ORDER
B.K. Taimni, Member
1. These two appeals have been filed by both the parties aggrieved by the order of the State Commission.
2. Brief facts of the case are that the Complaint, Ugam Singh had a locker facility with the Respondent Bank when he came to operate it on 5.12.90, according to complainant while he was completing the formalities to operate the locker, he heard the Branch Manager querrying a staff member “if this was the very person Ugam Singh whose locker was opened” Thereafter the Complainant went into the strong room and found the locker already opened and no ornaments therein. The Complainant lodged an F.I.R. who after investigation filed F.R. but case was re-opened on orders from the Judicial Magistrate. Alleging deficiency on the part of the Bank, the Complainant moved the State Commission seeking Rs. 2lakh as compensation, Rs. 5 lakh as economic loss and Rs. 10,000/- as costs. Evidence before the State Commission was led by affidavits. After hearing both the parties the State Commission came to the conclusion that the incident which is also reproduced in the complaint, the complainant has proved his case. According to the State Commission, non-production of the locker ‘register’ furthered the cause of the Complainant. Based on these findings, the State Commission directed the Appellant/Respondent to pay Rs. 60,000/- as the cost of jewellery weighing over 17 tolas and cost of Rs. 5,000/-. These payments were to be made within one month failing which it was to carry an interest @ 12%. It is against this order that the two Appellants have filed these two separate appeals before us, the Complainant asking for enhancement, in compensation, cost of jewellery and rate of interest, whereas the Appellant seeks to have the order of the State Commission set aside.
3. It was argued by the Ld. Counsel for the Appellant, Shri S.L. Gupta in F.A. No. 489/95 that the State Commission has erred in arriving at the findings it did. It is admitted position that the Complainant last operated the locker on 18.7.88. It is also a well established fact that locker can be operated by two keys, one of which is with the individual and the other is kept by the Bank. One the Complainant says that he had locked the locker when he last operated the locker, then who and how the locker could be opened without the locker operator is key?. The complainant after operating the locker and finding the jewellery missing and not getting any satisfactory explanation from the Bank, lodged FIR with the police, the latter investigated and found nothing wrong and filed ‘final report’. The locker was also examined by the Locker supplier M/s. Steelage in the presence of police and it was found that it has not been tampered with. There is only an allegation that the Manger and an employee stated that it the same Ugam Singh whose locker was opened’ This is alleged to have been heard by two other witnesses i.e. Shri Yasmin and Shri Chet Ram Jat but no affidavits have been brought on record by the complainants in support of their allegation. Merely relying on FIR and giving relief cannot be said to be based on facts and law. The other main ground of allowing the complaint i.e. non-production of locker-register seems to have been over-played. The only entry in the locker register is name of the locker holder, locker no., key no., time and date of opening. How does it effect on the merits of the case. None of them are disputed. Locker is outcome of a contract between a licensor and licensee and is not a service. The order of the State Commission need to be set aside. On the other hand, it was argued by the id. Counsel for the Complainant, Shri S.S. Tomer that there is no doubt that the Bank has been deficient in providing service. Jewellery is kept and when it is operated nothing is found. Bank take locker charges for rendering the services in which they failed. To start with Manager stated in the presence of two people about the man being the same Ugam Singh whose locker was operated. Why will the Bank Officials say so it it was already opened? Jewellery had already been removed, perhaps by getting a duplicate key. As soon as locker was opened and finding the jewellery missing, the Complainant raise hue and cry – reported to the Bank Manager, lodged F.I.R. with the Police. No department action was initiated, which was a must for which he relied on the commission’s judgement in Punjab National B Vs. K.B. Shety in FA No. 7/91.
4. We have carefully gone through the material on record and the arguments advanced by both parties. What prima-facie we find totally unacceptable in this case is that when the Complainant went into the locker-room he found his locker opened which was closed with the help of his key and then again re-opened with the help of both the keys i.e. one with the Bank and the other with the locker holder. The Complainant is a literate and sensible person. How could we believe that he lent his key to close his locker and than re-open it. Normal expected reaction seeing one’s locker – open is to see inside the locker and on seeing the items missing, make a hue and cry there and than inside the locker room. This is not the sequence before us. We are not satisfied and see no merit in the allegation of conversate on between two persons about the complainant “being the same Ugam Singh whose locker was operated”. There is no evidence on this point. No affidavit of these two persons who were there, have been filed. It is admitted position that the locker was locked when the complainant last operated it on 18.7.88. If that is so, than how came the locker was seen open on 5.1.90. A new dimension has been added by a bold allegation that perhaps a duplicate key, which according told. Counsel for the Complainant is easy to get, was made out and his jewellery removed. It is not disputed that the customer’s key was always with the Complainant, then how could a duplicate key be made which is one of its kind and specific to that lock. It will be further difficult to believe that duplicate key holders connived with Bank to open the locker and left the locker open. We also find ourselves unable to agree with the State Commission’s observation that since the Complainant lodged FIR on 5.1.90 itself – this conduct of the Complainant of lodging FIR on that very day also corroborate the correctness of his version. We also see that too much has been made about no departmental probe into the matter. Departmental probe is ordered if there is a prima-facie case. In the instant case, the contention of the Bank is that, the locker was locked, it was opened with both the keys i.e. one with the Banker and other with the consumer/complainant; where is the question of any probe especially when police went into the matter and found nothing wrong and filed FR. There is no material available on record to show that the Judicial Magistrate ordered re-investigation. In our view, State Commission/s deduction that the locker was already opened when the complainant came to operate it on 5.1.90, is not based on any evidence or proof. We also do not see much wieght in the argument that non-production of locker register be held against the Bank. This is not even argued by the complainant. Entries in a locker register are not disputed. It would have been better, had that registered been produced, but it is not asked for either by the Complainant or by the State Commission to be produced. According to us nothing turns on this. In our view, the Complainant failed to prove his case that the locker was already open when he went to operate it on 5.1.90.
5. In the light of above, we are unable to sustain the order of the State Commission and is set aside. Appeal filed by the State Bank of India in FA NO. 489/95 is allowed and appeal filed by the complainant. Ugam Singh in FA NO. 515 is dismissed.
6. No orders on costs.