IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 19^th  day of   November 2009

CC.155/2006

Rekha Sathyan,

Reshmi Nivas,

P.O.Kadirur, Thalassery                                   Complainant

(Rep. by Adv.C.G.Arun)

1. Chief Post Master General,

   Thiruvananthapuram, Kerala.

2. Superintendent of Post,

   Thalassery.P.O.

3. Post Master,

   Ummenchira Post office,

   P.O.Ummenchira, Thalassery.                        Opposite parties

4. Mr.Hareendran,

   Post Man,

   P.O.Ummenchira,

   Thalassery.

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay Rs.1, 00,000/- as compensation together with the cost.

            The case of the complainant in brief is as follows: The complainant lend an amount of Rs.2, 00,000/- to one A.Latheef, S/o.Mammu and he has issued two cheques dt.29.6.04 and 29.7.04 respectively drawn on Indian Overseas Bank Ltd Kadirur branch for an amount of Rs.1, 00,000/- each. The complainant presented one cheque dt.29.6.04 before the Bank for collection. But the cheque was dishonoured due to insufficiency of funds in the account of A.Latheef. Registered lawyer notice was sent to Latheef on 28.12.04 demanding him to pay the cheque amount Rs.1, 00,000/-within 15 days of the receipt of the notice. This notice dt.28.12.04 addressed to A Latheef was delivered by 4^th opposite party on 1.1.05 to one Mammu, the father of the addressee. Since the addressee failed to comply the demand in the registered notice within 15 days of the receipt of notice, complainant filed criminal complaint through her advocate Sri.N.Vionod kumar against Latheef before the Chief judicial Magistrate, Thalassery and it was received as C.M.P.443/05. During the enquiry the court summoned 4^th opposite party to ascertain whether the registered letter No.1894 dt.25.12.04 was delivered to the addressee or to his authorised agent. But to the great surprise 4^th opposite party deposed that he did not deliver the registered letter to the addressee and the said letter was delivered to Mammu the father of the addressee. 4^th opposite party further deposed that Mammu was not authorized to receive registered letter of the addressee. He did not give any satisfactory reply for the wrong delivery of the registered letter. Till the date of examination of 4^th opposite party complainant was under the impression that the said registered letter was delivered by 4^th opposite party to Mammu on the basis of proper authorization. Due to the wrong delivery of the letter by 4th opposite party the complaint filed by the complainant was dismissed by the Additional Chief Judicial Magistrate, Thalassery on the ground that notice was not served on the addressee, who was the accused. The act of the opposite parties is in violation of the rules and amounts to deficiency in service. Due to the wrongful act of opposite party the accused Latheef got a chance to escape from the clutches of criminal prosecution for an offence punishable under section 138 of Negotiable Instruments Act. Due to the act of the opposite party the complainant had to suffer great mental pain and hardship and financial loss. Though legal notice was sent to all the opposite parties only 2^nd opposite party replied stating that there was no willful default on their part. Hence this complaint.

            Pursuant to the notice opposite parties entered appearance and filed version jointly. The content ions of the opposite parties in brief are as follows: Opposite parties admits that a registered letter under No.1894 of Thalassery courts post office was received at Ummenchira post office and delivered to father of the addressee on 1.1.2005. The registered letter was accepted by Sri.K.Mammu by misinforming the officiating post man that he used to accept “Tappals” for and on behalf of his son as per authorization Sri.A.Latheef, who was out of India during the period. It is also admitted that 4th opposite party Sri.M.P.Hareendran, an Extra Department Employee during the period from 21.12.04 to 5.1.05. He was newly ordered to officiate as postman purely as an outsider on daily wages as a stop-gap management and he joined the post on 27.12.04 only four days prior to the alleged wrong delivery. Since 4^th opposite party is not a departmentally qualified employee he was not well worsed with the rules and regulations of the Department. The alleged registered letter was brought to addressee’s residence and delivered to sri.Mammu, father of the addressee Sri.A.Lathef. Since the 4th opposite party was misinformed that his son Sri.Latheef had authorized him to accept Tappals, the registered letter was delivered to Sri.Mammu in good faith. Wrong delivery was brought to light only when  4^th opposite party was summoned to Additional Chief Judicial Magistrate Court, Thalassery in connection with CMP.No.443/05. The delivery cannot be treated as a wrong delivery since it was delivered to a responsible person available in the residential address. Department in no way connected with the dismissal of the CMP. It can be seen that the addressee was subsequently informed over phone by his brother Rafeek, there by the very purpose of sending a registered letter was served. Opposite parties have immunity under section 6 of the Indian Post Office Act which is as under Exception from liability for loss, misdelivery, delay or damage? The circumstances for the delivery of the said registered letter to a person other than the real addressee had been explained to the sender of the registered letter in reply to his lawyer notice. In view of the section 6 it is prayed to exonerate the opposite parties.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Relief and cost.

