Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.07/ dated 04.01.2018
Sachin Ahuja, c/o Harish Kumar Ahuja,
House No. 535, Sector 17, Faridabad 121 002.
Also at: House No. B/1096, Greenfield Colony,
Faridabad 121 002. ....Complainant
Versus
OP1. Chief Postmaster General
Delhi Circle,
Department of Posts, Meghdoot Bhawan,
New Delhi 110 002
OP2 Director, Foreign Post, Department of Posts,
I.P. Estate,
New Delhi 110 002. ...Opposite Parties
Order Reserved on: 01.02.2023
Date of Order: 01.04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.(Introduction to case of parties and dispute between them) : There are allegation of non-delivery of registered foreign posted postal article of complainant to his brother/addressee in India by the OPs, apart from later-on it is stated the costly article lost by OPs. There is deficiency of services on the part of OPs. However, the OPs deny the allegations, apart from the complaint is without cause of action, or it is bogus complaint or the parcel was correctly sent for delivery to addressee/Harish KumarAhuja, it was refused by him to avoid customs duty.
2.1 (Case of complainant ) : That is complaint under the Consumer Protection Act, 1986. The complainant, Sachin Ahuja, son of late Shri Ram Lal Ahuja, aged 45 years is a permanent resident of House No. 1096 Greenfield Colony, Faridabad and presently he is working with M/s ARCUS in Australia. OPs are providing services to consumers by receiving & delivering the articles/parcels. Its Foreign Post office located at I.P. Estate is mandated to receive articles/parcels from foreign countries and delivering these articles to people residing in India. The complainant Sachin Ahuja sent one parcel No. CF 109 756 727 AU vide receipt No. 0488495 dated 17.1.2017 (Annexure-I to the complaint) from Maddington Post Office, Australia, to his brother/attorney/Harish Kumar Ahuja r/o House No. 535, Sector 17, Faridabad 121 002 The parcel contained one I-Phone model 5S16GB. The parcel was not received by the Harish KumarAhuja. However, a letter No. 237/2017 dated 13.2.2017 was received from OP2 which states that the Parcel No. CF 109 756 727 AU was dispatched for delivery but it was received back by them on 11.2.2017 (copy of letter is Annexure-II). It was asked in the letter to inform whether or not, he is interested to take the parcel and in case no reply is received within a period of 15 days, then the parcel will be disposed off as per rules. There were total charges of Rs.4,650/- including customss duty of Rs.4,340/- was payable on that parcel by the Harish KumarAhuja.
Immediately Harish KumarAhuja contacted OP2 and on enquiries, he came to know that since the parcel was not delivered, therefore, it will be sent back to Australia, which is normally done in 15-20 days. Harish KumarAhuja remained in touch with complainant in Australia and he came to know that the parcel had also not been received back by the Complainant. Harish KumarAhuja again approached OP2 and requested them to return back the parcel to complainant in Australia.
However, OPs' official concerned expressed some difficulties of locating the said parcel in their stores for want of manpower, coordination with Customs Office since customs duty was also the factor etc. On persistence of Harish KumarAhuja, it was again assured that needful will be done in next few days. But parcel was not received back by the complainant despite pursuing the matter repeatedly with OP2 by Harish KumarAhuja personally. The dealing official kept on repeating their problems. Since, no other option was left, Harish KumarAhuja, requested the official OP2 to send again the parcel-article to addressee and it was agreed by official of OP2.
2.2: Later Harish Kumar Ahuja, came to know that the parcel was redirected to Post Master, Faridabad 121002 on 17.5.2017 by OP2 vide D. No. 1532/17, with customs duty payable as Rs.4,650/- , however, the parcel was neither delivered to Harish Kumar Ahuja nor it was sent back to the complainant in Australia. Harish Kumar Ahuja once again contacted the OP2 and also handed over a letter dated 12.6.2017 (Annexure- III) drawing their attention of non-receipt of parcel by Harish Kumar Ahuja and requesting them to look into the matter, apart from repeatedly contacting and visiting to Post Master, Sector 16 Post Office, Faridabad and RMS office at Sector 21, Faridabad, where all such parcels are received. He also got checked inward register in the office of RMS, Sector 21 Post Office, Faridabad but of no avail. Then Harish Kumar Ahuja also lodged complaints with India Post website electronically on 14.6.2017 and 18.7.2017 but no response on such complaints. Harish Kumar Ahuja also lodged complaints to Grievance Cell on 21.6.2017 electronically and through registered letters dated 22.06.2017 to OP1/Chief Postmaster General, Meghoot Bhawan, New Delhi and Deputy Director General (PG&QA), Dak Bhawan, Sansad Marg, New Delhi (which is Annexure-IV), however, no response was received qua these communications. He also filed applications under RTI dated 28.6.2017 and then to the Appellate Authority on 05.09.2017, which have not elicited properly or complete reply and still it is not known, as where is that parcel landed up?.
