RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

(1) Appeal No.2475 of 2014

Union of India through Senior Superintendent of

Post Office, Gorakhpur Division, Gorakhpur. ...Appellant.

Versus

Arjun Bhagat s/o Sri Ghasiya Bhagat,

R/o House no.0001 B, Jharna Tola, New Project

Road Air Force, Post Office Kuraghat,

District Gorakhpur. Permanent Address,

Bagadu Toli, Post Office Jamun Toli,

District Lohardaga (Jharkhand)                  ….Respondent.

 (2) Appeal No.2281 of 2014

Arjun Bhagat aged about 67 years,

S/o Late Ghasiya Bhagat, R/o House no.0001 B,

Jharna Tola, New Project Road, Air Force,

Post Kudaghat, Dis. Gorakhpur. Permanent Address,

R/o Bgadu Toli, Post Jamun Toli,

District Lohardaga, Jharkhand                    ……Appellant.

Versus

1- Union of India through Chief Post Master General,

    New Delhi.

2- Pravar Daak Adhishak, Gorakhpur.

3- Post Master General, Gorakhpur Region,

    Gorakhpur.

4- Chief Post Master General, U.P.,

    Lucknow.                                                ...Respondents.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Dr. U.V. Singh for the for appellant Post Office.

Sri Ravi Pratap Singh for the respondent/complainant.

Date  5S.7.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

The above appeals are connected to each other        as they arise out of the same order and therefore, they are

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decided together. The appeal no.2475 of 2014 is treated as the leading appeal.

The facts giving rise to the appeal no.2475 of 2014, in short, are that the respondent/complainant had fought parliament election 2009 from Lohardaga and after the election, the details of election expenditure was sent to Shri Rahul Sharma, the then Upaukta/Up Zila Nirvachan Adhikari through registered parcel from the Post Kudaghat Head Post Office (PIN 273008) through R.P.A. 260 counter number and OP code 01 weight 565 gram after paying Rs.52.00 which was not received to the addressee till now and due to that a letter no.76/Jhar-Lo-sa/2009 dated 9.4.2012 was sent through which he was debarred from taking part in any election. The action taken against the complainant by the Election Commission of India was due to the deficiency in service done by the Post Office and the Post Office is responsible for that. After receiving the above letter the complainant came to know about non-receiving of the parcel. The complainant tried to know about the parcel but he was not given any satisfactory answer therefore, the complainant sent a registered notice dated 10.4.2013 for knowing the status of the parcel but no answer was given by the post office. Thereafter, a notice through counsel dated 17.6.2013 was sent of which a reply was received that records of that parcel was not available and the case is time barred. The complainant, thereafter  filed complaint case no.270 of 2013 for compensation of Rs.19,60,00.00 in the District Forum, Gorakhpur in which the OPs filed their objection stating therein that the complaint is time barred and not maintainable. The

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complaint does not fall under the Consumer Protection Act, 1986 and is barred by Section 79(a) and 80(i) (a) of the CPC and also Section 6 of the Indian Post Office Act. There is no record available of the said parcel in the concerned post office. The complaint is liable to be dismissed. After hearing the parties the Forum below has passed the order on 24.9.2014 as under:-

"परिवादी का परिवाद विरूद्ध विपक्षी स्‍वीकार किया जाता है। परिवादी विपक्षी से 52100.00 (बावन हजार एक सौ रू0) की क्षतिपूर्ति  की धनराशि प्राप्‍त करने का अधिकारी है। विपक्षी को निर्देशित किया जाता है कि वह निर्णय व आदेश के दिनांक से एक माह की अवधि के अंतर्गत समस्‍त आज्ञप्ति की धनराशि परिवादी को प्रदान करे अथवा बैंक ड्राफ्ट के माध्‍यम से मंच में जमा करे, जो परिवादी को दिलाई जा सके। नियम अवधि में आदेश का परिपालन न किए जाने की स्थिति में परिवादी समस्‍त आज्ञप्ति की धनराशि पर 06 प्रतिशत साधारण वार्षिक ब्‍याज प्रार्थना पत्र के दिनांक से अंतिम वसूली सातक विपक्षी से प्राप्‍त करने का अधिकारी होगा एवं समस्‍त आज्ञप्ति की धनराशि विपक्षी से विधि अनुसार वसूल की जाएगी।" 

Feeling aggrieved with the impugned order, the appeal no.2475 of 2014 has been filed by the appellant Union of India through Senior Superintendent of Post Office on the grounds that the complaint was not maintainable under section 6 of the Indian Post Offices Act and ld. Forum ought to have considered the fact that the services rendered by the Post Offices are merely statutory and there is no contractual liability. The impugned order is erroneous in view of clause 84 of the Post Office Guide. The appeal may be allowed and the impugned judgment set aside.

Feeling aggrieved by the impugned judgment the appellant/complainant has also filed appeal no.2281 of

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2014 for enhancement in the compensation awarded by the forum below on the ground that fundamental and constitutional rights of the complainant have been violated due to aforesaid deficiency in service of the Postal Department and the Forum has failed to appreciate the mental agony and trauma being faced by the appellant/ complainant.   

Heard counsel for the parties and perused the record.

