Punjab

Ludhiana

CC/14/876

Bharat Kapur - Complainant(s)

Versus

Editor Readers Digest - Opp.Party(s)

Compl.in person

10 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                    Complaint No: 876 of 23.12.2014

                                                                   Date of Decision: 10.06.2015

                    

Bharat Kapur, 23, Sukhmani Enclave, P.O. Rajguru Nagar, Ludhiana.

.…Complainant

Versus 

1. The Editor Reader’s Digest, 1201, 12^th Floor, Tower 2-A, 1, India Bulls Centre, S.B.Marg, Lower Parel West, Mumbai-400013.

2. Superintendent of Post Offices, Ludhiana City Division, Ludhiana-141001.

3. Chief Post Master General, Delhi Circle, Meghdoot Bhawan, Link Road, New Delhi-110001.

…..Opposite parties

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh.R.L.Ahuja, President

                    Sh.Sat Paul Garg, Member

 

Present:     Complainant Sh.Bharat Kapur in person.

                   Ms.Ruchi Sekhri, Advocate for OP1.

                   Sh.Ankur Ghai, Advocate for OP2 and OP3.  

 

 

ORDER

 

 (SAT PAUL GARG, MEMBER)

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Bharat Kapur, 23, Sukhmani Enclave, P.O. Rajguru Nagar, Ludhiana (herein-after in short to be referred as ‘complainant’) against The Editor Reader’s Digest, 1201, 12^th Floor, Tower 2-A, 1, India Bulls Centre, S.B.Marg, Lower Parel West, Mumbai  and others (herein-after in short to be referred as ‘OP’)- directing them to pay Rs.1.00 lac compensation singly or severally to the complainant for causing harassment and mental agony, to pay Rs.50,000/- as incidental cost and to pay Rs.50,000/- as cost of legal proceedings to the complainant.