2.3 There is lapse of more than 11 months but neither the complainant nor the Harish Kumar Ahuja has received the parcel despite running from pillar to post nor it is known as to when it will be delivered, if at all. The parcel is containing I-Phone, it was sent by the complainant to his brother/Harish KumarAhuja, out of love and affection, the emotion between both families cannot be explained in words.
The Complainant is a consumer as defined under the Act and OPs are liable to pay Rs.35,000/- as cost of I-Phone and Rs.1,00,000/- as compensation, apart from other such order in favour of complainant.
2.4. The complaint is signed by the complainant, it also supported by his affidavit and documents, already mentioned and later he had also filed copy of his passport.
3.1 (Case of OPs). The OPs filed their joint written statement and complaint is opposed by them. The complaint is not maintainable and it is liable to be dismissed since it is based on wrong facts and grounds. The complainant has not produced any relevant records and concealed the material facts, hence the complaint is liable to be dismissed with heavy costs. Moreover, the complaint is liable to be dismissed as relief claimed cannot be granted. The complaint is without cause of action against OPs and no notice u/s 80 CPC was issued prior to filing the complaint, hence it is liable to be dismissed under Order-VII rule 11 C.P.C. The entire complaint is bogus or evasive and without any substance in as much as no specific date or details of cause of action is mentioned on the basis of which the present complaint was filed and as such complaint is liable to be rejected with heavy costs. Sachin Ahuja filed the complaint at CDRF, ISBT, Delhi-110006 but he is residing in Australia. He was supposed to file the photocopy of passport (2nd page). The complaint is not maintainable and it is liable to be dismissed with cost.
3.2. The OPs admit paragraphs 4 & 6 of the complaint that a parcel containing I-Phone was sent by the complainant to addressee Shri Harish Kumar Ahuja, which was not delivered to him till date nor sent back to Australia, he visited the office of OPs to pursue the matter and to re-send at the address of the addressee. Since the parcel was refused initially, the department returned the same immediately, as it is mandatory under Rule 20 of Foreign Post Manual. However, all other allegations in the complainant are denied by them.
The complainant Shri Sachin Ahuja had booked one international parcel from Australia. The parcel was addressed to Shri Harish Kumar Ahuja, House No. 535, Sector-17, Faridabad, Haryana-121002. The parcel was received in Foreign Post on 24.01.2017 (Annexure-I to reply), it was examined and then released with the customs duty for Rs.4340/- (its copy Annexure-II to reply). Thence parcel was dispatched to Faridabad Sorting for delivery to the addressee Harish Kumar Ahuja on 01.02.2017. The delivery of parcel was attempted to addressee but the item was refused by the addressee, without assigning any reason (copy of refusal report is Annexure-III) and the parcel was again received back at Foreign Post on 11.02.2017. On 13.02.2017 a notice was served to Shri Harish Kumar Ahuja to re-confirm whether or not he wants to collect the parcel (copy of notice is Annexure-IV to reply). Harish Kumar Ahuja had visited the office of Foreign Post and requested to for its re-delivery to his address. Thus, a lenient view was taken and the parcel was sent to Postmaster, Faridabad on 17.05.2017 (copy is Annexure-V to reply) for delivery to addressee. The parcel then reached upto New Delhi Railway Station, there after it was not traceable. A high level joint enquiry was recommended in this case, which will submit report of the final disposal of the parcel and accordingly the action will be taken. Sachin Ahuja's Power of Attorney is not maintainable, it is unlawful and incomplete and, the Power of Attorney is to be rejected
with heavy cost. The complainant is consumer of Australia and not to India. Revenue was paid to Australia.