With regard to appeal no.2475 of 2014, it is argued by the ld. counsel for the appellant that firstly, there was no conclusive evidence placed by the complainant in respect of non-delivery of the parcel particularly when the letter dated 9.5.2012 by Up Nirvachan Adhikari, Gumla would show that it was non-conclusive on the issue of non-delivery as it only reveals that due to non-submission of account of expenditure or non submission of record in prescribed manner that the action for debarring the complainant as ineligible to contest the election for 3 years, was taken and in that regard he pointed out the letter written by the election office on 9.5.2012 which shows the subject as under:-

"12 लोहरदगा अ0ज0जा0 संसदीय निर्वाचन क्षेत्र से झारखण्‍ड लोक सभा साधारण निर्वाचन – 2009 में चुनाव लड़ने वाले अभ्‍यर्थी आपके द्वारा निर्वाचन व्‍ययों का लेखा दाखिल नहीं करने अथवा विधि द्वारा अपेक्षित रीति से दाखिल करने में असफल रहने के कारण निरर्हित घोषित करने के संबंध में।"

Since in this letter, it is mentioned that on not being able to file accounts for expenditures incurred in the election or not filing as per norms that the action was taken for debarring, so it is argued that it is not clear from the aforesaid letter that the parcel in question was in fact

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not delivered at all as the letter does not disclose that no information was received as it talks about the information not being as per norms also, so it was no conclusive proof that the parcel in question was not delivered at all and therefore, it is vehemently argued by the ld. counsel for the appellant that when this fact itself was not conclusively proved that the parcel in question was not delivered at all then there was no question of proving the deficiency in service on the part of the appellant but we find that there is no substance in the arguments advanced by the ld. counsel for the appellant as in the order dated 9.4.2012 which was communicated alongwith aforesaid letter dated 9.5.2012, it transpires that with regard to the reasons for debarring the candidate at serial number 14 against the name of the complainant Arjun Bhagat, there is the mention of the fact of not being able to submit accounts for the expenditure incurred in the election. So, it clearly shows that the account was not at all submitted by the complainant, hence, it is not the case that information submitted by the complainant was not as per norms. So, it is clear that in fact the information submitted by the complainant through parcel did not reach its destination and therefore, in the absence of the information required, the complaint was debarred from contesting the election. The only conclusion, once the complainant is able to prove through receipts that the parcel was sent through the postal department, is that the appellant did not deliver the parcel to the addressee and therefore, it appears to be a case of deficiency in service on the part of the appellant but here another argument advanced by the ld. counsel for the

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appellant is that under section 6 of the Indian Post Offices Act, 1898, it is provided that no officer of the Post Office shall incur any liability by reason of any such loss, mis-delivery, delay or damage, unless he has caused the same fraudulently or by his wilful act or default and since there is no evidence of any official of acting fraudulently or by his wilful act or default hence, no order for awarding compensation could be passed and in this regard ld. counsel for the appellant has cited decision of the Hon'ble NCDRC in Head Post Master, Post Office Railway Road, Kurukshetra, Haryana & Ors. vs. Vijay Rattan Aggarwal etc. R.P. No.15 of 1997 and Post Master, Imphal and others vs. Dr. Jamini Devi Sagolband, (2000) CPJ 28 (NC), wherein it was held "that for the delay in delivery of the letter, in question, to the complainant, no element of willful neglect of default could be attributed to the Postal Department". But, it is to be noted that in I(2017) CPJ 172 (NC), Department of Post & Ors. vs. Gajanand Sharma, it was held by the Hon'ble NCDRC that in the facts of the case where there was attempt to hide the real reason in not delivering the letter, the conduct of postal department leads to irresistible conclusion that there was willful default on the part of its official concerned. Hence, the case of the complainant fell within the ambit of exception carved out under section 6 of the Indian Post Office Act and in the instant case, we find that the conduct of the officials of the postal department is such as to conclude that there was willful act or default on the part of the official concerned in not delivering the article to the addressee i.e. the reason why they first challenged the

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conclusive proof of non-delivery and once that was done by the complainant then taking shelter under the rules instead of categorical stating the fact that the letter was in fact delivered. In fact, the appellant has gone to the extent of finding fault with the complainant in not making the addressee a party to the case when there was no need at all of the same in view of the categorically mentioning of non-submission of the information sent through parcel. When a parcel is sent and is not delivered then it is normally returned to the addressee but that has not been done which also shows that there was a default on the part of the official in not delivering the article and also not returning it to the sender in case the article was not delivered. The fact is that citizens hold in high esteem the post offices run by the Central Government and hence, the letter and parcels are preferably sent by the citizens of the country through post offices with the belief that there will not be any obstacle in reaching the articles to its destination but this fact has been utterly belied by the postal department as the hapless consumer has been debarred from contesting elections in absence of the required information by the election Commission for none of his fault. Therefore, as per the aforesaid cited case (Gajanand Sharma), it is clear that this case falls within the exception of willful act or default of the officials under section 6 of the Indian Post Office Act and therefore, the appellant/OP is guilty of negligence and deficiency in service. Therefore, we find that the ld. Forum below has correctly found the appellant guilty of deficiency in service, therefore, in that regard, we do not find any cause

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to interfere in the conclusion drawn by the ld. Forum. Though the loss that has been occasioned to the complainant can not be compensated in exact terms yet ld. Forum has awarded compensation in addition to the liability under the rules which under the facts and circumstances of the case appears to be justified. So the appeal no.2475 of 2014 is devoid of merit and is liable to be dismissed.

So far as the appeal no.2281 of 2014 is concerned, we find that the amount awarded by the Forum below is found to be justified and there is no cause to enhance that amount of compensation therefore, this appeal is also liable to be dismissed.             

ORDER

          The appeals are dismissed.   

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.2281 of 2014.   

         (Vijai Varma)                       (Govardhan Yadav)

    Presiding Member                             Member

Jafri PA-II

Court No.4