Haryana

Jind

cc/495/2011

Roshan Lal - Complainant(s)

Versus

Head Post Master - Opp.Party(s)

Sh Vikas Sharma

04 Aug 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND. 
                                           Complaint No. 495 of 2011
   Date of Institution: 8.12.2011
   Date of final order: 9.8.2016

Roshan Lal Saroha son of Sh. Daiya Ram r/o village and P.O. Kiwana, Tehsil Samalkha, District Panipat. 
                                                             ….Complainant.
                                       Versus
Head Post Master, Head Post Office, Jind, District Jind.
The Chief Post Master General, Haryana Circle, Ambala Cantt.
The Sr. Superintendent of Post Office, Karnal Division, Karnal
                                                          …..Opposite parties.
                          Complaint under section 12 of
              Consumer Protection Act, 1986.

Before: Sh. Dina Nath Arora, President.
    Smt. Bimla Sheokand, Member.
            Sh. Mahinder Kumar Khurana, Member.    

Present:  Sh. Vikas Sharma Adv. for complainant.
              Sh. Vijender Sharma ASPO for opposite parties. 
                   
ORDER:

             The brief facts in the complaint are that complainant’s son Avinash Saroha is living at Dublin, Ireland and the complainant sent an envelope containing some important documents through speed post through Head Post Office, Jind to his son at Dublin vide postal receipt No. EH034308039IN on 29.1.2010 and the complainant had paid Rs.1094/- as speed post charges as well as the cost of insurance of speed post to the tune of Rs.5,000/-. It is further alleged that at Dublin 
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the son of complainant  has to submit these documents periodically for getting  for further admission  but the aforesaid documents could not reach at its destination. The speed post has neither been delivered to the son of the complainant nor it has been returned back to the complainant. Due to the non-delivery of the said envelope, the son of the complainant has deprived for getting further admission as well as study Visa and suffered monitory loss. In this regard the complainant wrote a letters dated 18.2.2010 and 8.9.2010 to the opposite party No.1 for non-delivery of above said envelope but the opposite parties did not pay any heed to enquiry about the fate of the registered envelope. The complainant has also served a legal notice dated 18.1.2011 upon the opposite parties No.2 and 3 and on the legal notice the opposite party No.3 sent the baseless reply stating that the matter is under enquiry. It is further contended that due to non-delivery of the above said speed post envelope containing necessary documents, the complainant’s son suffered a huge loss in his academic carrier as well as in monetary manner. Deficiency in service on the part of the opposite parties is alleged. It is prayed that the complaint be accepted and opposite parties be directed to  pay a sum of Rs.2,00,000/- as compensation  on account of mental pain and agony  to the complainant. 
2.    Upon notice, the opposite parties have appeared and filed the written statement stating in the preliminary objections i.e.  As per Section 6  of Indian Post Office Act-1898 exempt post office from any liability for loss, mis-delivery or delay or damage to any postal article 
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in the  course of transmission by post except to such extent as the liability may be under taken by the Govt. in express terms. As per Section 29 of Indian Post Office Act-1898 the Central Govt. has the power to make Rules as to registration and the manner of delivery etc. It is further alleged that  as per letter No. BDC/SP/1-17/99 dated 10.5.2002 the period of preservation of records-speed post/express post is only six month from the date of issue/delivery of speed post article. On merits, it is contended that  earlier the complainant has filed an complaint before the District Forum at Panipat and the same was dismissed as withdrawn vide order dated 14.9.2011 and the case was closed after receipt of the decision of District Forum, Panipat. After that no correspondence was made by the complainant and as such there is no deficiency in service on the part of the opposite parties. Dismissal of complaint with cost is prayed for. 
3.    In  evidence, the complainant has produced his own affidavit Ex. C-1 , copy of  application dated 18.2.2010 Ex. C-2, copy of postal receipt dated 29.1.2010 Ex. C-3, copy of application dated 8.9.2010 Ex. C-4, copy of legal notice dated 18.1.2011 Ex. C-5, copies of postal receipts Ex. C-6 to Ex. C-8, copy of postal receipt dated 29.1.2010 Ex. C-9, acknowledgement Ex. C-10, copies of reply of legal notice  dated 18.2.2011 Ex. C-11 and Ex. C-13, copy of order dated 14.9.2011 Ex. C-12 and envelopes Ex. C-14 to Ex. C-16 and closed the evidence.  On the other hand, the opposite parties have produced the  copy of section 6 of the Indian Post Office Act, 1898 Ex. OP-1, copy of section 29 of the Indian Post Office Act, 1898 Ex. OP-2, copy of  period of 
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preservation of record-speed post/express post Ex. OP-3 and reply of legal notice dated 18.2.2011 Ex. OP-4 and closed the evidence. 
4.    We have heard Ld. counsel of both the parties and also perused the record placed on file. The counsel for complainant argued that the complainant had sent some important document through speed post dated 29.1.2010 and he had paid Rs.1094/- as speed post charging including cost of insurance and article  insured to the tune of Rs.5,000/-  but the opposite parties have failed to deliver the same at his destination. In this regard complainant  immediately moved an application on 18.2.2010 vide letter Ex. C-2 to the opposite parties for not delivering the documents at its destination. The complainant also moved an application on 8.9.2010 as Ex. C-4 but opposite parties have not giving the reply of the letter ultimately he sent the notice through their counsel on 18.1.2011 vide Ex. C-5 the opposite parties have duly received the first letter as well as the notice and they have given the  reply and  admitting that complainant had booked the articles through speed post and also stated in reply of the notice that the matter is still under enquiry but they have failed to place on the file the enquiry report whether the articles have been misplaced or destroyed or mis-placed in transit. The above  act show their will full act or default they cannot escape from their liability and they can not take the shelter of Section-6 of Indian Post Office Act 1898. It is clear cut deficiency in service on the part of the opposite parties. 
5.    On the other hand, the representative of the opposite parties argued that as per Section 6   of Indian Post Office Act-1898 exempt 
            
