesh Chandra Sharma and Suman Prakash Goyal were filed on 07.08.2021.

11. On the other hand, the Punjab National Bank/Opposite Party led evidence by way of Affidavit of Shri Hari Rattan Gautam posted at Govind Puri Branch, Modi Nagar, District Ghaziabad. The locker Agreements executed by the respective Complainants with the Opposite Party were exhibited as Ex.OPW-1/B to Ex.OPW-1/Z, reply furnished by the Bank in response to Right to Information application dated 18.11.2017 by one Neeraj Kumar Gupta was exhibited as Ex.OPW- 1/Z(i), the security arrangements in Bank branches in terms of RBI Circular dated 21.04.2009 was exhibited as Ex.OPW-1/Z(ii) and the Report dated 23.06.2017 of the Security Officer was exhibited as Ex.OPW-1/Z (iii).

12. We have heard Ld. Counsel for both sides and perused the material available on record.

13. That the Complainants had availed of the locker facility provided by the Opposite Party/Bank is not in dispute. The fact that the contents of their respective lockers, had been stolen is also not in dispute. But the Bank has first of all relied upon two conditions forming part of the Lease Agreement signed by the concerned Locker holders which happen to be condition Nos. 2 and 19, and which are re-produced as below -

                                "2. The Bank shall not be liable for any damage or loss resulting from delay caused by failure of the vault doors or locks to operate."

                                "19. The relationship between the Bank and the Lessee shall be that of a 'landlord' and a 'tenant' and not that of a 'bailer' and 'bailee'. The Bank has no responsibility or liability of any kind whatsoever, in respect of the contents of the locker, nor shall the Bank be held responsible for any loss or damage to the same, arising from any cause whatsoever."

14. The above grounds taken by the Opposite Party/Bank had earlier been found to be altogether untenable by this Commission in FA No. 7 of 1991 which had also been preferred by the present Punjab National Bank, and in which the identical ground of the existence of a mere landlord-tenant relationship had been raised by the Bank. But the Bench of this Commission comprising of four Members rejected such contention by observing inter alia -

                                "3. Another ground of attach in the appeal is that lease of the locker was in the nature of an agreement between a landlord and a tenant, Rank 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 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, die 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 deforce on the part of the appellant to seek release from its obligations under the locker agreement."

15. We are therefore to consider now whether there was any negligence on the part of the Opposite Party/Bank in taking the appropriate steps to ensure that the contents/valuables kept by the Complainant would remain safe or not. In this regard, the Complainant's side has relied upon the "Indian Standard - CODE OF PRACTICE FOR CONSTRUCTION OF VAULT (STRONG ROOM)" of July, 2003, which was adopted by the Bureau of Indian Standards, after such standards had been formulated by the Committee constituted for that purpose which comprised of various organisations including the "Punjab National Bank itself". A glance over the said "CODE OF PRACTICE FOR CONSTRUCTION OF VAULT (STRONG ROOM)" of July, 2003, would go to show that some of the requirements therein were as follows -

                                "6.1 Class 'C' Vault 6.1.1 The Class 'C' vault is of portable type and shall be constructed from mild steel plates lined with high quality fire resisting insulation blocks/bricks [see 3,4,8 and 9 of IS 2185 (Part 3)]."

16. Similarly, regarding the vaults for the Class 'B' vaults had been standardised as follows -

                                "6.2 Class 'B' Vault 6.2.1 Walls Walls of the Class 'B' vault shall be reinforced concrete of grade minimum M 20 as per 6 and 9.2 of IS 456 and shall be of minimum thickness 300 mm. The reinforcement shall be of mild steel rods of minimum 12 mm diameter (see 7 and 8 of IS 9550 and 4 of IS 1732) placed vertically and horizontally at 150 mm center to center distance to form mesh and two meshes shall be staggered apart in such a way so that the reinforcement bars shall be at every 75 mm center to center in cross section."

17. But the Police while conducting its investigation in view of the FIR lodged on behalf of the Bank itself found a number of loopholes in the Bank security, which were brought to the notice of Bank's General Manager, Circle Office, Sector-1, Noida by listing the following details -

                                "1. The security of the bank was found to be inadequate. No Room Sensor, Alarm were found in the Strong Room. It is very strange why the alarm did not ring when the incident of theft took place whereas it was averred by the bank officials the Sensor Alarm was duly checked on 09.06.2017 and found to be in working condition.