4 (Replication) - The complainant denied allegations of reply against him and he reaffirms his case as correct. Further, OPs admitted receipt of parcel on 24.1.2017 from the complainant, which was booked as international parcel from Australia and the parcel was addressed to Shri Harish Kumar Ahuja. The parcel was never refused by the Harish Kumar Ahuja on 1.2.2017 nor OPs have filed any proof of refusal, except from internal remarks of postman. The OPs failed to clarified as to what was being done with the parcel for more than three months i.e. between 11.2.2017 (when the parcel was received back) and 17.5.2017 (when the parcel was re-sent to the Harish Kumar Ahuja). The OPs themselves admitted that parcel had reached upto New Delhi Railway Station, and thereafter it was not traceable.
5.1 (Evidence): Complainant Sachin Ahuja has filed his detailed affidavit of evidence coupled with the documentary record, it is on the line of complaint, documents in support thereof as well as narration of event experienced by him as well as experienced by his brother/ attorney Shri Harish KumarAhuja.
5.2: On the other side, OPs filed affidavit of evidence of Shri Abhas s/o Shri Anil Kumar Singh, it is also on the lines of reply, the affidavit does not disclose designation/ official capacity of Shri Abhas, however, he is also author of written statement and beneath his signature, there is rubber stamp of Sr. Superintendent, Foreign Post, New Delhi-110002.
6. (Submission of Parties): Both the parties have filed their detailed written submissions, which are reflection of their cases, which have already been detailed in paragraphs no. 2 and 3 above. However, the complainant also reproduced certain provisions of Consumer Protection Act as well as case law to counter the opposition of OPs. The parties were given opportunity to make oral submissions, Ms. Ratan Bhatnagar, Advocate for OPs availed this opportunity and made submissions. It needs not to reproduce their contentions this moment, as the same will be dealt appropriately.
7.1 (Findings) : The contentions of both the sides are considered and there are many admitted facts, like the complainant had sent the I-phone to his brother Harish Kumar Ahuja, it was also received by the OPs in India, it was also taken to the addressee, it remained undelivered and then addressee had approached the OPs and it was requested by him either to redirect the delivery to the addressee or send it back to the sender/complainant. It is also an admitted case that later on OPs could not locate the I-phone and appropriate enquiry was ordered at its official level, consequently the I-phone remained undelivered to the addressee nor it was sent back for delivery to the complainant at its origin point of Australia.
With this preliminary observations and finding now the other issues are taken one by one.
7.2: The OPs have strongly opposed the complaint that this District Consumer Disputes Redressal Commission lacks territorial jurisdiction since the complainant Sachin Ahuja booked the international parcel from Australia, the revenue was also paid at foreign land, therefore, the Consumer Forum at Delhi lacks the jurisdiction. On the other side, the complainant requests that the Consumer Protection Act, 1986 does not speak of nationality or such allied aspects vis-à-vis his power of attorney holder/ addressee is of Indian address.
This contentions of both the parties are considered from the point of section 11 (Jurisdiction of the District Forum) and its sub-section (2)(a) of the Consumer Protection Act, 1986 defines the jurisdiction on the basis of place of business or branch office of the opposite party and in the present case, the address of OP2 is Foreign Post, Department of Post, I.P. Estate, New Delhi-110002 and of OP1/ Chief Master General, Delhi Circle, is of Meghdut Bhavan , New Delhi-110002. Moreover, there is a specific Cell of Foreign Post of OP1 in the Department of Post, I.P. Estate Delhi. Therefore, there cannot be second opinion except to spell out that when business place of OPs are in the jurisdiction of this Commission/ Forum. The contentions of OPs carry no weight. Accordingly, the objection of jurisdiction is disposed off.
7.3: The OPs also raised another legal objection that no prior notice u/s 80 CPC was given to OPs before filing of the complaint, however, this objection does not sustain since Section 80 CPC is meant for ‘suits’ and not for ‘complaint’ under the provisions of the Consumer Protection Act, 1986 vis-à-vis there is no such mandatory provision in the Act, 1986 akin to Section 80 CPC.
7.4: The OPs have also opposed the complaint strongly that the complainant is residing in Australia, he was obliged to file the first two pages of passport and complaint through an attorney cannot be filed, consequently the complaint is liable to be dismissed.