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post office from any liability for loss, mis-delivery or delay or damage to any postal article in the  course of transmission by post except to such extent as the liability may be under taken by the Govt. in express terms and prayed argued that  the preservation period of speed post article is six months same has been expired and it is not possible to trace the disposal of the article under reference and further argued that the complainant has filed the complaint in DCDRF, Panipat and on 17.5.2011 same was withdrawn by the complainant vide order dated 14.9.2011 and case was closed after that no correspondence was made by the complainant. The opposite parties have relied upon the Revision Petition No.4567 of 2012 in case titled Sr. Superintendent of Post Offices Department of Post Alwar Raasthan  Vs. Dharamveer Harijan  and another Revision Ptition No.15 of 1997 in case titled  Head Post Master, Post Office Railway road Kurukshetra, Haryana & others Vs. Vijay Rattan Aggarwal.  The opposite parties have also relied upon the judgment rendered by Hon’ble Supreme Court of India  in an authority reported in Union of India Vs. Mohd. Nazim AiR 1980 SC 431 was pleased to hold:
“These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service, providing postal services subject to the provisions of the India Post Office Act and the rules made there under. The law relating to the post office in England is not very much 
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different from that in this country. In Triafus and Co. Ltd. Vs. Post Office (1957) 2 QB 352, the court of appeal held that the post office is a branch of revenue and the Post Master General does not enter into any contract with a person who entrusts to the post office a postal packet for transmission overseas. This decision approves the observations of Mansfield in whitfield Vs. LC Despencer (1778) 2 Cowp. 754 in course of his judgment, Lord Mansfield said,”The Post Master has no hire, enters into no contract, carries on no merchandize on commerce. But the post office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police in puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the crown, and officers appointed by the crown. There is no analogy therefore between the case of the post master an a common carrier”.
We have also perused the Section 6 of Post Office Act. There is not event an iota of evidence that the loss was caused fraudulently or by postman’s willful act or default. The complainant has not alleged that he was having bad blood with the officials of the post office. It is the loss of the Government and not the loss of the complainant. The liability of government of India for loss or mis-delivery of articles and loss in the course of transmission by post is not contractual but purely statutory in nature. The another judgment of the Hon’ble National 
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Commission consisting of four members bench in the case titled The Presidency Post Master and another Vs. Dr. U. Shankar Rao, Revision Petition Nos. 175 of 2000 and 247 of 192 decided on 15.4.1993 was please to hold that “ services rendered by the post office are merely statutory an there is no contractual liability. Establishing the post offices and running the postal service the central Government performs a governmental function and the Government does not engage in commercial transaction with the sender of the article through post and the charges for article transmitted by post is in the  nature of charges post by the State for the movement of the facilities provided by the Postal Department and not in consideration any commercial contract. The Post Office cannot be equated with a common carrier”. 
6.    The opposite parties have taken another objection that the complainant has filed similar complaint in DCDRF, Panipat on 17.5.2011 and the same was withdrawn vide order dated 14.9.2011 (Annexure R-5) and case was closed after receipt of decision of DCDRF, Panipat. We have perused the copy of order passed by the Forum, it is very much clear the permission was granted to the complainant to file a fresh complaint before the Forum/Court having appropriate jurisdiction. So plea taken by the opposite parties that the earlier case has been dismissed is not tenable.
7.      It is admitted fact that a speed post was booked vide postal receipt No. EH034308039IN  on 29.1.2010  to its destination at Dublin and opposite parties have charged an amount of Rs.1,094/- as speed 
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post charges and insurance premium. It is also admitted fact that parcel was not delivered at his destination and complainant has alleged that said parcel contain the document to be submitted for further admission but no evidence in this regard come on the file. It is well settled between the parties that in case of lost or damage to the parcel in that eventuality the opposite parties will liable to pay the insured amount to the tune Rs.5,000/- admittedly the parcel could not reach at his destination due to reason best known to the opposite party. No doubt complainant has also moved an application on 8.9.2010 as Ex. C-4 but opposite parties have not given the reply of letter ultimately the complainant sent a notice  through their counsel on 18.1.2011 vide Ex. C-5 the opposite parties have duly received the first letter as well as the notice and they have given the reply and admitting that complainant had booked the articles through speed post and also stated in reply of the notice that the matter is still under enquiry but they have failed to place on the file the enquiry report. Then it can be presumed that parcel get lost in transit so the complainant is entitled to receive the insured amount to the tune  of Rs.5,000/- along with interest. Hence, the complaint is partly allowed and opposite parties are directed to pay a sum of Rs.5,000/- along with interest @ 9% p.a. from the date of receipt of premium amount i.e. 29.1.2010 till its realization. So far regarding the litigation expenses In the present case complainant was forced to be indulged in the litigation due to act and conduct of the opposite parties and he is contesting the litigation since long so he  is also entitled the litigation 