2.                Brief facts of the complaint are that after paying the annual subscription for Reader’s Digest, complainant was allotted ID-RD 14002164616 in June 2014. Even the first two issues of the magazine were delivered quite late from the stamped date of posting. However, complainant took the transit delay in the usual stride. But when the complainant received the magazine posted on 5.6.14 received and delivered on 25.6.14, the complainant submitted a formal complaint on 26.6.14 for an enquiry for the transit delay. The Rajguru Post Office, vide no.448 dated 3.7.14 referred his complaint to the Superintendent, Ludhiana City Division stating that there had been no delay at their end. Only after a couple of meeting with Postal Authorities in Ludhiana and subsequent clarifications the complainant could convince them that the delay in the delivery of the magazine was occurring due to the transit snag, which should rather be enquired. With some hit and trial method, Ludhiana Postal Authorities then approached the Superintendent of Post Office Delhi, South Division with copies to Chief Post Master General (CPMG), New Delhi on 23.7.14 to enquire for the reasons of possible delay at the posting stage. With no response, the complainant took the lead to remind the Superintendent Delhi South Division and CPMG, vide Regd. Letter on 3.8.14. With no communication from Delhi for the letter of 3.8.14 the complainant forwarded a direct complaint to CPMG, New Delhi vide Registered post on 22.8.14 with copies of Supdt. Delhi South Division and Ludhiana City Division. In reply, the Delhi South Division apprised, vide letter dated 20.8.14 (received on 25.8.14) stating that Reader’s Digest was not having any registration with them. So the complainant was back to square one which is the handling division of postage of Reader’s Digest from Delhi? On 12.9.14 the complainant received a communication dated 8.9.14 from the Public Grievance Section of CPMG, New Delhi advising the Supdt. New Delhi Sorting Division to conduct an enquiry within 7 days and advise the complainant accordingly. On 15.9.14 the PRO from Ludhiana Postal Division visited Complainant’s residence to take the firsthand account of the complete case. As per the suggestion, the complainant prepared a Tabulated List detailing the dates of Posting and the Delivery of Magazine, one private speed post addressed to the complainant and with a covering letter sent a Registered reminder to the CPMG, New Delhi with copy of Supdt. South Delhi on 16.9.14. Still there was no response either from CPMG, New Delhi or its allied office to whom the enquiry was ordered on8.9.14 and despite 5 clear reminders, on different dates by Ludhiana Division. The complainant submitted ye another formal complaint against the callous attitude to CPMG, New Delhi, vide registered letter on 14.10.14 enclosing all the previous relevant communications of the subordinates. The pertinent complaint still persisted. Instead of the late delivery, the October issue of the magazine went missing i.e. not delivered at all. On 18.10.14, finally the complainant got the one and the only relevant communication in respect to the matter of late delivery from the Inquiry Officer, Supdt. New Delhi Stg. Division, vide letter dated 15.10.14, which stated that as per the finding on 29.9.14 “the complainant’s copy was available in the lot of mail tendered from the Press. The said available copy of the complainant was sorted and bagged as per Due Mail & Sorting List approved for 2^nd Class mail and all prepared bags were dispatched to their respective TMOs on the same day for further disposal without left over of any mail/bags in NDPSO. On 21.10.14, after the receipt of Enquiry Report of New Delhi Stg. Division, the complainant sent another Registered letter with the enclosure of the copy of Enquiry Report dated 15.10.14 (besides vanilessly tried several times to reach on telephone) to Customer Care, Reader’s Digest at Noida. It would be quite evident from the contents that the complainant had taken a serious note of their indifferent attitude despite having been apprised twice of the agitating matter of the late/non delivery of the magazine since June, 2014. The complainant made numbers of calls, issued several letters and reminders to the OPs, but all in vain. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 appeared through his counsel and filed written statement taking preliminary objections that the present complaint deserves to be dismissed qua the OP1, as the same has been erroneously filed in the name of non-existent entity; complainant has not approached this Forum with clean hands; the complaint filed by the complainant suffers from the vires of Suppressio Veri and SuggestioFalsi as the complainant is guilty of suppressing material facts from this Forum; complaint is wholly misconceived, frivolous and unsustainable in law and is liable to be dismissed. Further submitted that OP1 has been dispatching the magazine on 5^th day of every month and any delay in the receiving of the magazines by the complainant was due to delay caused by the postal authorities, which was completely beyond the control of the OP1. The complainant has raised grievance in relation to the issues of the magazine for the months of June, October and November. It is submitted that as per the records maintained by the OP1, the magazine for the month of June 2014 was dispatched to the complainant on time i.e. on 5 June 2014, which is also admitted by the complainant in paragraph 7 of the complaint. The relevant averment of the said paragraph is set out as under:-

“I have received the magazine posted on 5.6.14 received and delivered on 25.6.14.”

 

                   Even with respect to the magazine for the month of October and November 2014, the OP1 had dispatched the same on 29^th September 2014 and 5^th November 2014 respectively. Further submitted that in relation to the monthly issue for October 2014, the complainant at paragraph 19 of the complaint has himself admitted that there was no irregularity on dispatch for the issue of October 2014. The relevant averment is set out herein as under:-

“After analyzing the aforesaid findings that there had been no irregularity on dispatch, a question arises that where had the copy of October issue of Reader’s Digest vanished……….”

 

                   In paraswise reply, denying the contents of all other paras of the complaint, OP1 prayed for the dismissal of the complaint.

4.                On notice of the complaint, OP2 and OP3 appeared through their counsel and filed written statement taking preliminary objections that the complaint is false, frivolous and vexatious and liable to be dismissed; the complaint is not maintainable being barred by law; the complainant is not a consumer within the meaning of Consumer Protection Act; the answering Ops is exempted from any liability under the provisions of Post Office Act, 1898. Section 6 of the Post Office Act, 1898 reads:-

“6.       Exemption from liability for loss, mis-delivery, delay or damage- the government shall not incur any liability by reasons of the loss, mis-delivery or delay of, damage to, any postal articles in course of transmission by post, except in so far as such liability may in expressed 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.”