                                2. The backside of the wall of the strong room was not too strong to be made as per the norms prescribed. Tin shed and concrete were not implanted in the wall, as a result of which the burglars easily entered the premises and performed their illegitimate act very easily. The thickness of wall was found to be of 5 inches.

                                3. The Bank Lockers which were broken were very old and not branded as the lockers were easily broken by the thieves.

                                4. There was a lacuna in the security because the no efforts were being taken to renovate the backyard/ wall of the bank facing the Textile Mill since the last 10-12 years.

                                5. Strong Room is a confidential room but the bank staff and other people callously use their mobile phone and make video calls to one another in the prohibited areas. Under the garb of that act, they were taking photographs and video recording, which might be transmitted to other people too, which act is a grave lacunae on the part of the bank and shown irresponsible on their part. The said fact is clearly evidenced from the clippings of the CCTV camera.

                                6. For the security of the bank, no security guard was ever appointed.

                                7. Most of the CCTV installed in the bank were found to be non-functional, which also reflects the irresponsible and callous conduct on the part of the Bank."

18. Furthermore, from the FIR case Crime No. 399 dated 12.6.2017 lodged by the Chief Manager of the concerned Bank itself (Annexure-1), it becomes clear that no Guards had been placed near or around the Strong Room in which the burglary had been committed. This is clear from the own allegation of the Complainant/Chief Manager that on reaching the Bank on 12.6.2017 at around 9.30 a.m. and visiting the Strong Room, he saw that some thieves had broken the wall of the backyard and fluttered the files kept in the Strong Room. Therefore, it is clear that the burglary was noticed for the first time by the Chief Manager himself at 9.35 a.m. when he had come to the Bank for reporting on duty. Had there been any Guards posted at the spot, they would have certainly informed the Management immediately the moment they had been aware of the theft.

19. With reference to the aforesaid observations of the Investigating Officer in his letter dated 22.6.2017 to the General Manager of the Bank itself, the Deputy Circle Head of the said Bank wrote in his response dated 23.6.2017 answer to the Investigating Officer's observations in the following manner -

                                "With reference to your letter dated 22.08.2017, we would like to submit that -

                                1. Strong Room of the PNB Locker was well-equipped with Alarm System, PITR System, Smoke Sensor, Light Sensor and it was duly examined by the Vendor, which were found to be in working condition. During the period of incidence, the culprits/thieves very cleverly covered the Alarm System and PIR System, as a result of which the Alarm could not ring.

                                2. The Strong Room of the said PNB Branch was constructed in the year 1971. Strong Room was constructed as per the guidelines prescribed by the RBI in the year 1971. The said construction was made under the supervision of the Architecture appointed by the Bank and it was embedded with all the essential materials viz. Cement, concrete, rod etc.

                                3. The Bank Locker Cabinets were manufactured by M/s. Stealage Company, which were duly made as per the approved guidelines laid by the RBI.

                                4. The wall of Bank's Strong Room was made in the year 1971 as per the norms prescribed by the RBI.

                                5. Bank has strongly given instructions to its staff and other persons not to use their mobile in the Strong Room.

                                6. For the purpose of security, the Bank has nominated one Security Guard during the day time and two Security Guards during the night.

                                7. All the CCTV cameras installed at the Bank are functioning, which fact can be verified from the record/ report dated 09.06.2017 submitted by the CCTV Mechanic and the CCYTV footage was duly captured when the said theft occurred. Till then, the culprit has not covered the cameras with any clothes."

20. Further, the Investigating Officer in his Report submitted to the Senior Superintendent of Police, following the FIR lodged on behalf of the Bank had mentioned on 13.6.2017 -

                                "Sir, on investigation, I found that the security of the Bank was not adequate. The sensors of the Strong Room were not working because when the theft incident occurred, it could not rang.

                                The wall of the Bank is merely 5 inch thick and no tin sheet is embedded in the wall to make it extra strong.

                                The bank has also not engaged and personal security staff of its own, the said lacunae had earlier been brought to the knowledge of the Bank Manager by the undersigned during the course of investigation and marked in the report also. We also gave him advise and suggested him to immediately rectify the loopholes lying the security of the bank."