            The evidence consists of the oral testimony of   PW1, DW1 to DW3, Ext.A1 and A2 series, B1 to B3.

Issues 1 to 3

            Admittedly complainant sent a registered letter to one Mr.Latheef. The concerned postman 4^th opposite party delivered the registered letter to the father of the adressee Sri.K.Mammu. The case of the complainant is that the registered letter was sending for reason of dishonouring of a cheque. Since the addressee failed to comply the demands of notice within 15 days of receipt of the same complainant filed criminal case against Latheef before the Chief Judicial Magistrate, Thalasery as CMP 443/05.Concerned postman 4^th opposite party was summoned before the court for the purpose of ascertaining whether the registered letter N O.1894 dt.24.12.04 was delivered to the addressee or to his authorized agent. 4^th opposite party deposed  that he did deliver the registered letter to the father of the addressee. 4^th opposite party further stated that Mammu was not authorized by the addressee to receive registered letter addressed to him. Complainant further alleged that opposite party did not give any satisfactory explanation for the wrong delivery of registered letter. Complainant had been under the impression that 4^th opposite party delivered the registered letter on the basis of proper authorization complainant alleges that on the reason of wrong delivery the complaint was dismissed by the CJM, Thalassery on the ground that the notice was not served on the addressee, the accused. Opposite parties on the other hand though admitted the fact that the registered letter was delivered to the father of the addressee on 1.1.2005. But it was contended that the registered letter was accepted by Sri.K.Mammu by misrepresenting that he used to accept Tapals for and on behalf of his son as per authorization Sri.A.Ltheef, who as out of India during the period. Ultimately the case of the opposite party is that the letter was delivered to Sri.Mammu in good faith and the wrong delivery was brought to light only when 4^th opposite party was summoned to ACJM, Thalassery. The order of ACJM Para 5 says thus: “Taking into consideration of the evidence led in this case by CW1,the postman coupled with the evidence in Ext.C1 it can be held that the addressee of the postal article is ignorant about the notice said to have been sent by the petitioner in his name. So it can be held that he has not received the notice sent by the petitioner”. It is also stated that “even without any authorization from the addressee the respondent the postal articles was delivered to somebody else from the post office. In such a circumstances the procedural non compliance with Section 138 of Negotiable instruments act as such it is not possible to take cognizance on the complaint against the accused under section 138 of NIA. Therefore the complaint itself is liable to be dismissed”.

            The order Cleary reveals that the complaint was dismissed on the ground that the above said postal article was not delivered to the addressee. Complainant sent Ext.A1 lawyer notice to all the opposite parties demanding Rs.1, 00,000/- for deficiency in service and an amount of Rs.50, 000/- for mental agony. The 2^nd opposite party alone sent reply stating that there is no willful default on their part and therefore they are not liable to pay any amount to the complainant as compensation. Ext.A2 series proves that lawyer notice was sent to all the opposite parties. Opposite parties have no case that the letter sent by 2^nd opposite party was for and on behalf of all opposite parties? They have not even taken such plea in their version also. Anyhow the alleged registered postal article in the name Latheef was not delivered to him but delivered to his father that too without authorization and hence the complaint dismissed.