 

                   There is no legal obligation on the answering OPs towards the OP1 or the complainant. The answering OPs have never given any assurance to OP1 and to the complainant guaranteeing the delivery of articles in particular time frame. The OP1 could have availed the faster service of speed post or other modes ensuring quick delivery. The complainant has never made any payment to the answering OPs and thereby cannot claim any relief or damages from the answering OPs. The postal department is branch of public service subject to the provisions of the Indian Post Office Act made there under. The OP1 has sent the postal articles to the postal office for transmission of the same to the complainant and by virtue of this, the OP1 or the complainant does not deem to have entered into any contract with the answering Ops or the Postal Department of the Government of India. The OP1 has merely availed the service statutorily providing by the government. On merits, denying the contents of all other paras of the complaint, OP2 and OP3 prayed for the dismissal of the complaint.

5.                Complainant has adduced the evidence by way of his duly sworn affidavit Ex.CA against the OP1, wherein, the same facts have been reiterated as narrated in the complaint and also attached documents Ex.CA1 to Ex.CA15 and attached his another affidavit against OP2 and OP3 Ex.CCA alongwith documents Ex.CCA1 to Ex.CCA11. On the other hand, Ld. counsel for OP1 has adduced the evidence by way of duly sworn affidavit of Sh.Manoj Madhavan s/o Mr.P.Madhavan Nair aged about 36 years, Authorized Representative of M/s Living Media India Limited Ex.RA1, wherein, the same facts have been reiterated as narrated in the written statement and also attached documents Ex.R1 to Ex.R6. Whereas, Ld. counsel for OP2 and OP3 has adduced the evidence by way of duly sworn affidavit of Sh.Suresh Kumar Sharma aged about 50 years, Superintendent Post Office, Ludhiana Ex.RA2, wherein, the same facts have been reiterated as narrated in the written statement.

6.                Case was fixed for arguments. Complainant has filed written arguments wherein it was averred on the facts narrated in the complaint. Complainant has also relied upon the judgements passed in cases titled as The Post Master General & another Vs Calcutta Telephones & others- I (2002) CPJ 299 passed by West Bengal State Commission, Calcutta, The Executive Engineer and Administrative Officer & others Vs R.Perumal- I (2002) CPJ 301 passed by Tamil Nadu State Commission, Chennai, Nirmal Panda Vs Post Master General & Others- II (1993) CPJ 988 passed by Orissa State Commission, Cuttack, M/s Feel Fresh Vs National Insurance Co. Ltd.- II (1993) CPJ 993 passed by Goa State Commission, Panaji.

7.                Refuting the allegations leveled by the complainant, Ld. counsel for OP1 filed written arguments, whereby averred that there is not even a whisper in the entire complaint that the service provided by the OP1 was deficient. Infact, the Op1 had always dispatched the magazines on time to the complainant, which is also evident by the complainant’s own admission in paragraph 19 of the complaint. The relevant portion of the said paragraph is set out as under:-

“After analyzing the aforesaid findings that there had been not irregularity on dispatch……….”

                   Further averred that the complainant’s main grievance appears to be against the concerned post office (OP2 and OP3) as the complainant has raised an issue in relation to the alleged non-delivery of the magazine and not for dispatch of the same, which is evident from the complainant’s averment made in paragraph 7 of the complaint. The relevant portion of the said paragraph is reproduced as under:-

“I distinctly remember that even the first two issues of the magazine were delivered quite late from the stamped date of posting.”

 

                   It is further pertinent to note that the OP1 had time and again dispatched the magazines to the complainant. However, if there was any delay in the delivery of the magazines that could not be attributed to the OP1 as it did not have the control over the post office, which was the mutually chosen mode for delivering the magazines. From a bare perusal of paragraph 32 (Cause of action) of the complainant, it is evident that the alleged cause of action, if any, have arisen only against the postal authorities and not against the OP1. The OP1 has completed its obligations under the subscription by dispatching the “Reader’s Digest” magazine in a timely manner by the 5^th day of every month. The complainant has admitted the same in his complaint, when the enquiries conducted by the OP2 and OP3 revealed that the June, October and November editions of the Reader’s Digest magazines were received by the Post Office in a timely manner. As such, the deficiency in service, if any, was on the part of OP2 and OP3, something that was beyond the control of OP1.

