IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Wednesday the 20^th day of April 2022.

                                      Filed on  08. 07. 2021

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P R Sholy, B.A., LLB (Member)In

CC/No.128/2021

between

Complainant:-                                                     Opposite parties:-

1.    Manu Thomas                                                 1.  The Post Master

       Kanjikkal,                                                            Head Post office,

       AM Road, Eruva East P.O                                    Kayamkulam - 690502

Kayamkulam                                                    2.  Sub Post Master,

                                                                             Kareelakulangara

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019.

Material averments briefly discussed are as follows:-

1.     On 22.06.21 complainant booked a parcel weighing 9.700 Kg (Steel utensils and food items) to UK through the 1^st opposite party by paying an amount of Rs.5,888.20/-.   Packing was done in a carton the presence of officers of the 1^st opposite party.  On 02.07.21 the parcel was returned to the complainant and the packing was damaged since it was not handled with care. Opposite parties were not able to explain why it was returned in spite of customs clearance.  They were not ready to return the parcel charges.  Opposite parties were not prepared to accept their liability.  This amounts to deficiency of service. Complainant sustained monitory loss due to the act of opposite parties.  Hence the complaint is filed to resent the articles to the destination without collecting any amount or to refund the postage and to pay compensation to the complainant. 

Opposite parties filed a joint version mainly contenting as follows:-

2.     Complaint is not maintainable either in law or on facts and is liable to be dismissed.  On 22.06.21 articles weighing 9.700 Kg were booked at Kayamkulam head post office to Manchester United Kingdom by paying an amount of Rs.5,888.20/-.  It was dispatched in sound condition to Kayamkulam RMS from Kayamkulam head office on 22.06.21 itself and thereafter to NSH Trivandrum on 23.06.21.  The article was received at NSH Kochi on 23.06.21 from NSH Trivandrum in bag No.EBL 0008338397.  The item was received by Kochi EMS on the same day and dispatched to Kochi Foreign post for customs clearance in bag No.EBL0761546315 on 23.06.21 itself.  It was received on 24.06.21 in partially open and leaky condition without declaration of contents in CN23 customs declaration.  The item was repacked and dispatched to Kochi EMS by Kochi Foreign post on 25.06.21 in bag No.EBL 0761463716.  The item passed by customs, Kochi was received on Kochi EMS on 29.06.21 from Kochi Foreign post in leaky condition without proper packing and incomplete customs declaration.  Hence the item was returned to Kareelakulangara post office with error report by Kochi EMS on 29.06.21 and delivered to the complainant with inventory of the items available after ensuring there is no weight loss in the speed post dated 01.07.21.

3.     The item was returned with the customs clearance certificate as “passed by customs Cochin” only to confirm that the items included in the speed post article are non prohibited items certified by customs wing.  But it does not ensure that it is the safe passage of the speed post article to the next destination.  One of the items in the speed post article was found to be chutney powder which was oily in nature and had spilled out all over the carton.  Due to this the article was returned since there are instructions from civil aviation security officer, Cochin International Airport Ltd. that articles in leaky condition are prohibited for air transmission since it will affect civil aviation operations endangering human life and damage to other properties. 

4.     The amount collected from the complainant is not refundable as the speed post articles packing (including packing made inside) violated the guidelines issued which stated that every parcel must be packed and closed in a manner with due regard to the weight and nature of the contents as well as mode of transport and length of the journey: the packing and closing must protect the contents so that these cannot be damaged by pressure or by repeated handlings; they must also be such that it is impossible to tamper with the contents without leaving an obvious trace of violation.   

5.     The speed post article was dispatched from booking office (Kayamkulam HO) and hence post master Kayamkulam did not provide the enquiry raised by the complainant.  The article was packed and dispatched in carton box and the packing of the article was the sole responsibility of the sender (complainant).  The article was returned to the sender as per the guidelines and manual.  Civil aviation security of Cochin International Airport Ltd. has given instructions that articles in leaky conditions are prohibited for air transmission since it will affect civil aviation operations endangering human life and damage to other properties and it should not be handed over for transmission and that such items, be found will retain by the authorities and proceedings taken as per rules. 

6.     Sec.6 of the Indian Post office Act 1898 reads “Exception from liability for loss, misdelivery, 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, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.  Hence the complaint may be dismissed with cost. 