Per contra, the complainant opposed this contentions in detail in his written argument that the Consumer Protection Act, 1986 does not speak about the nationality of the complainant for filing the complaint stated by OPs. It is just a consumer which also includes any user of such goods, other than the person who actually buys such goods. Hence, the complainant and the power of attorney holder who took the services of Postal Department are the Consumer. Further, in S. Natarajan Vs. V. Thiruvalvan C.P.R. PD (MD) No. 272/2008 and MP (MD) No. I of 2008 it was held that power of attorney holder cannot depose for principal, in respect of the matters of which only the principal can have personal knowledge and over which he is liable to be cross-examined. In this case, the end user/power of attorney holder is Harish Kumar Ahuja (who has to use the I-phone after delivery), he has also witnessed the events held between the date when the first attempt of delivery of consignment was made by the OP1 and later on 13.2.2017 when he received the communications. The complaint is maintainable under Consumer Protection Act, 1986.
The rival submissions are reconciled. At the outset, the OPs could not show any law, rule or regulations that the complaint cannot be filed by an attorney. There is an occasion to go through the provisions of the Indian Post Office Act, 1898 and its Section 13 specifically deals with the postal articles receiving in India from abroad as well as about customs duty. Moreover, the OPs themselves are referred Foreign Post Manual. Secondly, as per rule no. 16 (7) & (3) of the Consumer Protection Regulation 2005, the complainant may appoint its agent to file and prosecute the complaint, a power of attorney holder can also be appointed and such power of attorney holder may further appoint an Advocate for the case. Otherwise, in this case Sachin Ahuja is author of the complaint, evidence has also been filed by him but his attorney Shri Harish Kumar Ahuja is representing him in the case for his brother/complainant Sachin Ahuja. There is no reason for the complainant to deny the position of law and accordingly, these contentions of OPs carry no weight and accordingly the stand are disposed off.
8.1: The remaining issues are taken together as they are interconnecting with each other. The OPs request to dismiss the complaint under Order VII Rule 11 CPC for want of cause of action, in favour of the complainant and against the OPs, apart from there is no specific date of cause of action mentioned by the complainant or it is bogus complaint. Moreover, the complainant is not a consumer within the purview of the Act, 1986 as he is resident of Australia and the complaint was filed in India. There was customs duty of Rs. 4,340/- and in order to escape the customs duty, the parcel was refused.
On the other side, all such contentions are opposed by the complainant by referring and relying upon the provisions of Act, 1986, specifically the definition of 'consumer' has been reproduced in the written arguments, which reads as-
(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
Further, complainant relies upon case "Post Master, Sub Post Office Near Court Road, Sunam District Sangrur Punjab and Others Vs Ajay Goyal in Revision Petition No. 3056 of 2012, Hon' ble NCDRC" that the Government shall not incur any liability by reason of the loss, mis-delivery or delay of, or damage to any postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided; and 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 willful act or default. Whereas, in this case OPs have kept the article in its custody for more than three months, after alleged refusal of delivery of article by addressee, but OPs failed to prove such specific refusal. Thus, OPs gained fraudulently and with mala-fide an expensive I-phone of the complainant, which was neither sent back its origin nor delivered to addressee/ Harish Kumar Ahuja.
8.1A: The rival submissions are analysed and assessed in the light of statutory provisions of law. At the outset, Order VII Rule 11 CPC applies for rejection of complaint when there is no disclosure of cause of action, however, the dispute between the parties has already been referred in paragraph no.1. Non-disclosure of cause of action and want of proof of cause of action are two different concept. Secondly, it is an admitted case of parties that the addressee was not delivered the I-phone despite request by the addressee to redeliver it at his address or send it back to its original place of complainant in Australia. The complainant has annexed the correspondence exchanged between the complainant’s side and the other side, which clearly decipher the dates and detail of letters, which were also mentioned in the body of complaint. Moreover, the OPs have also filed documentary record, one of them is common in the pleading and evidence of the parties, which are also reflecting the details of correspondence and other dates. It suffices to say that there are mentioning of the date of the parties about the episode of postal article containing I-phone. Moreover, the complainant or his brother were also ready to pay the customs duty and other charges, that is why there were approaching the OPs and also writing them to deliver or redeliver the postal article containing I-phone. It is also crystal clear in their evidence. Thus, there was disclosure of cause of action, there exists cause of action and such cause of action is in favour of complainant and against the OPs, which has also been proved by the complainant against OPs.
Lastly, whether the complainant or his brother/ addressee is a consumer? The OPs are denying it. Whereas the entire complaint and plea of complainant is that they are consumers. The definition of 'consumer' is already reproduced in para no. 8.1 above. It is wide definition. Not only, it includes buyer of the goods but also user of the good. Similarly, not only it includes a person who hires or avails of service but also includes beneficiary of such services, other than the person who hires or avails of the services. It squarely covers the case of complainant that he availed the postal services of OPs by sending a postal parcel containing I-phone to be delivered to the addressee/his brother, who was to use I-phone after its receipt. The complainant is sender of I-phone by availing postal services of OPs and complainant’s brother was to receive I-phone through the services of OPs. Thus, it is held that the complainant as well as his brother are covered in the dentition of 'consumer'. The OPs' plea that it is bogus complaint or revenue was paid in Australia are just hollow objections, appears to have been taken just for the sake of objections.
8.1B: Since, it is an admitted case of OPs that postal article containing I-phone was not delivered to the addressee in India nor on the request of addressee it was redelivered to him nor the OPs have sent it back to the complainant in Australia, apart from OPs also admit that the I-phone was lost by them. The OPs have referred a rule 20 of Foreign Post Manual, not only rule 20 but other relevant rules have also been perused and another relevant rule is no.1. Rule 1 talks about the member Countries of Universal Postal Union and as per Post Office Guide Part-II, name of India is at sl. no. 69 and name of Australia at sl. no.6. The member countries in agreement has arrangement of postal service (both for 'letter post' and 'postal parcel'). The Rule 20 of the Manual provides procedure that when article remains undelivered, the article is to be delivered back to place of origin and instructions are also laid down to be followed as to how such article will be enveloped/wrapped and endorsed 'returned' etc. so that it reaches the place of origin. However, OPs failed to send it back to place of origin as it was lost by them and official inquiry was also directed by OPs. It is a clear case of deficiency in the services of OPs. The complainant was aware of customs duty and they were also prepared to bear it, thus there is no weight in the stand of OPs that delivery of I-phone was not taken to avoid customs duty. In fact it is an objection just for the sake of objection by OPs to shield its own faults as no occasion came for addressee even to see the parcel despite visiting office of OPs and requesting for its delivery at address of addressee. .
8.2: The complainant has established his case against the OPs in respect of deficiency in services as well as unfair practice, consequently the OPs are liable to return the price of I-phone, on which customs duty was also levied, the complainant and his brother were even ready to pay the customs duty but OPs failed to deliver the postal parcel containing I-phone. The complainant has narrated price of the I-phone as Rs. 35,000/-, there is no other contrary evidence by the OPs, thus OPs, jointly and severally, are liable to pay cost/ price of Rs. 35,000/- to the complainant.
The complainant claims compensation of Rs. 1,00,000/-, the evidence is also reiteration of the same claim but without any calculations or criteria except that the compensation is being claimed on account of harassment, mental agony, inconvenience and running from pillar to post. The matrix of case is manifesting that the complainant and his brother have been pushing hard to obtain the I-phone by approaching the OPs repeatedly. Had the complainant not come forward by this complaint, there was no chance for him for redress his grievance and OPs have also not offered any monetary solace to the complainant. Then why the complainant shall suffer for it? Consequently, considering the price of I-phone the compensation of amount Rs. 30,000/- in favour of complaint will justify both ends.
8.3: Accordingly, the complaint is allowed in favour of complainant and against the OP1 & OP2 to pay jointly and severally a sum of Rs.65,000/- (Rs.35,000/- cost of the I-phone and Rs. 30,000/- as compensation), which is to be paid within 30 days from the date of receipt of this order by the OPs.
In case OPs fails to make the payment within that period of 30 days from receipt of order, in that eventuality the OPs will be liable to pay interest 6% p.a. on amount of Rs.35,000/- from date of filing of complainant till realization of the amount.
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
10: It is appropriate to record that this Commission is facing many difficulties in day to day its functioning, for want of regular PA and stenographer, since only one stenographer Gr-III is posted for all work.
11. Announced on this 1st day of April, 2023 [चैत्र 11, साका 1945].
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
