IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 270/09 DATED 05.10.2009<br /> ORDER<br /> <br /> Complainant Smt.P.Udayakumari, Office Superintendent, Govt. Industrial Training Centre, Madhar Block, TAPCMS Building, Periyapatna, Mysore District.<br /> (INPERSON)<br /> Vs. <br /> Opposite Parties 1. Chief Executive Officer, Karnataka Building and other Construction Labours Welfare Fund Board, Kousalya Bhavana, Bhannerghatta Road, Bangalore-560029.<br /> 2. Chief Manager, Canara Bank, Homegowda Nagara, Bangalore-560029.<br /> 3. Post Master, Post Office, PEriyapatna, Mysore District.<br /> (O.P.2 – Exparte and By Sri. S.Shivanna, Advocate for O.P.3)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 27.07.2009<br /> Date of appearance of O.P. : 14.08.2009<br /> Date of order : 05.10.2009<br /> Duration of Proceeding : 1 MONTH 21 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Complainant has filed the complaint against the opposite parties, seeking compensation of Rs.85,000/-, on the ground that, the first opposite party received and encashed the demand draft, which was not concerned to it, from the second opposite party on the ground that it paid the amount of the D.D. to wrong person than the payee and from the third opposite party on the ground of wrong delivery of the registered postal cover containing the D.D. to wrong person, that is first opposite party.<br /> <br /> 2. Amongst other facts in the complaint, it is alleged that, complainant had obtained D.D. for Rs.8,224/- on 04.10.2008 from the Corporation Bank, Periyapatna Branch in favour of Karnataka Labour Employment and Training Departments Employees Co-operative Society (hereinafter for brevity will be referred to as society), and was sent through third opposite party by registered post. Complainant did not receive receipt from the society. Then, complainant contacted the society over phone and also personally approached and found that the society had not received the D.D. Then, on 04.02.2009, the complainant lodged complaint with third opposite party for non-delivery of the registered postal cover to the addressee. The complainant enquired with Corporation Bank, Periyapatna Branch. That Bank orally informed the complainant that, on 19.10.2008 the D.D. was encashed. The complainant suspected and approached the Apex Bank, in which account of the society is maintained. That Bank helped the complainant to trace the information. Then, it was learnt, the D.D. was encashed through some Canara Bank Branch at Bangalore. Ultimately, after making enquiries, it was found the D.D. was encashed from second opposite party. It was informed that amount of the D.D. has been paid to first opposite party. Complainant approached first opposite party and found that it had received the amount of the D.D. But, the third opposite party did not furnish information to the complainant, as to whom the registered post was delivered. Several remainders were written to third opposite party. There was no reply. However, department of post customer care centre, Mysore informed the complainant that on 10.10.2008, the registered post was delivered. But, it did not inform to whom it was delivered. Then, complainant again wrote remainder. The second opposite party neither replied to the complainant nor informed in writing to whom the D.D. amount was paid. It is found that, the second opposite party wrongly paid the amount of the D.D. to the first opposite party, though payee of the D.D. was the society. The first opposite party wrongly received the amount of the D.D. and utilized this amount for about 6 months. After several correspondences, the first opposite party ultimately credited the amount of the D.D. to the society. But, so far the complainant has not received any receipt from the society. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The Forum had issued notice to second and third opposite parties only. The second opposite party despite due service of the notice, has not appeared before the Forum. However, a letter was sent seeking a month time to obtain permission from the Circle office to submit reply. But, as noted above, the second opposite party has not appeared before the Forum.<br /> <br /> 4. For the third opposite party, the Senior Superintendent of Post Office, Mysore Division, Mysore has filed the version, stating that the allegations against the department are denied. It is contended that third opposite party is only dispatching post office. Once, the instrument left third opposite party, it is nothing to do with it. Hence, there is no cause of action against the third opposite party and wrongly it has been made as a party. It is contended that the delivery post office ought to have been made party. Hence, complaint is bad for non-joinder of party. It is stated, the complainant has received the postal acknowledgement, from which, she could come to know to whom the article was delivered. It is stated as per the records, the letter reached the jurisdictional, D.R. College Post Office, Bangalore for delivery to the addressee. Wrong delivery of article came to the knowledge of third opposite party only after the complainant lodged the complaint. The registered letter was inadvertently delivered by the concerned postman to wrong addressee. Both the offices are situated and functioning in the same building. Both the addresses begin with “the Karnataka”. The postman carries bundle of letters to the said offices and by oversight might have mixed the registered letter pertaining to first opposite party. Since, postman is human being mistake has happened. It is contended that when D.D. was crossed one ought to have been credited to the payee only. Instead, the second opposite party has credited the amount into the account of wrong person, that is first opposite party. It is stated, complainant has not made allegations against the postal employees. Further, it is contended that under section 6 of the Indian Postal Office Act, the opposite party is not liable. Also, it is contended that, there is no deficiency of service nor willful act or default on the part of postal department. Hence, it is prayed to dismiss the complaint.