7.     On the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to get an order to sent the articles without payment or entitled to get refund of                     Rs.5,888.20/-?
3.  Whether the complainant is entitled to realise compensation?
4. Reliefs and cost?

8.     Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A3 from the side of the complainant. Opposite parties have not adduced any oral evidence Ext.B1 was marked during the complainant PW1.

Point No. 1 to 3

9.     PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext. A1 to A3. 

10.   On 22/6/2021   PW1, the complainant sent a parcel containing  Kitchen utensils and certain food items to  Manchester United Kingdom through the 1^st opposite party, Head Post Office, Kayamkulam.  An amount of Rs. 5888/- was collected from him and the total weight of the article was 9.700Kgms.  However though as per Ext.A3 the article was cleared by customs on 1/7/2021 it was returned through 2^nd opposite party Sub Post Office, Kareelakulangara. Though PW1 contacted opposite parties and thereafter sent a twitter message to the post office, Mavelikara he could not get a satisfactory explanation for return of the article.  Hence the complaint is filed either to send the articles free of cost once more or to return the amount of Rs.5888/- which was collected him from as freight charges.   He is also claiming compensation for the physical and mental agonies sustained by him.  Opposite parties filed a joint version admitting the receipt of the article and collecting Rs. 5888/- as postage charges. It was duly sent to Kochi EMS through Trivandrum EMS and customs clearance certificate was obtained.  According to them the customs clearance certificate only means that there is no prohibited items and it doesn’t mean that it is fit for sending to the other destination. It was contented that one of the articles which was Chutney Powder was oily in nature and had spilled out all over the carton.  Due  to this the article was returned since there are instruction from Civil Aviation security officer,  Cochin International Air port Ltd that articles in leaking conditions are prohibited for air transmission.  It was also contended that as per the postal manual it is the duty of the sender to give proper packing. As per the Indian Postal Act Sec.6 they are exempted for loss, mis -delivery, delay or damages. Hence according to them the complaint is not maintainable and it is only to be dismissed. Complainant got examined as PW1 and marked Ext.A1 to A3.  During his cross examination Ext.B1 inventory prepared by the 2^nd opposite party was marked.   Except marking Ext.B1 no oral evidence was adduced from the side of opposite parties.   Relying upon the oral evidence coupled with Ext.A1 to A3 documents complainant contended that the complaint is proved as per law and so he is entitled for the relief claimed in the complaint.   Per contra opposite party contented that it was the duty of the customer to pack the articles properly.  Due to the  defect in the packing certain articles were spilled all over the carton which resulted returning the same.  Further they are not liable to compensate the complainant as per Sec.6 of the Indian Post office Act. Hence the complaint is only to be dismissed. Complainant as well as opposite parties filed argument notes in support of their contentions.

11.   The fact that on 22/6/2021 complainant booked a parcel weighing 9.700 kgms to Manchester, United Kingdom through the 1^st opposite party is not in dispute.  It is also admitted that an amount of Rs.5888/- was collected by them being the postage charges.  Ext.A3 was relied upon by the complainant to prove that the parcel was cleared by the customs. However it was returned on 1/7/2021through the 2^nd opposite party. PW1 stated that he was running from Pillar to post to get the reason for returning the articles he was not provided with the same.  In the version it is contented that one of the article which is chutney powder was oily in nature and it was spilled over the parcel and so they could not sent the same to the destination due to the instruction from the Civil Aviation Department. It was also pointed out by the opposite party that from Ext.B1 inventory it is revealed that the entire 12 items were returned to PW1 and the total weight was 9.700 kgms   which was equal to the weight of the parcel which was sent through 1^st opposite party.  According to PW1  though inventory was prepared in  his presence  the weight was written later. The total weight 9.700 kmgs was not written in his presence and it was inserted later.  