8.                Ld. counsel for OP2 and OP3 also filed written arguments, whereby submitted that the complainant has never made any payment to the OP2 and OP3 and thereby cannot claim any relief or damages from OP2 and OP3. There is not privity of contract between the complainant and OP2 & OP3. The complainant is not a consumer qua the OP2 and OP3. No service of the OP2 and OP3 were engaged by the complainant nor OP2 & OP3 given any assurance to the complainant guaranteeing the delivery of the articles in a particular time frame.  The post office department provides service of delivery of postal articles of various categories, which includes, ordinary post, speed post, registered post etc. The charges and the time taken by each kind of service varies. The ordinary post is the cheapest mode of sending the articles/letters by post and it takes comparatively longer period to reach. The OP1 has availed the service of postal department and as per the service taken by the OP1, the goods have been delivered. There has been no undertaking by the postal department or the OP2 and Op3 to deliver the goods/articles in a particular time. The delivery has been made as per the ordinary schedule and normal course of business. Further averred that postal department or the OP2 & OP3 is not a common carrier. The OP2 & OP3 is not an agent of sender for sending all the postal articles to the address. The postal department is branch of public service subject to the provisions of the Indian Post office Act made there under. The Postal department as well as OP2 & OP3 are granting complete immunity from liability for loss, mis-delivery, delay to the postal articles. There has been no fraudulent act or default by any postal employees or the OP2 & OP3 for the same. Further averred that OP2 & OP3 are exempted from any liability under the provisions of Post Office Act, 1898. Section 6 of the Post Office Act, 1898 reads:-

“6        Exemption from liability for loss, mis-delivery, delay or damage- the government shall not incur any liability by reasons of the loss, mis-delivery or delay of, damage to, any postal articles in course of transmission by post, except in so far as such liability may in expressed 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.

 

                   Further averred that from the first complaint of the complainant dated 26.6.14, information of every correspondence made with SPOs/SSPOs/CPMG Delhi has been sent to the complainant. Test letters/paid test letters have been posted which was promptly received by the complainant showing that there was no delay nor any detention of any letter addressed to the complainant at Ludhiana point or other post office of Ludhiana. The complaints so received were forwarded to CPMG Delhi Circle (New Delhi) to intervene in the matter and arrange to enquire the matter to eliminate the delay in transit with copy endorsed to CPMG (Punjab) Chandigarh and complainant. The matter was to be enquired on priority basis. Text letters/paid text letters posted to the complainant shows satisfactory result, which shows that there is no delay or detention by OP2 & OP3.

9.                We have gone through the pleadings of the complainant and the written arguments submitted on behalf of the parties alongwith the judgements placed on record by the complainant as well as defence taken by the OPs and have also perused the entire record placed on file.

10.              It is evident that complainant subscribed the Reader’s Digest Magazine for one year through his Newspaper vender and was allotted ID bearing no.14002164616. After paying the annual subscription for Reader’s Digest, two issues of the magazine were delivered quite late from the stamped date of posting. He received the magazine posted on 5.6.14 received and delivered on 25.6.14 and approached the OPs time and again and made several complaints and written several letters and reminder to the higher authorities of OPs. But with no effect. From the perusal of the record placed on file reveals that there appears to be no liability of OP2 and OP3. Further the complainant has not paid anything to OP2 and OP3. They were only under obligation of OP1 to dispatch and deliver the said magazine to the complainant on time. As such, the complaint cannot be considered to be consumer qua OP2 and OP3. However, it was incumbent on the part of OP1 to dispatch and get it delivered the said magazine on time by whatsoever means it may be or as agreed to. Thus OP1 is found to be deficient in their services.

11.              Sequel to the above discussion, the present complaint is partly allowed and OP1 is directed to deliver the magazine by whatsoever means it may be to the complainant on time as agreed to. Further OP1 is directed to pay Rs.4000/-(Four thousand only) as compensation and litigation expenses compositely assessed to the complainant. Order be complied within 30 days from the receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                             (Sat Paul Garg)                                 (R.L.Ahuja)

                                  Member                                          President

Announced in Open Forum.

Dated:10.06.2015 

Hardeep Singh