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed her affidavit and has produced several documents. On the other hand, for the third opposite party the Senior Superintendent of Post Office, Mysore Division, Mysore has filed his affidavit, wherein the facts with reference to the version are stated. For the complainant, as well as third opposite party written arguments are filed. We have perused the material on record.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of second and third opposite parties and that she is entitled to reliefs sought?<br /> 2. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- Before proceeding to consider the point, it is relevant to note that no notice was issued to the first opposite party, since no deficiency of service on its part was made out. It is true in the complaint, several allegations against the first opposite party are made, and particularly that it wrongly received the D.D. and got it encashed and also, wrongly utilized the amount of the said D.D. But, for the said reason, no deficiency of service is made out. Moreover, ultimately, the first opposite party has credited the amount of the D.D. to the society.<br /> <br /> 9. In substance, grievance of the complainant is that, the payee of the D.D. was the Co-operative Society, but, the second opposite party bank wrongly paid the amount of the said D.D. to the first opposite party. Considering the facts and the material on record, it has been established by the complainant that though she had obtained the D.D. in question in favour of the Co-operative Society and the society was the payee and further, the D.D. was account payee, the second opposite party wrongly or negligently paid or credited the amount into the account of the first opposite party. Hence, no further discussion on the point is necessary. Consequently, since the second opposite party has paid the amount of the account payee D.D. to wrong person, certainly it amounts to deficiency in service.<br /> <br /> 10. As regards, third opposite party or the postal department, grievance of the complainant is that, through registered post, the D.D. was sent to the Co-operative Society, but wrongly it has been delivered to the first opposite party. The third opposite party in the objection, as well as affidavit has stated, the article was wrongly delivered or inadvertently delivered to the first opposite party. Hence, delivery of registered letter to wrong addressee, amounts to deficiency in service.<br /> <br /> 11. The third opposite party has contended that, complaint is bad for mis-joinder and non-joinder of party. It is contended that third opposite party is dispatching post office and soon after, the article is dispatched, it is nothing to do with it. It is important to note that, the third opposite party received the registered article from the complainant collecting postal charges, so as to deliver it to the right addressee. Even otherwise, as could be seen from the facts alleged in the complaint and stated by the complainant in the affidavit, as well as the documents, despite lodging several complaints by the complainant with the third opposite party, absolutely there was no reply or response, as to whom the registered post was delivered. Since, the third opposite party had received the article, it had to reply to the complainant atleast to whom or to which post office, the article was forwarded. That has not been done. Further contention of the third opposite party is that, complaint is bad for non-joinder of the D.R. College Post Office, Bangalore. In the version and affidavit, it is stated that the article that the complainant had sent, had reached the said jurisdictional post office for delivery to the addressee. The complainant wrote several letters and remainders including the complaint to ascertain the delivery of the registered letter, but till lodging the present complaint, the third opposite party or any other postal authority informed the complainant, that the article was received by D.R.College Post Office for delivery to the addressee. Hence, the contention that complaint is bad for non-joinder of party, cannot be appreciated. Even otherwise, it is important to note that in the version filed for the third opposite party by Senior Superintendent of post offices, it is mentioned that all the allegations against the “Department” are denied etc., Hence, in fact, the Senior Superintendent of post offices having filed the version and denied the allegations of the complainant on behalf of the entire postal department, amounts to representation of the postal department itself. Under the circumstances, we cannot make much on the alleged technicality in the matter.<br /> <br /> 12. However, it is relevant to note that, the third opposite party with reference to section 6 of the Indian Post Office Act, has contended that, it is exempted from liability for loss, mis-delivery or damage of any postal article or letter. It reads as under:-<br /> “Exemption from liability for loss, mis-delivery, delay or damage, the Govt. shall not incur any liability by reason of loss, misdelivery or delay or damage to any postal article in the course of transmission by post except in so far as such liability may, in express terms be undertaken by the Central Govt. as hereunder provided and no officer or post office incur any liability by any reason of such loss, misdelivery, delay or damage unless has caused the same fraudulently or his willful act or default.”