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charges which is assessed to the tune of Rs.5,000/-. Copies of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.
Announced on: 9.8.2016

                                President,
 Member                 Member               District Consumer Disputes                                     Redressal Forum, Jind

 

 

 

 

 

 

 

 

 

 

 

 

 

It is admitted fact that a speed post was booked vide postal receipt No.   on       to its destination at Dubai and opposite party has charged an amount of Rs.1,094/- as speed post charges and insurance premium. It is also admitted fact that parcel was not delivered at his destination and complainant has alleged that said parcel contain the document to be submitted for further admission but no evidence in this regard come on the file. It is well settled between the parties that in case of lost or damage to the parcel in that eventuality the opposite party will liable to pay the insured amount to the tune Rs.5,000/- admitted parcel could not reach at his destination due to reason best known to the opposite party. Then it can be presumed that parcel get lost in transit so the complainant is entitled to receive the insured amount to the tune Rs.5,000/- the complainant is also entitled to refund of Rs.1094/- i.e. speed post charges. In the present case complainant was forced to be indulged in the litigation due to act and conduct of the opposite party and he is contesting the litigation since long so he also entitled the litigation charges which is assessed to the tune of Rs.5,000/-.

 

We respect the judgment tendered by opposite parties (Supra) in para No.  5 of this order but the aforesaid citation are not applicable case in hand. 
8.    Another point involved in  this case whether the complainant is entitled the article insurance amount or not?  It is not disputed that the  complainant had booked the articles through speed post  and paid the speed post charges amounting to Rs.1094/- including insurance charges and articles were insured for Rs.5000/-. It is evident from receipt dated 29.1.2010 Ex. C-3. It is not disputed that the booked speed post envelope was not delivered to the son of the complainant at his destination and the same was not returned to the complainant as undelivered. It is very much clear that the above said articles were insured for a sum of Rs.5,000/- and insurance cost  been charged including postal charges by the opposite parties from the complainant. In these circumstances the opposite parties are bound to pay  the insured amount of Rs.5,000/-.  It is unfair trade practice on the part of the opposite parties not to pay the insured amount whenever they have 
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charged the premium and article has not been delivered at its destination.

 

Hence, there is no deficiency in service on the part of the opposite parties and prayed for dismissal of complaint.
6.    In view of the above judgments rendered by the opposite parties we are not disputing the above said  judgments although the opposite parties have not given the reply of the application dated 18.2.2010 which was given by the complainant within a short period. The opposite parties have given the reply of the notice  and alleged that matter is still inquiry so they are bound to place on the record inquiry report  but they failed to produce the same. Meaning thereby they are negligent from their duty. However, in view of the judgment mentioned above we cannot give the compensation to the complainant on this ground.  

 

 

 

 

6.    After hearing of the parties and going through the record placed on file. As per Section 6 of the Indian Post Office Act-1898 that there has been loss, mis-delivery, delay or damage to any postal articles in the course of transmission by the postal department unless the same has been caused fraudulently by the officer of the post office or by the willful act or any default. Section-6 of the Act, 1898 reproduced as under:-
“6.exemption from liability for loss, mis-delivery, delay or damage-The (Government) shall not incur any liability by reason of the loss, misdelivery 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”.

 

 

 

 

 

 

 

 

 

 

 

 

 

                Roshan Lal Vs. Post Master etc.
                                       

Present:  Sh. Vikas Sharma Adv. for complainant.
              Sh. Vijender Sharma ASPO for opposite parties. 

           Arguments heard. To come up on 9.8.2016 for orders. 

                                President,
        Member              Member         DCDRF, Jind
                                  4.8.2016

Present:  Sh. Vikas Sharma Adv. for complainant.
              Sh. Vijender Sharma ASPO for opposite parties. 
          Order announced. Vide our separate order of even date, the complaint is partly allowed. File be consigned to record room after due compliance.     

                                                                 President,
        Member              Member         DCDRF, Jind
                                  9.8.2016