21. From the aforesaid observations made by the Investigating Officer, the correspondence between the Police and the Bank Authorities, it becomes clear that there was gross negligence on the part of said Authorities for the purpose of complying with the requirements as under the "CODE OF PRACTICE FOR CONSTRUCTION OF VAULT (STRONG ROOM)" already referred to in Para 13 earlier. By the own version of the Bank's Deputy Circle Head, the Strong Room had been constructed in the year 1971 and was being maintained as per the norms prescribed in that year but as already noted, fresh standards had been adopted for the purpose of Strong Room by virtue of "CODE OF PRACTICE FOR CONSTRUCTION OF VAULT (STRONG ROOM)" more than 30 years later in 2003. The theft occurred another 14 years later in June 2017, but the Bank kept on following the outdated norms which were already 46 years old. On top of it, no Security Guards had been provided in and around the sensitive are of the 'Strong Room', which clearly enabled the thieves to effect the burglary without being apprehended.

22. We may now come to the question as to what relief or compensation if any, are the Complainant's entitled. They have given a Chart of the goods lost by them alongwith the value there of in respect of each of the Complainant. Such Chart is a part of Para 25 on page 11,12, of the Written Arguments filed on behalf of the Complainants on 17.8.2023.

23. They have firstly relied upon the decision of this Commission in Pune Zilla Madyawarti Sahakari Bank Limited & 2 Ors. Vs. Ashok Bayaji Ghogare, 2015 SCC OnLine NCDRC 2832"; in which it was held inter alia -

                                "7. We have duly considered the submissions made by the learned counsel for the petitioner, but we find ourselves unable to accept the same. Since no one else is present when a bank locker is used, the only evidence which a locker holder can give to prove the storing of the jewellery in is locker is his own evidence. In a case where deficiency on the part of the bank in rendering services to its customers is proved, the affidavit of the locker holder should ordinarily be accepted unless the same stands impeached by way of his cross examination. In fact, in most of the cases, it may not be possible for the locker holder even to produce documentary proof of purchase of the primarily made of gold on their wedding, as well as on other occasions such as birth of a child and the marriage of a family member, from their parents, parents in law and other relatives. If the theft takes place years after they receive the aforesaid jewellery either in their wedding or some other occasion, it will not be possible either for them or for the parents/ parents in law/ relatives to produce documentary proof of the purchase of the said jewellery. In fact, it is also not necessary that the person who gifted the jewellery would be alive by the time the theft takes place. The rules of the bank do not require declaration of the valuables kept in the locker or their insurance. However, in the case before us, the jewellery was actually purchased by the complainant and his family members themselves and they had produced documentary proof of the said purchase. The sons of the complainant also filed their evidence disclosing the source of their income at the relevant time by producing copies of their bank passbook. The aforesaid documentary evidence thus amply corroborated the deposition of the complainant as regards the extent of the jewellery which was kept in the locker and it got stolen."

24. Thereafter, the Complainants have also relied upon the decision of the Hon'ble Supreme Court in the case of "State of U.P. Vs. Nahar Singh (Dead) & Ors. (1998) 3 SCC 561"; in which the Hon'ble Apex Court had observed inter alia -

                                "13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

                                (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although, the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."

25. Thus, according to the Complainants, the fact that all of them have filed their respective Affidavits in evidence in the Complaint, and the Opposite Party chose not to cross-examine them, would render their Statements unchallenged, which are therefore liable to be accepted as such in view of the decision of the Hon'ble Supreme Court in the "State of U.P. Vs. Nahar Singh (Dead) & Ors." (Supra).

26. In the case of "Mamta Chaudaha & Anr. Vs. Branch Manager/Head Manager, State Bank of India & Ors., 2019 SCC OnLine NCDRC 731"; the claim of the Complainants had however been dismissed not only by the State Commission before which the Complaint was filed, but also by this Commission which was similarly of the opinion that no theft in the concerned Complainant's locker had actually taken place.