12.   Opposite parties are taking  shelter on a contention that it was the duty of customer/complainant to pack the materials and they are not liable if the packing is not proper.  Complainant has got a case that the packing was done in the presence of officers of the 1^st opposite party at Head Post Office, Kayamkulam. Since the packing was done in the presence of officials of 1^st opposite party now they cannot turn round and say that the packing was not proper.  PW1 contented that at the time of accepting the parcel for sending towards the destination 1st opposite party had ascertained that there is no mistake in the packing.  Hence at a later stage opposite parties cannot take a contention that the packing was not proper and due to that one article was spilled. Further as contented by PW1 the parcel was opened by the customs department to ascertain the contents and they certified that “passed by customs Cochin”.  If that is so it is pellucid that the parcel was opened by the customs department at Cochin and so PW1 cannot be blamed that the packing was not proper.   It is true that from Ext.B1 inventory it is seen that one item was chutney powder.  However in Ext.B1 it is not stated that it was oily in nature.  Normally chutney powder will be mixed with oil only at the time of consumption and so the contention of the opposite parties that it was oily in nature and it was spilled all over the parcel cannot be accepted.   Though opposite parties contented that as per Ext.B1 the total weight of articles returned was 9.700kgms which was booked as per Ext.A1 receipts, according to PW1 the weight was inserted   at a later stage without his knowledge and consent.   In Ext.B1 it is also noticed that the total weight of 9.700 kgms is written in a different handwriting.  So the case of PW1 that it was written later is justified.

13.   As discussed earlier when the parcel was booked at 1^st opposite party it was packed in their presence. Thereafter booking was accepted and so now they cannot turn round and say that the packing was improper.  Admittedly Rs. 5888/- was collected by 1^st opposite party being the parcel charges towards United Kingdom. Though in Ext.A2 letter it is stated that when the parcel was received for customs examination at Cochin it was in a broken condition, there is no supporting evidence of customs authorities to prove such a contention.   So from the evidence on record it is crystal clear that at the time of accepting the parcel for onward transmission by the 1^st opposite party the packing was proper and it reached the customs department. The parcel also was passed by customs Cochin and               so why thereafter it was returned is a mystery.  Though opposite parties contented that one of the items chutney powder was oily in nature and it was spilled all over the parcel there is no convincing evidence for the same.  Further in Ext.B1 inventory also the 10^th  item is chutney powder and no where it is stated that it was mixed with oil.   It is also noticed that though a proof affidavit was filed by the opposite party the witness did not enter the witness box to prove the case on oath. Opposite party contented that as per Sec.6 of the Indian Post Office Act, 1898 opposite parties are exempted from liability.

 Sec.6 reads as follows:-

“Exemption from liability for loss, misdelivery, 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, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default.”

14.   Here in this case the article was not delivered and it was returned to the sender, on a contention that one of the item was oily in nature and it was the spilled all over the packet.   If that is so it was a duty of the opposite party to prove the reason to retain the article by convincing evidence.  Here in this case as discussed earlier in Ext.B1 inventory prepared by the 2^nd opposite party it is stated that the 10th item is chutney powder. No where it is stated that it was containing oil and it was spilled all over the parcel.  In said circumstances we have no hesitation to hold that opposite parties failed to prove that the article could not be sent to the destination due to breakage of the carton and spilling of one item. In said circumstances complainant is entitled for return of the amount collected on him for sending the article.

15.   According to PW1 though he contacted the opposite parties several times, he could not get a satisfactory explanation for return of the article.  Finally he sent twitter message to Mavelikara Post office.  So it can be seen that PW1 was running from Pillar to post even for getting a explanation for returning the articles.  In said circumstances he is entitled for compensation and we are limiting to Rs.5000/-. These points are found accordingly.

Point No.4

16.   In the result complaint is allowed.

A)  Complainant is allowed to realize an amount of Rs.5,888/- being the amount collected from him by the  1^st opposite party for sending the parcel along with interest @ 9% per annum from 1/7/2021 till realization.

B)  Complainant is allowed to realize an amount of Rs.5000/- as compensation from the opposite parties.

C)  Complainant is allowed to realize an amount of Rs. 2000/- as cost from the opposite parties.

The order shall be complied within one month from the date of receipt of this order

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 20^th day of April, 2022.        

                                    Sd/-Sri.S.SanthoshKumar(President)

Sd/-Smt.C.K.Lekhamma (Member)

Appendix:-

Evidence of the complainant:-

PW1               -    Manu Thomas (complainant)

  Ext.A1           -    Receipt

Ext.A2            -    Letter dated 01.7.21

Evidence of the opposite parties:- NIL

Ext.B1            -    Inventory

//True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                  Assistant Registrar

Typed by:- Sa/-

Compared by:-