<br /> <br /> 13. With reference to the said section, it is submitted for the third opposite party that the postal department is not liable. In this connection, it is relevant to note, the recent decision of the Hon’ble Madhya Pradesh State Commission in Prawar Adhikshaka Vs. Harimohan and others reported in III (2009) CPJ 289. The Hon’ble Commission in this order has referred to section 2(i) of the Act, wherein postal articles have been defined as <br /> “The expression of postal articles includes a letter, postcard, newspaper, book pattern or sample packet, parcel and every article or thing transmissible by post”. <br /> Thus, the Hon’ble Commission has held that the definition of postal article does not include in the definition and hence, it gets excluded from section 6 from exemption from the liability. The Hon’ble Commission has held that the post office cannot claim exemption under section 6 of the Act. In view of the said finding, in the case on hand, admittedly, the complainant had sent the D.D. by registered port and hence, the third opposite party cannot claim exemption under section 6 of the Act. Also, it is relevant to note that the complainant had sent the D.D. by registered post by paying registration charges to the postal authority instead of sending it by ordinary post. Charges for ordinary post, as well as by registered post, are different. For sending the article by registered post, extra charges are levied or collected by the postal department, than the ordinary post. When the postal authority collected extra charges, it should take extra care in the matter. Hence, in the case on hand, admittedly, the registered cover was delivered to wrong person, than the addressee. Hence, the third opposite party is liable for deficiency in service.<br /> <br /> 14. Also, it is relevant to note, the decision of the Hon’ble National Commission in case of Superintendent of Post Offices Vs. Upuopokta Surakshya Parishad, has observed that, <br /> <br /> “In a number of cases we have noticed that the postal department has been taking shelter under the provision of Section 6 of the Indian Postal Act which were enacted as far back as 1898 when the then Government of the day acquired total immunity for any action of the postal department resulting in a loss to the consumer. In fact, through this Section, the then Government made the postal department totally immune from any accountability to the people whom it was serving for consideration, even if such service was subsidized in respect of certain categories of letters and postal articles etc. This provision made in 1898 in the Indian Postal Act is totally antiquated and out of the tune with the spirit of a democratic Government in a parliamentary system where the actions of the Government functionaries are subject to scrutiny and all such functionaries are accountable for any lapse or misdeed on their part in the discharge of their duty. We, therefore, feel that it is time that a comprehensive review of the Indian Postal Act is undertaken so as to incorporate suitable amendments and modifications to bring it in tune with the functioning of a democratic and accountable Government.”<br /> <br /> 15. Now, coming to the consider the liability on the part of second opposite party, all along the complainant has alleged that the second opposite party did not assist her in ascertaining who has encashed the D.D. and even it did not reply. It is claimed by the complainant that many times, she had to travel from Periyapatna to Bangalore etc., Taking into consideration of all these facts, particularly that when the D.D. was account payee, the second opposite party without looking into the name of the payee in the D.D., negligently paid the amount to the first opposite party. Hence, the second opposite party is liable to answer the deficiency of the complainant. <br /> <br /> 16. Considering the entire facts, we feel it just to award compensation of Rs.6,000/- to the complainant.<br /> <br /> 17. Before concluding, the observations made by the Hon’ble Apex Court in Lucknow Development Authority Vs. M.K.Gupta III (1993) CPJ 7 needs to be quoted. <br /> <br /> “Today the issue thus is not only of award of compensation but who should bear the brunt. 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 outlook. The authority empowered to function under a Statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bonafide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duty proved then it ahs a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant are over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payer’s money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”<br /> <br /> 18. Hence, it is just to direct the second and third opposite parties to recover the amount from the concerned persons in accordance with law.<br /> <br /> 19. Accordingly we answer the point partly in affirmative.<br /> <br /> 20. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The second opposite party is hereby directed to pay a sum of Rs.5,000/- and the third opposite party a sum of Rs.1,000/- compensation to the complainant towards mental agony and inconvenience caused, within a month from the date of this order, failing which, the amount shall carry interest at the rate of 12% p.a. from the date of this order, till realization.<br /> 3. Further, the second and third opposite parties each shall pay a sum of Rs.500/- to the complainant towards cost of the proceedings.<br /> 4. It is observed that second and third opposite parties may recover the amount from the concerned responsible person/persons, in accordance with law.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 5th October 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />