Punjab

StateCommission

FA/12/434

The Sub Post Master - Complainant(s)

Versus

Jaswinder Singh - Opp.Party(s)

Namit Kumar

20 Jul 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No.434 of 2012

                                                Date of Institution:   10.04.2012.

                                                Date of Decision:            20.07.2015.

1.      The Sub Post Master, Main Post Office, Sri Muktsar Sahib.

2.      Head Post Office, Faridkot through its Superintendent District   Faridkot.

                                           …..Appellants/opposite parties

Versus

 

Jaswinder Singh son of Sh. Gurbans Singh resident of village Warring Tehsil and District Muktsar Sahib.

                                                                   .….Respondent/complainant

                                                    

First appeal against order dated 28.02.2012 passed by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib.

Quorum:-

     Shri J. S. Klar, Presiding Judicial Member.

             Shri H.S. Guram, Member.

Present:-

 

     For the appellants        :     Sh. R.P. Singh, Advocate.

For the respondent      :     Sh. R.K. Girdhar, Advocate

    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                   The appellants of this appeal (opposite parties in the complaint) have directed this appeal against respondent herein (the complainant in the complaint), challenging order dated 28.02.2012 of District Consumer Disputes Redressal Forum Sri Muktsar Sahib (in short, “the District Forum”), accepting the complaint of the complainant by directing the OPs to pay the amount of Rs.41,725/- on account of actual damage and Rs.5000/- for mental harassment and litigation expenses to the complainant within two month period, failing which to pay interest 9% per annum from the date of complaint till actual payment.

2.                Complainant Jaswinder Singh has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he sent parcel on 18.07.2011 on the occasion of marriage of his relative, containing 13 ladies stitched suit value of Rs.50,000/- after duly verifying these articles through Postal Authorities. In presence of Sh. Lakhvir Singh son of Karam Singh and Jamait Singh son of Dang Singh, the complainant got packed the stitched suits and sealed as per directions of the Postal Authorities of Sri Muktsar Sahib. The Postal Authorities thoroughly checked the parcel and weighed for sending it to USA and charged Rs.2085/- from the complainant and issued receipt in this regard. The parcel of said ladies suit was of the value of Rs.50,000/-. The above said parcel reached at the address of the sister of the complainant i.e. P.O. Box 44204, Lemon Cone C.A.93244 U.S.A. and it was found in debilitated condition in a loose form without any proper seals. When it was opened by the sister of the complainant, she found the stitched clothes in torn condition and badly spoiled. The parcel was returned after sealing and packing the same and Postal Authorities in USA charged 1.80 dollars from the sister of the complainant for returning the parcel to the complainant. The complainant sent the parcel duly packed and sealed condition after getting verifying the same as per instructions of Postal Authorities. The complainant termed the act of the OPs as deficient and has, thus, filed the complaint praying for compensation of Rs.50,000/- for actual loss of stitched clothes and Rs.2085/- and 1.80 dollar of USA as postal charges, besides Rs.20,000/- for mental harassment and Rs.5500/- as litigation expenses.

3.                Upon notice, OPs appeared and filed joint written reply and contested the complaint of the complainant. It was admitted in the written reply that one foreign parcel no.CP00046118XIN was booked at Muktsar MDG Post Office, which was dispatched to the office of destination on the same day on 18.07.2011 and Rs.2085/- were charged as postal fee. The parcel was dispatched in safe and sound condition from Muktsar. It was further averred that no adverse report was received from Bathinda RMS against Muktsar MDG regarding the condition of the parcel, hence the parcel was received at Bathinda in safe and sound condition. It was also admitted that foreign parcel was got booked by OPs, which was safely dispatched to the office of destination and hence there is no deficiency in service. OPs prayed for the dismissal of the complaint.

4.                The complainant tendered in evidence his affidavit Ex.CW-3 and affidavits of other persons Ex.CW-1, Ex.CW-2, Ex.C-4 and Ex.CW-5 alongwith documents Ex.C-1 to Ex.C-7 and closed the evidence. As against it, OPs tendered in evidence affidavit of Raj Kumar Sub Post Master Muktsar MDG Ex.OP-1/A alongwith documents Ex.OP-1/B, OP-1/C, Mark-X and Mark-Y and closed the evidence thereafter. On conclusion of evidence and arguments, the District Forum Sri Muktsar Sahib accepted the complaint of the complainant against the OPs. Dissatisfied with the above order, OPs, now appellants have carried this appeal against the same.

5.                We have heard the learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us on the record for settling the controversy brewing between the parties in this case. The submission of the complainant is that the parcel was sent intact condition and it was tampered with in the transit and was delivered in spoiled condition at the destination. The complainant alleged deficiency in service on the part of the OPs, which was purchased for making the payment of postal fee. The affidavit of Gurjit Singh Tailor Master is Ex.CW-1 on the record. He stated in his affidavit that he worked as tailor master and stitched 12 ladies suit on 15.07.2011 and the same were handed over to the complainant it stitched condition after receiving the charges of stitching. Ex.C-1 is the carbon copy of bill issued by this witness for charging amount of Rs.3770/-. Ex.CW-2 is the affidavit of Lakhvir Singh. He deposed that the complainant sent parcel of 13 stitched ladies suit through OPs to his sister in USA at P.O. Box 44204, Lemon Cone C.A.9324 U.S.A. of the value of Rs.50,000/-. He further stated that the OPs duly verified by then and weighed them and checked the parcel before sending it to the destination after charging Rs.2085/- from complainant. The affidavit of Jaswinder Singh is Ex.CW-3 on the record, the stated the same facts, as pleaded in the complaint on oath. Affidavit of Rajinder Singh Ex.CW-4 on the record, who is the salesman in the shop of New Chhabra Cloth House Ferozepur and he proved the carbon copy of bill dated 15.07.2011 regarding purchase of cloth of Rs.18,000/- from the shop by the complainant for above said ladies suit. Ex.CW-5 is the affidavit of Uttam Singh on the record, stating that complainant handed over the 12 ladies suit for embroidery work and he received Rs14,000/- from the complainant for doing the work of embroidery of above ladies suits. Ex. C-4 is the copy of postal receipt. Ex.C-5 is the copy of voter card of Jasvinder Singh. Ex.C-6 is the copy of voter card of Harvansh Kaur. Ex.C-7 is the copy of Gurbans Singh.

6.                The OPs placed reliance upon the affidavit of Raj Kumar Sub Post Master Muktsar MDG. This witness has stated on oath that foreign parcel no. CP00046118XIN was booked at Muktsar MDG Post Office, which was dispatched to the office of destination on the same day on 18.07.2011 and Rs.2085/- were charged as postal fee. The parcel was dispatched in safe and sound condition from Muktsar. It was further averred that no adverse report was received from Bathinda RMS against Muktsar MDG regarding the condition of the parcel, hence the parcel was received at Bathinda in safe and sound condition. He further alleged that complainant put forth the concocted story. It was denied that the parcel containing 13 ladies suits of total value of Rs.50,000/-. It was also not admitted that OPs verified the parcel before sending it. It was denied that the parcel was loose condition and with improper sealing when received by the sister of the complainant in USA. It was denied that the ladies suits were badly damaged and spoiled in the transit. OPs also placed on record document Ex.OP-1/B and Ex.OP-1/C for sending the parcel. Mark-X is the copy of compendium on processing and disposal of public complaints. Mark Y is another document placed on record by the OPs.

7.                The counsel for the OPs, now appellants submitted that Post Office is not an agent of sender of articles and hence is not liable to pay any compensation in this regard. The counsel for the appellant referred to law laid down by Apex Court in "Union of India  Vs.  Mohd. Nazim" 1980 AIR Supreme Court-431. The Apex Court has held in this authority that "the provisions of Section 2(F), 17 and 23(3) 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 Post Office Act and the rules made thereunder". The Apex Court has concluded in this judgment that Post Office is not an agent of sender of articles like a common carrier and it is really a branch of the public service providing post service subject to the provisions of the Post Office Act and the rules made thereunder. The counsel for the appellants also referred to law laid down by the National Commission in "The Director, Postal Services A & N Inlands, Port Blair & another Vs. Shyamali Ganguly" 2003(3)CLT-582, wherein it has been held that Section 6 of Post Office Rules 1933, Rule 66-B- Postal Service – Speed Post Money Order- Delay of 10 days in delivery- Compensation – Both the lower Forums have not returned any finding on any willful default- Compensation of Rs.12,500/- held not sustainable- Complainant could get Rs.100/- which is statutory payable under the Post Office Act. The Consumer Disputes Redressal Commission Union Territory Chandigarh in "Head Postmaster, Post Office Branch, Ropar & another  Vs.  Rajnish Sharma" wherein the Union Territory Commission setting aside the order passed by the District Forum granting compensation holding it to be illegal. It was observed in this order that there was no evidence that there was fraudulent or willful act on the part of the employees of the appellants in causing loss of the article booked or that the delivery was not done in time willfully or fraudulently.

8.                From perusal of above referred authorities, the Post Office can be held liable only in case of fraud or willful negligence on its part as provided under Section 6 of Post Office Act. It is for the complainant to prove that there was willful negligence or fraud on the part of the OPs.

9.                From perusal of complaint duly supported by affidavit of Gurjit Singh Ex.CW-1, affidavit of Lakhvir Singh Ex.CW-2, his affidavit Ex.CW-3, affidavit of Rajbinder Singh Ex.CW-4 and affidavit of Uttam Singh Ex.CW-5. We find that the complainant sent the parcel in sealed condition after duly packed the said suits. Even in the written reply filed by the OPs on the record have admitted that the foreign parcel was booked at Muktsar Post Office and same was dispatched on the same day i.e. 18.07.2011 and Rs.2085/- were charged as postage fee. The parcel was dispatched in safe and sound condition from Muktsar. It was further averred that no adverse report was received from Bathinda RMS against Muktsar MDG regarding the condition of the parcel, hence the parcel was received at Bathinda in safe and sound condition. From the written reply of the OPs coupled with the affidavit of Raj Kumar Sub Post Master Muktsar MDG, it has proved that complainant sent the parcel duly packed and in sealed condition and parcel was received by the sister of complainant in a deliberated condition and spoiled condition due to willful negligence on the part of the OPs in the transit. The above referred authorities as cited by counsel for the appellants would be applicable unless and until fraud and willful negligent is established on the record. We find that the parcel has been spoiled on the way due to willful act on the part of the employees of the OPs in causing loss of the articles booked and delivery was not done in proper condition. The evidence of the complainant coupled with the written version of the OPs has proved that the foreign parcel was spoiled due to willful act of the OPs as such the instant case is outside the demesne of Section 6 of Post Office Act.

10.              In view of our above findings recorded by us that the parcel was spoiled due to willful act of the OPs on the transit and hence the OPs, now appellants cannot take shelter of Section 6 of Post Office Act and the judgments cited before us. The District Forum has thus rightly awarded the compensation to the complainant against the OPs, as it is a specific case of willful act in spoiling the parcel of the complainant by the employees of the OPs. The order of the District Forum is affirmed in the appeal.

11.              As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed.

12.              The appellant had deposited the amount of Rs.23,400/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days. The remaining amount shall be paid by the OPs to the complainant as per the order of District Forum Sri Muktsar Sahib.

13.              Arguments in this appeal were heard on 17.07.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                           (H.S.GURAM)

                                                                              MEMBER

 

July 20, 2015.                                                            

(MM)