            In the cross examination DW3 Mr.Hareendran deposed that “ D½³Nnd  post office  \n¶p a½p-hm-sW-¶-dn-ªp-sIm-­p-X-s¶bm-Wv U-en-hdn sImSp-¯-Xp. e¯o-^m-sW¶p hnNm-cn¨p sImSp-¯p-t]m-b-X-Ã.  It is clear that letter was given to Mammu knowing well that letter was delivering to Mammu and not to Latheef, the addressee. He has also deposed that “ HmX-ssd-tk-j³ Ds­-¶p-]-d-ªm  post office h¶p ]cn-tim-[n-t¡-­-Xm-bn-cp¶p F¶p  And-bm-am-bn-cp-¶p….Registered X]m h¶m ]men-t¡­ N«-§Ä F\n-¡-dn-bm-T. Cu tIÊn   authorization D­p F¶ [mc-W-bn-em-Wv sImSp-¯p-t]m-b-Xp.. . . .D-cp-¸Sn amdn-sIm-Sp¯p t]mb-Xp-sIm­p Hcp sN¡v tIkv Xf-fn-t¸m-b-Xmbn a\-Ên-em-¡n-bn-«pWSp .. . . .e¯o^v Øe-¯nà F¶-Im-c-y-T-F-\n¡v a\-Ên-em-bn-cp-¶p.   It has come out in evidence that the delivery is done without verifying the authorization and knowing well that the addressee Latheef was out of station. 3^rd opposite party is also admitted that he knew the rules which has to be followed in the case of registered postal article. So negligence is proved beyond doubt on the part of opposite parties. It can be seen that the main duty of a post man is nothing but delivery of postal articles to addressees. It is quite clear that there are two types of articles registered and unregistered articles. The only thing to remember in the case of registered articles is that the same can be delivered to persons other than the addressee only when he is  authorized. If that is not done by verifying  authorisation there is no hope for  justifying it by  merely saying it is done in good faith. Hence we hold that there is deficiency on the part of opposite parties.

            Now the question arose whether the opposite parties have immunity under section 6 of the Indian Post office. Section 6 lay down as follows:

            Section 6 “ Exemption from liability for loss, misdelivery, delay or damage – The Govt. shall not incur any liability by reason for the loss, misdelivery or delay or damage to any postal articles in course of transmission by post, except in so far as  liability may in express terms be undertaken by the central Govt. as hereinafter provided, and no officer of the post office shall incur any liability by reason of any such loss, misdelivery, delay or damage unless he has caused the same fraudulent or by his willful act of default.”

            The evidence given by the 4^th opposite party himself shows that despite the fact that the addressee is out of station, it was delivered to some one else knowing fully well that he was not the addressee. The non verification can only be considered as willful act, which we cannot even expect from a man of ordinary prudence and it was deliberate and intentional negligence on the part of the opposite parties which amounts to deficiency of service. In Lucknow Development Authority Vs.M.K.Gupta, III(1993)CPJ7(SC) the Hon’ble Apex court has held as follows: “Today the issue thus is not only of award of compensation but  who should bear brnut.  The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic out look. The authority empowered to function under a statute while exercising power discharges public duty. It has to sub serve general welfare and common good. Thus we hold that the opposite parties are liable for the deficiency in service.

            Coming into the amount of compensation, it has to be taken into account what is  the actual  damage that has been sustained by the complainant. Of course the prayer is to pay Rs.1, 00,000/- for the deficiency of service and also for the mental agony. It can be seen that complainant has not proved or attempted to be proved the actual loss that has been sustained by him. Complainant has lost his case and the subject mater of cheque was issued for Rs.1, 00,000/-. That does not mean it can be mechanically assume that the complainant lost Rs.1, 00,000/- cheque amount until and unless it is proved that the other available remedies to recover the amount has been exhausted. But it is certain that he has suffered some economic loss though it is not easy to quantify, further more he might have suffered considerable amount of mental agony and hardship on his failure of criminal case before the ACJM, Thalassery. Hence considering the entire aspect we are of opinion that a total amount of Rs.60, 000/- as compensation will met the end of justice. Complainant is also entitled for Rs.1000/- as cost of these proceedings. Thus issues 1 to 3 are found in favour of complainant and order passed accordingly.

            In the result, the complaint is allowed directing the opposite parties to pay a sum of Rs.60, 000/- (Rupees Sixty Thousand only) as compensation and an amount of Rs.1000/-(Rupees One thousand only) as cost of these proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order against the opposite parties under the provisions of consumer protection act.

                                          Sd/-                          Sd/-                              Sd/-

                                    President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy of the lawyer notice sent to OP

A2.Postal acknowledgement cards

Exhibits for the opposite parties

B1.Copy of the National Commission Order dt.2.12/99

B2.Copy of the reply notice dt.9.11.05

B3.Statement of B Rafeeq

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.A.Mukundan

DW2.Krishna Naik

DW3.M.P.Hareendran

DW4.K.Narayanan

                                                /forwarded by Order/

                                                Senior Superintendent

Consumer Disputes Redressal Forum, Kannur