27. In "Amitabha Dasgupta Vs. United Bank of India & Ors.,Civil Appeal No. 3966 of 2010", the Hon'ble Supreme Court, however, was of the view that in such cases where the valuables of the Complainants were stolen from Bank lockers, the Consumer Fora ought not to award the value of such stolen articles, which may not be properly assessed for lack of detailed evidence as might be led in Civil Courts, since the procedure to be followed in the Consumer Fora is summary in nature. The relevant observations of the Hon'ble Supreme Court are extracted as below -

                                "8.7 It is true that the National Commission has, in previous decisions such as Punjab National Bank, Bombay v. K.B. Shetty, and Mahender Singh Siwach v. Punjab and Sind Bank, awarded the value of articles which have been stolen or gone missing from bank lockers. Moreover, in Pune Zilla Madyawarti Sahakari Bank Limited v. Ashok Bayaji Ghogare, the National Commission has gone to the extent of holding that the affidavit of the locker holder should ordinarily be accepted for proving the contents of the bank locker, unless the same stands impeached by way of cross examination. However, it is relevant to note that in the facts of the aforementioned cases, the complainants had produced detailed and precise documentary proof for corroborating the extent of jewellery placed inside the locker, which has not been done in the present case.

                                8.8 In UCO Bank (supra), similar situation arose as in the present case, wherein the respondent locker holder claimed that his locker was tampered with and broken open, and valuables were subsequently lost, due to the negligence of the bank. The bank not only disputed the value of jewellery kept inside the locker, but also denied any negligence in the breaking open of the locker. The locker holder had only produced an affidavit in respect of the value of the jewellery claimed by him. Hence the National Commission held that it is appropriate that both these issues should be remitted for determination in a civil suit in a competent civil court, after adducing of elaborate evidence on both sides.

                                8.9 In the recent case of Mamta Chaudaha v. Branch Manager/Head Manager, State Bank of India,20 the National Commission again observed that the appellant locker holders had not produced any evidence apart from a standard affidavit to prove that they had kept a specified quantity of gold ornaments inside the bank locker. Further, there was no evidence of forcible entry to the locker. Hence the complaint for recovery of value of the ornaments was dismissed.

                                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 law as the case may be Separate Duty of Care of the Bank with regard to Locker Management. (Emphasis added)

                                8. 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 as custodians of public property cannot leave the customers in the lurch merely by claiming ignorance of the contents of the lockers.....

                                13. In the present case, it is undisputed that the Respondent Bank inadvertently broke the Appellant's locker, without any just or reasonable cause, even though he had already cleared his pending dues. Moreover, the Appellant was not given any notice prior to such tampering with the locker. He remained in the dark for almost a year before he visited the bank for withdrawing his valuables and enquired about the status of the locker. Irrespective of the valuation of the ornaments deposited by the Appellant, he had not committed any fault so far as operation of the locker was concerned. Thus, the breaking open of the locker was in blatant disregard to the responsibilities that the bank owed to the customer as a service provider. The alleged loss of goods did not result from any force majeure conditions, or acts of third parties, but from the gross negligence of the bank itself. It is case of gross deficiency in service on the part of the bank.

                                14. Thus, looking to the facts and circumstances of the case, we deem it appropriate to impose costs of Rs. 5,00,000/¬- on the Bank which should be paid to the Appellant as compensation. The amount of Rs. 5,00,000/¬- shall be deducted from the salary of the erring officers, if they are still in service. If the erring officers have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/¬- as litigation expense."

28. In view of the highlighted observations of the Hon'ble Supreme Court in the case of "Amitabha Dasgupta Vs. United Bank of India & Ors." (supra), whereby the decision of this Commission was affirmed that the individual loss sustained by the various Complainants/Locker Holders could not be determined in the summary proceedings contemplated under the Consumer Protection Act, and therefore it is fit and proper that the Complainant(s) be granted liberty to file fresh Suit(s) before the competent Civil Court for determination of the quantum of damages on account of the losses sustained by him due to the theft and from his Bank locker.

29. Nevertheless, as also observed in Para 14 by the Apex Court re-produced above, we are of the opinion that the Complainants deserve to be granted at least costs for the litigation which they have so far been constrained to resort to.

30. Consequently, the Complaint is dismissed with liberty to the Complainants to file their fresh Complaint(s) before the competent Civil Court for assessment and recovery of their damages on account of the theft of their valuables from the lockers. However, costs @ Rs. 1.00 lakh to each of the Complainants are awarded here for the palpable negligence in the matter on the part of the Bank Authorities.

31. Pending application(s), if any, also stand disposed off as having been rendered infructuous.

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